Trump's Debate Strategy: Revive Conservative Smear That Undermines The American Justice System
Research ››› ››› MATT GERTZ
Donald Trump is signaling that during the October 9 debate, he will adopt the Washington Free Beacon's smear of former Secretary of State Hillary Clinton for her work in 1975 as a court-appointed attorney for an indigent defendant alleged to have raped a 12-year-old girl, a case she detailed in her memoir a decade ago. As Republican lawyers and the American Bar Association have previously noted, such criticisms undermine the American system of justice.
Trump To Revive Free Beacon's Smear About Clinton's Defense Of A Rapist
Trump Appears With Victim Whose Rapist Clinton Defended At Pre-Debate Press Event. Kathy Shelton was one of several women who appeared with Trump at a "surprise panel of Bill Clinton's accusers" immediately prior to the debate. As a young lawyer, in 1975 Clinton represented an indigent defendant alleged to have raped Shelton. [Politico, 10/9/16]
Free Beacon Unearthed Audio Tapes Of Clinton Discussing The Case In The Early 1980s. From a June 15, 2014, article from the conservative Washington Free Beacon:
Newly discovered audio recordings of Hillary Clinton from the early 1980s include the former first lady's frank and detailed assessment of the most significant criminal case of her legal career: defending a man accused of raping a 12-year-old girl.
In 1975, the same year she married Bill, Hillary Clinton agreed to serve as the court-appointed attorney for Thomas Alfred Taylor, a 41-year-old accused of raping the child after luring her into a car.
The recordings, which date from 1983-1987 and have never before been reported, include Clinton's suggestion that she knew Taylor was guilty at the time. She says she used a legal technicality to plead her client, who faced 30 years to life in prison, down to a lesser charge. [Washington Free Beacon, 6/15/14]
Clinton Previously Described The Story In Her Memoir And In An Extensive 2008 Newsday Article. In 2008, while Clinton was running for the Democratic nomination for president, Newsday produced a 3,000-word report on Clinton's 1975 work for an alleged rapist, noting that Clinton had detailed the story in her 2003 memoir:
In 1975, a 27-year-old Hillary Rodham, acting as a court-appointed attorney, attacked the credibility of a 12-year-old girl in mounting an aggressive defense for an indigent client accused of rape in Arkansas - using her child development background to help the defendant.
The case offers a glimpse into the way Clinton deals with crisis. Her approach, then and now, was to immerse herself in even unpleasant tasks with a will to win, an attitude captured in one of her favorite aphorisms: "Bloom where you're planted."
In May 1975, Washington County prosecutor Mahlon Gibson called Rodham, who had taken over the law clinic months earlier, to tell her she'd been appointed to represent a hard-drinking factory worker named Thomas Alfred Taylor, who had requested a female attorney.
In her 2003 autobiography "Living History," Clinton writes that she initially balked at the assignment, but eventually secured a lenient plea deal for Taylor after a New York-based forensics expert she hired "cast doubt on the evidentiary value of semen and blood samples collected by the sheriff's office."
However, that account leaves out a significant aspect of her defense strategy - attempting to impugn the credibility of the victim, according to a Newsday examination of court and investigative files and interviews with witnesses, law enforcement officials and the victim. [Newsday, 2/24/08, via Nexis]
Legal And Child Welfare Experts Told Newsday Clinton Acted Appropriately. From the Newsday article:
Rodham, legal and child welfare experts say, did nothing unethical by attacking the child's credibility - although they consider her defense of Taylor to be aggressive.
