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Spiva challenges McDuffie’s eligibility in D.C. attorney general race

D.C. Council member Kenyan R. McDuffie (D-Ward 5) in 2019. McDuffie is among four candidates for D.C. attorney general. (Jahi Chikwendiu/The Washington Post)

D.C. attorney general candidate Bruce V. Spiva formally challenged Kenyan R. McDuffie’s candidacy for the position Tuesday, alleging that McDuffie, the D.C. Council member who represents Ward 5, does not meet the minimum qualifications to run.

McDuffie and Spiva, a managing partner at the international law firm Perkins Coie, are among four Democratic contenders vying to succeed Attorney General Karl A. Racine (D), who is not seeking a third term. In a statement Tuesday, Spiva focused on a statute in the D.C. code that says the attorney general must have been “actively engaged” in D.C. as a practicing attorney, judge or law school professor, or as “an attorney employed in the District of Columbia by the United States or the District of Columbia” for at least five of the 10 years before taking office.

In his filing, Spiva charged that McDuffie, who has served on the council since 2012, had spent “at most only two years practicing law as a member of the D.C. bar, none of which were in the last decade” and, thus, does not meet the criteria for the office.

The D.C. Board of Elections confirmed that Spiva’s challenge was accepted Tuesday afternoon.

Chuck Thies, a senior adviser to McDuffie’s campaign, said Tuesday that the challenge “doesn’t come as a surprise.” In a later campaign statement, he asserted that McDuffie consulted with legal experts who confirmed he met the required criteria. The statement called Spiva’s challenge “an affront to all District residents.”

“Having spent nearly a decade in public service to the District as a legislator, following a distinguished career as a litigator, there is no question that McDuffie is qualified under the express language of the law,” the statement said. “Voters should determine the outcome of elections. It is apparent that one of our opponents lacks confidence that he can win fair and square.”

The statute in question, approved by the D.C. Council years before voters elected Racine as the city’s first independent attorney general in 2014, includes other minimum requirements for the job. Among them: The attorney general must be a D.C. resident, a registered voter in the District and in good standing with the D.C. bar for at least five years before assuming the position.

But legal ethics experts interviewed by The Washington Post said they were unsure that the challenge would hold up, in part because of the code’s vague wording.

Kathleen Clark, an ethics attorney in D.C. who is also vice chair of the D.C. Bar’s Global Legal Practice Committee, said she thinks McDuffie qualifies for the job because he is an attorney who is employed by the District government — as a council member.

“The council decided to allow more flexibility, a wider range of experience to count as meeting the experience requirement,” said Clark, who is a longtime legal ethics professor at Washington University in St. Louis. “It’s true that in the years he served as a council member he’s not acting as a lawyer on behalf of a client. But he is a lawyer, trained as a lawyer and has some experience as a lawyer.”

Michael Frisch, who was appointed the ethics counsel at Georgetown Law in 2001, said he agreed with Clark’s interpretation of the statute, although he added that “lawyers could get paid for arguing either side.” He also pointed to how the D.C. court system defines the practice of law in its own rules, which he said the city “intentionally defines very broadly.”

“One could always go to court to test his qualifications,” Frisch said. “But the odds are against their prevailing.”

The 10-day window for residents and candidates to challenge nominating petitions filed with the Board of Elections opened Saturday. The board will make a final determination on challenges by April 25, according to its website, though challengers can appeal any decisions in court.

McDuffie, who is running as “the people’s lawyer,” graduated from the University of Maryland School of Law and clerked for a judge in Prince George’s County before he became an assistant state’s attorney there, prosecuting misdemeanor and felony cases.

D.C. Attorney General Karl Racine will not seek elective office in 2022

In debates and campaign materials, he often touts legislation that he wrote on the council with a focus on equity. He also cites his experience as a trial attorney in the civil rights division of the U.S. Justice Department, where he conducted investigations regarding federal civil rights statutes in prisons and health-care facilities. McDuffie later served as a policy adviser to the city’s deputy mayor for public safety and justice, according to his website.

This isn’t the first time the qualifications of a candidate for D.C. attorney general have been scrutinized.

Lateefah Williams, who joined Racine in the first class of candidates running to become the District’s first elected attorney general in 2014, feared at the time that she may not have qualified for the position under the city’s statute. Williams, who had held policy and legislative jobs before running, was concerned that she may not have been “actively engaged” as an attorney and told the Washington Blade that she was seeking guidance with the D.C. Board of Elections because of the vague language in the statute.

Despite her reservations, Williams appeared on the primary ballot.