Rule of Law

Legal Thugs: Justice Department Leaks to Podesta Violate Ethics Rules

Wikileaks has shown us that the American system of Justice has become infected with a malignancy, where laws don’t apply to the powerful.  Lawyers who once formed the honorable backstop to the Rule of Law, have become a New American breed of gangster.

The most egregious part of Assistant Attorney General Peter Kadzik’s leaks to John Podesta and the Hillary Clinton campaign is that they involved confidential information.  Much as been made of the tip off to Podesta that Congress was going to conduct an oversight hearing.  That’s a nothingburger. Hearings are public events.

But Kadzik also tipped off Podesta about a pleading that, as far as he knew, the Department of Justice was going to file in a case.  The document to be filed in court was an affidavit of John F. Hackett, the acting director of the Office of Information Programs at the State Department.  You can read the full affidavit here.

That the document was going to be filed in court was confidential information.

The document is a road map to all the inner workings and machinery in the State Department’s efforts to retrieve and release Hillary’s emails.  The document was filed by the Justice Department in defending against a freedom of information lawsuit.  It provides numbers, schedules, locations, availability and much more about Hillary’s emails.  The filing was the statement to the federal court about what was going to happen next with her emails.  It was therefore critical for the campaign to read it and integrate it into their responses.  As I said on the Kelly File this week, it was a “script.”   Kadzik tipped off Podesta and the Hillary campaign that a script was about to be made public, and the needed to act fast.

Knowing the script was coming gave the Hillary campaign a political advantage over Hillary’s foes.  While the Clinton campaign was digesting the court filing quickly after receiving the tip, Republicans probably didn’t even know it was filed for a few hours.  In the modern constant news-cycle environment, speed kills.  As I said on Kelly File, “12 hours is an eternity.”  The tip off by Kadzik of this confidential information was a political asset to Hillary.

The tip was also unethical.  Lawyers are prohibited from revealing confidential information about cases.  Information that the DOJ would soon be filing a pleading in a case is confidential information.  Lawyers may not reveal it.  Justice Department ethics guidelines prohibit DOJ employees from giving preferential treatment to anyone, much less giving preferential treatment by revealing confidential information.  The Justice Department Ethics Handbook states:

Employees shall act impartially and not give preferential treatment to any private organization or individual. . . .Employees shall endeavor to avoid any actions creating the appearance that they are violating the law or the ethical standards set forth in this part. Whether particular circumstances create an appearance that the law or these standards have been violated shall be determined from the perspective of a reasonable person with knowledge of the relevant facts

When you stop laughing, realize it’s far worse.  Disclosure of confidential information, broadly defined, is banned:

You may not engage in a financial transaction using nonpublic information or allow the use of such information to further your private interests or those of another.  Nonpublic information is information you gain on the job, which has not been made available to the general public, and is not authorized to be made available on request such as through the FOIA.

Remember, Kadzik’s email specifically said “Another filing in the FOIA case went in last night or will go in this am.” Kadzik specifically says the filing may be in the future, but he still tips Podesta off. That’s confidential information going to a third party  that’s preferential treatment to a private organizations, one with which Kadzik has political allegiance.

Kadzik is a member of the District of Columbia Bar.  Rule 1.6 of the Rules of Professional Conduct of that Bar says:

A lawyer shall not knowingly: (1) reveal a confidence or secret of the lawyer’s client; (2) use a confidence or secret of the lawyer’s client to the disadvantage of the client; (3) use a confidence or secret of the lawyer’s client for the advantage of the lawyer or of a third person.

I also discussed the ramifications of this with Brian Kilmeade on Fox and Friends.

As I noted, if I did this when I was at the Justice Department, “tipping off the McCain campaign about a court document about to be filed, I would have lost my job.”  But we’ve come to expect this.  Who you are, and what your politics are matters more than whether you follow the rules.

Rules! You laugh, and who couldn’t after seven years of these gangsters?

Understand that this New American breed of gangster, the lawyer from respected firm who serves his time in government and does what he to deconstruct the architecture of a nation, doesn’t think they’ve done the slightest thing wrong.  None of them do.  The
“Fundamental Transformation” is too important.

When we cross the threshold where conscience is redefined by large numbers of powerful people, we enter the more dangerous places.  Even now, some well pedigreed lawyer is scanning ethics opinions to convert my characterization of the leak involving confidential information into not involving confidential information.  That the ethics opinion might involve another scoundrel that escaped by the skin of his teeth won’t matter.  Come on in, there’s plenty here for everyone.

One of the modern characteristics of lawyering among this New American breed of gangster is the ability to defend anything, to redefine the rules themselves outside the bounds of common sense.  As Solzhenitsyn noted:

And what would happen if the truth that the “sum of the angles of a triangle is equal to 180 degrees” were to threaten their private residences, their ranks, their assignments abroad?  In that case they would cut off your head for drawing a triangle! A decree would be issued that angles henceforth were to be measure in radians!

The world where rules apply to some, but not to the favored class is a dark world, as Solzhenitsyn knew firsthand.  Immunity follows the favored ideology, and guilt always attaches to the disfavored, no matter how innocent the disfavored might be.

“A person who knows our principles cannot fear that the existence of previous criminal convictions in his record will jeopardize his being included in the ranks of revolutionaries,” that great author wrote.  He was quoting someone who believed in a system where rules and laws were applied depending on your politics and ideology.  We’ve seen it over and over again for seven years, and now Hillary Clinton is the latest beneficiary.  You can laugh at the parallels all you want, but the last week of the 2016 election has been defined by people who share my concern.