Is Hillary Clinton’s conduct as a young attorney fair game?

June 20

Washington Free Beacon story on Hillary Clinton’s representation of an accused rapist (based on tapes obtained from the University of Arkansas library) has revived debate over when it is appropriate to attack political figures for their legal work. I blogged on this question here and here after the RGA attacked a Democratic gubernatorial candidate for his defense work.  Here we go again. 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. [Note that some attacking Clinton are also calling for more more due process protections for college students accused of rape.]

I say “most” because there is one small issue in the case that might — and I emphasize might — justify criticism of Clinton’s conduct.  Josh Rogin of the Daily Beast obtained an interview with the rape victim.  The interview is wrenching stuff.  The victim is understandably upset that her assailant got off easy.  This is a sad result, but it’s not the defense attorney’s fault that the state could not make a stronger case.  One can feel for the victim without being angry at her attacker’s attorney.

Rogin discusses an affidavit Clinton submitted seeking a psychiatric evaluation of the victim (available here at page 34).  In this affidavit, Clinton wrote “I have been informed that the complainant is emotionally unstable with a tendency to seek out older men and engage in fantasizing”and that “she has in the past made false accusations about persons, claiming they had attacked her body. Also that she exhibits an unusual stubbornness and temper when she does not get her way.”  The victim, who is now 52, says any such claims were untrue, that she never made accusations against anyone else, and that she believes Clinton was lying.

If it were true that Clinton made false claims in an affidavit, then it would be perfectly legitimate to criticize her for having done so.  While it is wrong to criticize lawyers for representing unpopular or unseemly clients — let alone for doing it effectively — it is perfectly appropriate to criticize specific conduct that crosses ethical lines.  Zealous representation must still be ethical representation.

Here we have little evidence that Clinton did anything wrong.  And while I see this is as a perfectly legitimate subject of journalistic inquiry, I doubt the victim’s claim could be substantiated at this late date. After all, how would one show that Clinton had been untruthful when she claimed to “have been informed” of these claims about the victim?  Clinton wasn’t making claims about the victim, but about what she had heard that could justify a psychiatric examination.

The bottom-line here is that Hillary Clinton’s work on this case as a young attorney 40 years ago is interesting and newsworthy, but that’s about it.  Unless and until more damaging evidence emerges, there’s no basis for the new attacks on her.  Anti-Hillary folks should look elsewhere.

Contra The Washington Free Beacon, there is nothing “scummy” or “semi-sociopathic” about what she did (and, no, I don’t find the uncomfortable laughter on the audio tape interview with Clinton a decade-or-so after the fact to be troubling either — listen to it for yourself.)  She engaged in able and (as far as we know) ethical defense work — and defense work is a noble calling.  The WFB may be correct that it’s not a winning political argument to defend the work that defense attorneys do.  If so, that’s a sad commentary on our political system, and not something thoughtful commentators should celebrate or exploit.

UPDATE: In this post I did not address whether it was proper for Clinton to comment on her client’s guilt or to discuss the results of his polygraph.  Those are separate questions, and not what most of the criticism of Clinton has focused upon.

Jonathan H. Adler teaches courses in constitutional, administrative, and environmental law at the Case Western University School of Law, where he is the inaugural Johan Verheij Memorial Professor of Law and Director of the Center for Business Law and Regulation.
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