After essentially universal condemnation for his politically-motivated ethical violation, Harvard Law School constitutional law professor, Laurence Tribe, has decided to violate the First Rule of Holes in his effort to pretend he didn’t. His initial effort, on the twitters, was this “childish” attempt to double down:
I’ve concluded my Trump notes probl’y aren’t priv’gd. I cd release em if I decided yes, but I’ve decided no.
And in response to the tsunami of twits in response to Tribe’s very public effort to smear Trump, he offered this bit of absurdity:
You must think just seeking legal advice makes someone look guilty of wrongdoing. What about the rule of law? Crazy!
What about the rule of law, Larry? Glad you brought that up, as did Jacob Gershman at the WSJ Lawblog, who sent Tribe an email asking for an explanation for his highly public revelations. Tribe took his time responding, such that he offered nothing in response in a sufficiently timely manner to get it into Jacob’s initial post, but finally emailed his “defense.”
Mind you, this is not only coming from a Harvard law prof, but someone who has argued 35 cases before the Supremes, and who is under universal attack for his conduct, regardless of politics. Tribe’s best defense, which will be parsed line by line:
The tweet I sent about Mr. Trump having sought my legal advice 20 years ago breached no confidence and violated no privilege.
It violated no privilege because it’s an inapplicable legal concept, as both ethics lawprof Michael Krauss and I made clear. One would have expected Tribe to have grasped that privilege is evidentiary, while confidence is ethical. Obviously not. But his twit breached no confidence because? Tribe offers nothing. It didn’t because Tribe says so, which is eerily reminiscent of another denial.
I did wonder whether disclosing my notes of that call would be improper, thought that raising that question in a tweet might help me think the issue through, decided that it wouldn’t be improper in any technical sense but concluded that I wouldn’t disclose the notes in any event.
Seriously, Larry? You admit to recognizing at least a question of impropriety, as if there is any doubt whatsoever, so you raised it in a twit to “help [you] think the issue through”? Is that really where Harvard law profs turn to crowdsource their ethical violations, among the vast array of legal scholars on the twitters?
People who doubt the propriety of my even having mentioned that Mr. Trump sought my counsel assume that the very fact of his call was some kind of secret. I don’t know for sure, but I have no reason to doubt that he let others know that he was calling me. He often expresses pride in seeking expert counsel.
As Krauss notes, there is the “space alien” defense, that maybe Trump, in some bizarre twist, announced to the world 20 years ago that he was turning to Tribe for advice, thus making this consultation public knowledge. It’s a million to one shot, even for Trump, but it could be, right? Except Tribe confesses that he has no knowledge of that being the case, and chooses to assume that the sound of hoofbeats is coming from zebras rather than horses. After all, when it doubt, deliberately violate ethics. Right, Larry? And confess to it?
Besides, the fact that he sought advice on a legal question was nothing to be ashamed about.
Whether it is or it isn’t, it’s not up to Larry Tribe to spew on the twitters. And yet Tribe put it out on social media, about a candidate whom he openly despises, for what purpose? Oh yes, because that’s where he gets his ethical advice. Totally legit.
In any event, I have never revealed the substantive topic of his inquiry, never said whether or not I offered him any advice, never agreed to represent him, and have said nothing at all about the content of our conversation other than that he asked my legal views about something.
As Paul Mirengoff explained at Powerline, this is the sort of disingenuous claim that only an academic could attempt to say with a straight face:
Moreover, Tribe’s disclosure is not innocuous; therefore he betrayed his duty of loyalty. The fact that Trump sought legal advice from a very expensive lawyer, coupled with Tribe’s statement that he was trying to figure out whether he could tell the public about it, casts Trump in a negative light for some whose vote he seeks. It therefore will tend to injure his bid for the presidency.
Innuendo is often far worse than reality. It may well be that the legal advice sought was innocuous, but the suggestion, deliberately spread in as public a forum as it gets, feeds into the worst speculation. As noted, Tribe, being crafty in his deliberate action, tried to create plausible deniability. But only an idiot would buy this, “gee whiz, maybe we were chatting about the care and feeding of orchids,” but I have to publicly ponder the impropriety of making my notes about this public. You know, we all keep notes about our innocuous conversations.
And then, Tribe delivers his coup de grâce:
That shouldn’t have raised the eyebrows it did; I guess I underestimated the cynicism that pervades some corners of the twitterverse.
It wasn’t Tribe committing an intentional violation of ethics. It wasn’t Tribe flaunting client confidences (which apparently is confused with privilege when taught at Harvard Law School). It wasn’t Tribe violating his duty of loyalty. Nope. It’s cynicism. All the people, the lawyers, the scholars, the non-lawyers, everyone, are all just cynical.
You underestimated something, Larry. It wasn’t cynicism.
As Tribe’s conduct has now demonstrated the fears of every person who speaks with counsel may be true, that a lawyer can reveal confidential communications publicly, on friggin’ twitter no less, and offer ridiculous rationalizations to dig their way out of the hole, it’s up to Massachusetts bar counsel to address this very public, very deliberate, very unethical conduct.
If Larry Tribe’s disingenuous, childish, ridiculous excuse to smear his former client goes unpunished, then there is no reason why any client will feel secure in his discussions with an attorney. Either client confidences and the duty of loyalty matter, or they don’t. Even for Larry Tribe. Especially for Larry Tribe.
Note: The issue here is legal, not political. Political comments will not be posted.