"She was vigorously advocating for her client. What she did was appropriate," said Andrew Schepard, director of Hofstra Law School's Center for Children, Families and the Law. "He was lucky to have her as a lawyer ... In terms of what's good for the little girl? It would have been hell on the victim. But that wasn't Hillary's problem." [Newsday, 2/24/08, via Nexis]
Clinton Didn't Volunteer, Was Reportedly Appointed By A Judge
Clinton: The Prosecutor Told Me "I Couldn't Very Well Refuse The Judge's Request." In her memoir, Living History, Clinton writes: "One, day, the Washington County prosecuting attorney, Mahlon Gibson, called to tell me an indigent prisoner accused of raping a twelve-year-old girl wanted a woman lawyer. Gibson had recommended that the criminal court judge, Maupin Cummings, appoint me. I told Mahlon I really didn't feel comfortable taking on such a client, but Mahlon gently reminded me that I couldn't very well refuse the judge's request. [Hillary Clinton, Living History, 2003, (pp. 72-73)]
Newsday: Clinton Was Assigned To The Case, Didn't Want To Take It. From the 2008 Newsday article:
On May 21, 1975, Tom Taylor rose in court to demand that Washington County Judge Maupin Cummings allow him to fire his male court-appointed lawyer in favor of a female attorney. Taylor, who earned a meager wage at a paper bag factory and lived with relatives, had already spent 10 days in the county jail and was grasping for a way to avoid a 30 years-to-life term in the state penitentiary for rape.
Taylor, 41, figured a jury would be less hostile to a rape defendant represented by a woman, according to one of his friends. Cummings agreed to the request, scanned the list of available female attorneys (there were only a half dozen in the county at the time) and assigned Rodham, who had virtually no experience in criminal litigation.
"Hillary told me she didn't want to take that case, she made that very clear," recalls prosecutor Gibson, who phoned her with the judge's order. [Newsday, 2/24/08, via Nexis]
Clinton Was Required By Law To Provide The Strongest Defense She Could
CNN's Toobin: Clinton Was "Obligated To Work Diligently To Help Her Client." CNN.com reported:
Many legal experts agree that Clinton was required, by law, to provide the best defense she was able.
"Once a defense attorney accepts a criminal case, she is obligated to work diligently to help her client and that can often be upsetting to prosecutors and even to victims," said Jeffrey Toobin, CNN's senior legal analyst and a former federal prosecutor. "That is how the system is designed to work."
Toobin added: "There is no such thing as a criminal defense attorney who only represents innocent clients. Part of the job of the defense attorney is to assist a client whether they are guilty or not." [CNN.com, 6/20/14]
Washington Post's Adler: "This Is Not Something For Which She Should Be Attacked." Libertarian lawyer Jonathan Adler wrote of the case for The Washington Post:
It seems that election season is open season on defense attorneys.
Much, if not all, of the criticism of Clinton resulting from this story is misplaced. She was asked (by the prosecutor, no less) to represent a criminal defendant. Her client was accused of raping a 12-year-old girl. From what I can tell, Clinton believed her client was guilty but was nonetheless able to obtain a favorable plea deal because the government had mishandled incriminating evidence. A forensic lab performed tests on blood stains found on the defendant's underwear, but discarded the relevant piece of clothing (literally leaving a pair of underwear with a hole cut out). Lacking the necessary physical evidence to convict, the prosecution offered a plea deal. Some of the relevant court documents are available here. A previously unreleased interview with Clinton about the case is available here.
What should we make of this story? Perhaps nothing more than that Hillary Clinton represented someone in need and fulfilled her duty as a member of the bar to provide a zealous defense of her client. This is not something for which she should be attacked. We are all the worse off if the message sent to young lawyers is that representing guilty or unpopular clients is likely to be a political liability down the road. Ably and effectively representing a criminal defendant - even one you believe to be guilty - is not "scummy" or inappropriate. Forcing the state to prove its case before it deprives an individual of their life, liberty or property is a noble endeavor. So while I think the story is newsworthy, I think most of the attacks on Clinton for this episode are misplaced, and a bit opportunistic. [WashingtonPost.com, 6/20/14, emphasis added]
Numerous GOP Lawyers And The ABA Have Said Attacks On Lawyers For Defending Alleged Criminals Undermine The Justice System
In recent years, Republicans have repeatedly sought to attack Obama administration appointees and Democratic candidates by highlighting their defense of alleged criminals. But Republican lawyers have frequently pointed out that such attacks are flawed and undermine the American justice system.
