Yeah, I know. I shouldn’t be surprised.
Following the lead of the D.C. Court of Appeals, Maryland’s highest court whitewashed the criminal misconduct of three attorneys who destroyed more than 30,000 emails while representing Hillary Clinton. In an opinion issued this morning, Chief Justice Mary Ellen Barbera of the Maryland Court of Appeals wrote that a lower court lacked jurisdiction to compel the Attorney Grievance Commission to investigate David Kendall, Cheryl Mills, and Heather Samuelson.
The court’s jurisdictional conclusion is a plausible one, but it cleverly sidesteps the real scandal, which is found near the beginning of the opinion: the court refused to hear my cross-petition. Allow me to translate. When Maryland bar prosecutors appealed to the Court of Appeals (“COA”), they argued that only the COA could compel them to investigate Mr. Kendall, Ms. Mills, and Ms. Samuelson. If that’s true, I responded, then the COA itself should order bar prosecutors to investigate. The COA’s response? It simply refused to hear my argument, and it did so without any explanation.
It’s hard to win an argument when the court refuses to hear it. Furthermore, as I noted in a post last year, the COA had serious conflicts of interest because it changed the rules after the fact in response to ex parte communications with bar counsel. When I asked the judges to recuse themselves, they likewise denied that request without an explanation.
Of course, if a peon lawyer like me had intentionally destroyed evidence that was covered by Congressional and court subpoenas, he or she would have been disbarred and sent to prison (although not necessarily in that order). But Mr. Kendall, Ms. Mills, and Ms. Samuelson are covered by the Clinton protection racket, ergo they need not worry about the rules and laws that apply to mere mortals.
THE CLINTONS ARE STILL PROTECTED IN ARKANSAS
Speaking of the Clinton protection racket, my bar grievance against Hillary Clinton is still twisting in the wind. I first filed the grievance on September 1, 2016, and Arkansas bar prosecutors dismissed it last July, apparently without an investigation. I appealed the dismissal, and I was first told that I could expect a decision in January or February, then a few weeks later, then a few weeks later, then a few weeks later…
A MODEST PROPOSAL FOR SABOTAGE
Lawyers in Maryland and elsewhere can and should use the double standards of bar prosecutors to their advantage. As you might expect, attorneys are routinely prosecuted for rules violations that are far less consequential than the intentional destruction of evidence. Most of those lawyers, however, do not assert a selective prosecution or selective enforcement defense.
That’s easy to fix, but you have to plan ahead. First, you need to exercise your First Amendment rights to criticize the corruption and hypocrisy of bar prosecutors. If you’re a lawyer in Maryland, send a letter to the governor and to your legislators objecting to the favoritism shown to Mr. Kendall, et al., and copy that letter to bar prosecutors and the Attorney Grievance Commission. Why? If bar prosecutors subsequently file charges against you, you can argue quite plausibly that they are retaliating because you exercised your First Amendment rights to criticize them.
Next, you need to establish that you were prosecuted when “comparably-situated” attorneys were not. In most jurisdictions, that’s they easy part. In Maryland, you would simply argue that Mr. Kendall, et al. intentionally committed multiple felonies, yet the bar prosecutors refused to investigate. Unless you’ve done something worse than destroying 30,000-plus pieces of evidence (on purpose), you can make a strong argument that you’ve been subjected to a far harsher standard than Mrs. Clinton’s lawyers.
Full disclosure: Judges generally don’t like selective prosecution defenses, no matter how strong they are. And merely by criticizing bar prosecutors, you can indeed trigger them to retaliate. Just look at what happened to me after I blogged about corruption among California bar prosecutors. Even so, I think it’s worthwhile to send an “innoculation letter” as described above, because there’s a difference between sending a letter to public officials versus doing what I did, i.e., filing a bar complaint against those bar prosecutors and then blogging about it. If enough lawyers start sending letters to the governor and to legislators, and enough lawyers start asserting selective prosecution defenses, maybe bar prosecutors will think twice about playing their dirty political games.
If you’re looking for a head start on your legal research, I have uploaded my opening brief in Ty Clevenger v. Steven Moawad, et al., Case No. 17-17136 (9th Circuit), as well as the appellee’s brief and my reply brief.
PLAYING POLITICS AT TAXPAYER’S EXPENSE
Yesterday, the Washington Examiner reported that one of the hecklers who chased U.S. Homeland Security Kirstjen Nielsen out of a D.C. restaurant Tuesday night was Allison Hrabar, an employee of the U.S. Department of Justice. In an interview with The Daily Caller, Ms. Hrabar said her activities were protected by the First Amendment because she was heckling on her own personal time, and she is probably right about that. But there’s more to the story.
The Daily Caller found political tweets that Ms. Hrabar sent during Wednesday daytime hours, presumably while she was on the government clock. I filed a complaint against Ms. Hrabar this morning with the Office of Special Counsel alleging Hatch Act violations. I don’t care whether Ms. Hrabar is a member of the Democratic Socialists of America or whether she is obnoxious and uncivil on her own time, but she better not be playing politics while she’s working for me. The same goes for anyone else — Republican, Democrat, or otherwise — who is being paid by taxpayers.