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Opinion The curious case of the clerk and the racist texts

The U.S. Supreme Court on Jan. 18. (Drew Angerer/Getty Images)
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“Why is a prominent federal judge hiring a law clerk who said she hates Black people?” asked the headline on a column I wrote in October. Now, the story has resurfaced, with a surprising, belated — and, in my view, ultimately unconvincing — new defense: The bigoted texts were faked.

The clerk in question is Crystal Clanton, a student at the Antonin Scalia Law School at George Mason University, selected for a coveted clerkship with William H. Pryor Jr., the chief judge of the U.S. Court of Appeals for the 11th Circuit. Clanton’s selection was unsettling because she had been featured in a 2017 New Yorker story about the conservative student group Turning Point USA.

The story, by reporter Jane Mayer, included quotes from texts apparently sent by Clanton to a fellow Turning Point employee, John Ryan O’Rourke.

I have seen a screenshot of the texts, I include them here to help readers judge for themselves whether the content seems genuine.

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Clanton: “I HATE BLACK PEOPLE” “Like f--- them all,” with the expletive spelled out.

O’Rourke: “Well, that’s certainly direct”

Clanton: “Are u free”

O’Rourke: “At Starbucks right now” “What happened”

Clanton: “Can I come to Starbucks in 5?”

O’Rourke: “Yes”

Clanton: “Are u with ppl”

When Mayer asked her about them, Clanton told her, “I have no recollection of these messages and they do not reflect what I believe or who I am and the same was true when I was a teenager.” (Clanton was 20 when the texts were sent in November 2015.)

Turning Point president Charlie Kirk, asked about the toxic texts, told Mayer that “Turning Point assessed the situation and took decisive action within 72 hours of being made aware of the issue.”

Kirk spokesman Andrew Kolvet reaffirmed the New Yorker’s account when I wrote about Clanton’s departure last year, and repeated in a conversation Saturday that she was “terminated from Turning Point after the discovery of problematic texts.”

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Before writing the October column, I made certain, by emailing Clanton and through representatives of Scalia Law, that Clanton knew I was writing; I received no response; I also emailed Pryor, who did not reply.

In short: At no point before or after publication of the New Yorker story was there any public dispute that Clanton had sent the texts at issue. Neither Clanton nor her lawyer, to whom Mayer spoke at the time, suggested that there was any fabrication. Indeed, O’Rourke confirmed their authenticity to Mayer.

Meanwhile, other claims of disturbing behavior surfaced. The website Mediaite reported in 2018 that Clanton had been hired by conservative activist Ginni Thomas, the wife of Supreme Court Justice Clarence Thomas, whom she had met at Turning Point. The Mediaite story described a Snapchat message featuring “a photo of a man who appears to be Arab and a caption written by Clanton that reads, ‘Just thinking about ways to do another 9/11.’”

After news reports about Pryor’s hiring of Clanton, seven House Democrats filed a complaint against Pryor and a district court judge who had also hired Clanton. The complaint was transferred to the 2nd Circuit, which disclosed last week that Chief Judge Debra Ann Livingston had dismissed the complaint in December.

Notably, the 2nd Circuit order affirming the dismissal makes clear that it did not decide “whether the information the Judges elicited and received regarding their hiring decisions was accurate, but only that they committed no misconduct in performing due diligence and then determining to hire the candidate based on the information before them.”

Here is where things get interesting. Reporting on the dismissal, Atlanta Journal-Constitution reporter Bill Rankin unearthed letters that aren’t in the public file but were submitted to the court by Pryor and Justice Thomas.

The Thomas letter, which offers a fascinating look at the close relationship Clanton had with the couple, describes how “Crystal came to live with us and work with my wife about three years ago after her controversial and public departure from Turning Point USA … My wife informed me of the horrible way in which she had been treated at Turning Point and asked that she be allowed to live with us. I agreed, and she lived with us for almost a year.”