Kenneth Starr, Top Bush Administration Lawyers Denounced "Shameful" Republican Attacks On Lawyers. In 2010, a conservative group run by Liz Cheney produced an ad that questioned the loyalties of Department of Justice attorneys appointed by President Obama who had previously representative detainees at Guantanamo Bay. Numerous conservative lawyers subsequently signed a letter stating that the attacks on the Justice Department lawyers were "shameful" and "undermine[d] the Justice system" by undermining the American tradition of providing "zealous representation of unpopular clients." Politico reported that the signers included former independent counsel Kenneth Starr as well as:
[F]ormer Deputy Attorney General Larry Thompson, John Ashcroft's No. 2, and Peter Keisler, who served as acting attorney general during President Bush's second term. They also include several lawyers who dealt directly with detainee policy: Matthew Waxman and Charles "Cully" Stimson, who each served as deputy assistant secretary of defense for detainee affairs; Daniel Dell'Orto, who was acting general counsel for the Department of Defense; and Bradford Berenson, a prominent Washington lawyer who worked on the issues as an associate White House counsel during President Bush's first term. [Politico, 3/8/10]
Sen. Lindsey Graham: "This System Of Justice That We're So Proud Of In America Requires The Unpopular To Have An Advocate." Sen. Lindsey Graham (R-SC) responded to the ad by stating, "I'm with Kenneth Starr on this one," adding:
I've been a military lawyer for almost 30 years, I represented people as a defense attorney in the military that were charged with some pretty horrific acts, and I gave them my all. This system of justice that we're so proud of in America requires the unpopular to have an advocate and every time a defense lawyer fights to make the government do their job, that defense lawyer has made us all safer. [Foreign Policy, 3/9/10]
Former Attorney General Michael Mukasey: "You Shouldn't Judge A Lawyer By His Clients." Former Attorney General Michael Mukasey also called the attacks "wrong." In a Wall Street Journal op-ed headlined, "Why You Shouldn't Judge A Lawyer by His Clients," Michael Mukasey, who served as attorney general under George W. Bush, wrote that it's "wrong to criticize attorneys who represent alleged terrorists" and noted that the D.C. bar's rules of conduct say representation of a client should "not be portrayed as endorsement of the client's views or behavior":
It is plainly prudent for us to assure that no government lawyers are bringing to their public jobs any agenda driven by views other than those that would permit full-hearted enforcement of laws that fall within their responsibility-whether those laws involve prosecution of drug dealers, imposition of the death penalty, or detention of those who seek to wage holy war against the United States. It's also prudent that Congress exercise its long-established oversight responsibility to provide that assurance.
But that prudence is not properly exercised by arguing that lawyers who defended drug cases, or worked on defense teams in death-penalty cases, or helped bring legal proceedings in behalf of those detained as terrorists, are automatically to be identified with their former clients and regarded as a fifth column within the Justice Department. The rules of conduct of the District of Columbia bar, for example, direct that representation of a client not be portrayed as endorsement of the client's views or behavior.
If the Department of Justice comes to attract only lawyers who have spent their professional energy principally in avoiding matters of controversy, the quality of lawyers willing to serve at the department will decline, and the department will suffer, as will we all. [Wall Street Journal, 3/10/10]
Former Bush Administration Official Peter D. Keisler: Acting Within "Honorable Tradition Of Lawyers Representing Controversial Clients" Does Not Make Someone "Unfit" For Service. The New York Times reported that former Bush administration official Peter D. Keisler highlighted the "longstanding and very honorable tradition of lawyers representing unpopular or controversial clients" in response to attacks on Obama administration nominees:
Peter D. Keisler, who was assistant attorney general for the civil division in the Bush administration, said in an interview that it was "wrong" to attack lawyers who volunteered to help such lawsuits before joining the Justice Department.
