Joe Scarborough and Ezra Klein are helping to normalize guilt-by-association smears targeting defense attorneys based on their clients, arguing that Hillary Clinton's work defending an alleged child rapist in 1975 is becoming a political liability.
The American Bar Association has condemned this type of attack as "disturbing."
Clinton's work on the case, known publicly and reported on for years, re-emerged after the Washington Free Beacon violated library policy and published an interview Clinton gave in the mid-1980s discussing her legal representation of the alleged rapist.
Clinton defended her work on the case in an interview with Mumsnet that was published July 4, explaining once again that she was assigned to the case, that she asked to be relieved from the assignment, and that she "had a professional duty to represent my client to the best of my ability."
Reporting on the warmed-over scrutiny of the case on Tuesday, Vox claimed that "a criminal defense case from Hillary Clinton's past as a lawyer is becoming a political liability." The headline ominously stated: "Hillary Clinton's legal career is coming back to haunt her."
Klein, the co-founder of Vox, appeared on Morning Joe to expand on the idea that Clinton's legal work was a political liability. "I think it's hard for folks to understand why you would go to the mat for a client who had done something terrible who you knew is guilty," Klein said. "And what she's saying there is that that was her obligation as a lawyer and that the prosecution had done a horrible job."
While Scarborough at one point agreed that attorneys "usually take that court appointment and do their best to defend their client," he subsequently tried to parse the distinction between a public defender and Clinton's role as a court-appointed attorney from a legal aid clinic:
SCARBOROUGH: [I]sn't there a distinction, though, between when you are hired by a public defender's office, and the purpose of the public defender's office is actually to give people the representation that they are guaranteed by the Constitution of the United States of America? And then you have Hillary Clinton's case, where she was running a legal clinic. She may have been court-appointed, but obviously she had a lot more discretion on whether she was going to take a child rapist or not on as a client than if you are a public defender, where you are working as a public defender, you have no choice.
Legal and child welfare experts told Newsday that Clinton's work in the case was appropriate in 2008, the last time her work in the case came under media scrutiny. Clinton wrote about the case in her 2003 autobiography, Living History. Jonathan Adler, a libertarian law professor, has urged Clinton's critics not to attack her representation in this case, specifically warning that it could be chilling to send a message to young attorneys that representing unpopular clients could become a "political liability."
Adler is not alone. Republicans Ken Starr, Lindsey Graham, and Michael Mukasey have all cautioned against using an attorney's clients as a cudgel.
Scarborough's and Klein's analysis of why this case is a liability for Clinton focused in part on their interpretation of Clinton's tone in the 30-year-old interview, which Scarborough claimed amounted to "boasting" about her successful defense of the alleged rapist. "She sounded boastful on the tape that she was able to get this 41-year-old guy who raped a young girl, a minor girl, and get him off and was laughing about the evidence, laughing about the lie detector test, laughing about a lot of it. It does sound -- it's disturbing to say the least, isn't it?"
Scarborough did not reconcile his claim that Clinton was being "boastful" with the fact that she called the case "sad" while explaining how the prosecution had destroyed evidence, forming the basis of an eventual plea bargain.
CLINTON: But you know what was sad about it was that the prosecutors had evidence, among which was his underwear. ... His underwear, which was bloody. Sent it down to the crime lab [unintelligible]. The crime lab took the pair of underpants, neatly cut out the part that they were going to test, tested it, came back with the result of what kind of blood it was, what was mixed in with it, then sent the pants back with a hole in it as evidence.
So I got an order to see the evidence, and the prosecutor didn't want me to see the evidence. I had to go to Maupin Cummings and convince Maupin that yes indeed I had a right to see the evidence before it was presented.
So they presented the underpants with a hole in it. I said, "What kind of evidence is that?" You know, a pair of underpants with a hole in it. Course the crime lab had thrown away the piece that they'd cut out. It was really odd. I mean, I plea-bargained it down because it turned out they didn't have any evidence.
Morning Joe did air parts of the interview where Clinton discussed what she thought was sad about the case.
CNN legal analyst Paul Callan has rejected claims that Clinton can be heard laughing about the result of the case and instead argued that Clinton is clearly laughing generally about the legal process. "It's a lawyer telling a lawyer tale," Callahan said.
The criticism of Clinton is part of an alarming trend of using a lawyer's clients as a disqualification for public service. In March, the Senate blocked Debo Adegbile's nomination to the Department of Justice's Civil Rights Division amid scrutiny of his work at the NAACP on behalf of an accused cop killer. And the American Bar Association condemned the Republican Governors' Association earlier this year for running ads attacking a South Carolina gubernatorial candidate for his work as a criminal defense attorney.
In a letter to RGA Chairman Chris Christie, ABA President James Silkenat warned: "The Republican Governor's Association ad sends a disturbing message to lawyers -- that their clients' past actions or beliefs will stain their own careers, especially if they want to serve their country in public office."