Thomas relates how he encouraged Clanton, “understandably distraught and depressed,” to go to law school; recommended her when she applied to law school; and then suggested her to Pryor as a clerk, informing him of “the grossly out of character and unfounded allegations against her.” Thomas concludes, “It is certainly my intention to consider her for a clerkship should she perform as I expect and excel in her clerkships.”

The Pryor letter goes into more detail. “Before I hired her, I determined, after careful investigation, that Crystal had been a victim of a false accusation of racist behavior by a tabloid reporter whose central accusation relied entirely on an anonymous source in her scandalous report.” Of Mayer, Pryor states, “I was familiar with the reporter who published that initial report, and I distrusted her work.”

With all due respect, this is unfair. The New Yorker is no tabloid; its fact-checking is legendary. I know firsthand how careful and tenacious a reporter Mayer is. Her sourcing was neither anonymous nor based on a single individual: O’Rourke acknowledged receiving the messages and declined to comment on them, and Kirk, the Turning Point president, confirmed to Mayer that they were the reason for Clanton’s termination.

The most intriguing twist in Pryor’s account involves Kirk. Pryor’s letter says that Thomas told him that Turning Point “determined that a rogue employee had compromised the accounts of several co-workers, including Crystal, to make it appear that they had engaged in misconduct when they had not. Justice Thomas explained that Turning Point fired that rogue employee.”

Pryor says he investigated further — after the controversy over Clanton’s hiring arose. An attorney who had advised Clanton shared that “one of the reasons Crystal has not publicly denied the allegation against her was that she is bound by a nondisclosure agreement with her former employer,” Pryor wrote.

He said he asked for and received a letter from Kirk asserting that “Crystal was the victim of a smear campaign launched by disgruntled ex-employees and carried out by negligent journalists.” The Kirk letter says he fired a Turning Point employee “after learning that he created fake text messages to be used against other employees” — although it does not specifically say, at least in the part quoted by Pryor, that the Clanton messages were among those fakes.

Pryor complained about “false insinuations” against Clanton. “For example, the New Yorker used Kirk’s comment that ‘Turning Point assessed the situation and took decisive action within 72 hours of being made aware of the issue’ to corroborate the charge that Crystal sent the inflammatory message,” he wrote. “But the ‘decisive action’ that Kirk took was to fire a rogue employee for fabricating the racist messages.” That is not accurate, based on Mayer’s reporting and my own.

What to make of all this? Was Clanton somehow the victim of phony texts and felt unable to refute the allegations because of a nondisclosure agreement? That seems unlikely, especially given that she felt free enough to say to Mayer that “I have no recollection of these messages.”

This is not the defiant response one would expect if the texts had been made up and another employee fired for concocting them. Indeed, little about this 11th-hour assertion makes sense. I have repeatedly emailed and texted O’Rourke and other former Turning Point employees in an effort to figure out what happened. “Not fake,” responded one, who otherwise declined to elaborate.

“I don’t believe for a second somebody hacked that — that’s literally how she talked on other subjects. She would say ‘I hate this, I hate all of this.’” said Gabrielle Fequiere, who described herself as Turning Point’s only Black employee and said she was fired by Clanton on Martin Luther King Jr. Day in 2016. Fequiere recalls having several former colleagues share the texts with her shortly afterward.

Another possible explanation? Maybe Kirk concluded that it was not smart to get so crosswise with a Supreme Court justice and his influential spouse, and was trying to find a way to make amends, with Clanton and the Thomases. I have asked Kolvet repeatedly for an explanation of Kirk’s diverging accounts; he has declined to make Kirk available or provide any other response.

With the 2nd Circuit’s action, we now know definitively that Pryor was aware of Clanton’s background before he hired her, and that he took steps to reassure himself that the allegations against her were untrue — even if those steps, before the uncomfortable publicity, mostly consisted of checking in with those already on team Clanton.

We now know that Clanton appears well on her way to the ultimate credential for a young lawyer, a Supreme Court clerkship.

What’s less clear is that Clanton is the innocent victim of a terrible injustice, as Pryor and Thomas so confidently assert.