"There is a longstanding and very honorable tradition of lawyers representing unpopular or controversial clients," Mr. Keisler said. "The fact that someone has acted within that tradition, as many lawyers, civilian and military, have done with respect to people who are accused of terrorism - that should never be a basis for suggesting that they are unfit in any way to serve in the Department of Justice." [The New York Times, 3/4/10]
Former Bush Lawyer John Bellinger Called Attacks On Lawyers For Defending A Client "Inappropriate" "Cheap Shots." In a CNN appearance, former Bush administration lawyer John Bellinger called attacks on the DOJ lawyers who represent controversial clients "cheap shots":
I think those sorts of cheap shots, suggesting that a lawyer who is simply defending a client somehow shares those views, are -- really are inappropriate.
John Adams represented Tories who were accused of treason back in the revolution. This is the sort of work that we ought be applauding and not attacking. [CNN, The Situation Room, 3/4/10]
American Bar Association: Legal Representation Of Murderer "Consistent With The Finest Tradition" Of American Lawyering. Critics smeared Debo Adegbile, President Obama's nominee to head the Justice Department's Civil Rights Division, citing his defense of Mumia Abu-Jamal who had been sentenced to death for the murder of a police officer. The president of the American Bar Association (ABA), James R. Silkenat, wrote a letter to the Democratic and Republican leaders of the Senate Judiciary Committee unequivocally stating that Adegbile "should be commended, not condemned" for his work. From the January 13, 2014, letter:
As the Senate Judiciary Committee prepares to deliberate over the nomination of Debo Adegbile to be Assistant Attorney General for the Civil Rights Division, I write to address the criticism this nominee has received regarding the legal representation he provided to a death-sentenced prisoner.
A fundamental tenet of our justice system and our Constitution is that anyone who faces loss of liberty has a right to legal counsel. Lawyers have an ethical obligation to uphold that principle and provide zealous representation to people who otherwise would stand alone against the power and resources of the government - even to those accused or convicted of terrible crimes. The American people understand this obligation, and the corollary principle stated in rule 1.2(b) of the ABA Model Rules of Professional Conduct that "[a] lawyer's representation of a client does not constitute an endorsement of the client's political, economic, social or moral views or activities."
I was alarmed to learn that there is some opposition to Mr. Adegbile's nomination based solely on his efforts to protect the fundamental rights of an unpopular client while working at the Legal Defense Fund. His work, like the work of ABA members who provide thousands of hours of pro bono legal services every year, is consistent with the finest tradition of this country's legal profession and should be commended, not condemned. [American Bar Association, 1/13/14]
Christie Campaign Lawyer Robert Luskin: "A Lawyer Is Only, Ever An Advocate; He's Not A Co Conspirator Or An Enabler." In April, the Republican Governor's Association produced an ad criticizing Vincent Sheheen, Democratic candidate for governor in South Carolina, for representing defendants. Robert Luskin, a lawyer who represented Gov. Chris Christie's (R-NJ) reelection campaign, criticized the ad, calling it a "disgrace." From The Huffington Post:
A lawyer representing Gov. Chris Christie's reelection campaign has weighed in on the RGA ad in an email to HuffPost later on Wednesday. Robert Luskin is a partner at Patton Boggs who, along with his colleague Mark Sheridan, is representing the campaign and the New Jersey Republican State Committee in connection with the Bridgegate scandal.
Luskin said, "I did watch the ad and, wow, it's a disgrace. The people who talk incessantly about American exceptionalism ought to demonstrate some understanding -- and some respect -- for what makes our system truly admirable: that includes the willingness of lawyers to stand up for their clients no matter how ugly the allegation. But a lawyer is only, ever an advocate; he's not a co conspirator or an enabler."
Luskin added, "I suppose the take away here is that in 2014, as in every election that preceded it, people will say whatever they think they need to in order to win. That's no surprise. But one would certainly hope that an organization like the RGA would also show some respect for the institutions that make our country special." [The Huffington Post, 4/23/14]
Wash. Post's Adler: "Representing Unpopular Causes Or Clients Is Never Easy, But It Is Necessary." Libertarian lawyer Jonathan Adler wrote of the anti-Sheheen ad for The Washington Post:
Representing unpopular causes or clients is never easy, but it is necessary. Organized efforts to blunt the careers of those who take on such efforts are shameful. It would be one thing if Sheheen were accused of unethical conduct in his representation of his clients. It is quite another to attack him for defending those who, however horrific their crimes, needed a legal defense. A lawyer is responsible for his or her own conduct, and is not responsible for the sins of the client.
The RGA is not the first to attack lawyers for having agreed to represent unpopular clients or causes, but that hardly makes the ad any more defensible. [WashingtonPost.com, 4/24/14]
American Bar Association President: Right To Legal Counsel A "Fundamental Tenet Of America's Justice System." In a letter to Christie, ABA President Silkenat wrote that the message the anti-Sheheen ad sends "is wrong in the context of the American system of justice, and it must be rejected." He explained:
A fundamental tenet of America's justice system and Constitution is that anyone who faces loss of liberty has a right to legal counsel. Lawyers have an ethical obligation to uphold that principle and provide zealous representation to people who otherwise would stand alone against the power and resources of the government -- even to those accused or convicted of terrible crimes.
The rule of law that governs our society delivers justice specifically because everyone has a right to competent representation. This right is especially important for those who arouse our fear and anger, to ensure that the process by which they are judged is fair and just. This process is what distinguishes us from our darker history, when mobs decided guilt or innocence and punished those they deemed guilty.
The Republican Governors 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. Voters who subsequently pass judgment on the candidate for the singular reason that he was a competent lawyer are disqualifying him from public service. On the contrary, lawyers who represent unpopular or guilty clients demonstrate the kind of courage and confidence in our legal system that characterizes the finest public servants. [Silkenat letter, 4/25/14]
In Tapes, Clinton Is Laughing About Legal Process, Not About Getting A Criminal Off
The Daily Beast's Marcotte: "Clinton Knows Rape Is No Laughing Matter." Conservative critics have alleged that instances of Clinton laughing while discussing the case are evidence that she does not take rape seriously. In response, The Daily Beast's Amanda Marcotte noted that Clinton was laughing at the absurdity of the legal process, not "at the rape victim." From the column:
In particular, two laughs are being singled out as some kind of evidence of secret non-feminism on Clinton's part. At one point, when discussing how the prosecution fumbled the case, Clinton laughs at their screw-up. At another point, Clinton laughs at her client, saying that he passed the polygraph test, "which forever destroyed my faith in polygraphs."
Notably, Clinton does not actually laugh at the rape victim, so any anger over the laughter is not in defense of the victim. The notion that anyone who has had to do a job dealing with rapists is not allowed to ever have a laugh about the absurdities of the work itself--or the lies that rapists come up with to deflect blame--is a notion clearly invented just to hold Clinton to it. And is a notion that will be abandoned the second it's not politically expedient in the future. [The Daily Beast, 6/17/14]
CNN Legal Analyst: "She's Not Laughing About The Fact She Got Somebody Off. She's Laughing About The Process." CNN legal analyst Paul Callan explained that while some are getting the misimpression that Clinton was laughing about getting the rapist of a 12-year-old girl a light sentence, a close review of the tapes indicates that is not what happened. From the June 20 edition of CNN's The Lead:
PAUL CALLAN, CNN LEGAL ANALYST: Of course, you know, Abraham Lincoln defended criminals, John Adams defended criminals. So it's always hard when a lawyer runs for office because you get cherry picked on certain cases. I think the real criticism here, I just came from a deposition with a bunch of hardened New York lawyers around the table. I said I'm going to be going to CNN.
I played them the tape and they were all shocked when they heard she was laughing about a case in which she got a guy who raped a 12-year- old girl off or got a lighter sentence for it. Then we played the tape and everybody was, what's going on here? She doesn't really do anything that's strange.
If you listen to the whole tape, she's not laughing about the fact she got somebody off. She's laughing about the process. She talking about for instance she flew up to Brooklyn to get the world's leading expert on blood samples and the prosecutor was very upset about that. So she laughs about the prosecutor being upset.
She's never laughing about a victim not getting justice. It's kind of a -- it's a lawyer telling a lawyer tale. [CNN, The Lead with Jake Tapper, 6/20/14, via Nexis]