Nov. 11, 2015 (Mimesis Law) — Ed. Note: Scott Greenfield crosses Ken White, Los Angeles criminal defense lawyer, former Assistant United States Attorney and co-founder of the blog Popehat.
Q. You were the poster boy for a Biglaw corner office; Stanford undergrad, Harvard Law School, a journal editor-in-chief, then a federal clerkship. And instead of going straight for the bucks, you went to the United States Attorney’s office. Was there a burning desire to get the bad guys or was it part of some grander scheme?
A. In college I was looking around for a summer job that would help me get into law school, and I wound up working at the DA’s office in Los Angeles. I wound up working there three summers, and decided I wanted to be a prosecutor. In law school I did a gig as a student prosecutor in Malden, Massachusetts, and then an internship at the U.S. Attorney’s office. During my clerkship it seemed natural to apply for prosecutor jobs, and I got very lucky being hired by the U.S. Attorney’s office in Los Angeles — largely on the strength of my judge’s recommendation and because, as the U.S. Attorney at the time told me, I came very cheap.
I don’t think I ever had a full-on true believer mindset about being a prosecutor — I never thought I was destined to save citizens from evil, or anything. But I wanted to be a trial lawyer, and I thought the issues presented were interesting and challenging, and the work meaningful and, for lack of a better term, dramatic. In retrospect I wasn’t too reflective about it. I think that’s pretty common — we decide we want to pursue some path, and then look only at the things that point down that path. If the PD’s office had offered me a summer job back in 1989, maybe I would have started there out of law school.
I did a summer gig at a Biglaw firm. I liked the money (and this was before the money got truly stupid-crazy), but I didn’t see myself enjoying it. I turned down their offer at the end of the summer. Apparently that’s considered rude; years later they turned me down when I was looking to leave the U.S. Attorney’s Office. U mad, O’Melveny?
Q. As you well know, there are a lot of people who read you now and can’t quite understand how it’s possible you were a prosecutor, because they fall into the “all prosecutors are evil” category. What do you say to them to make them understand? Do you get tired or annoyed with people who refuse to grasp that there really are bad dudes out there who deserve to be prosecuted?
A. To me it’s just the flip side of the “how can you defend those people” attitude that defense lawyers get, so it doesn’t bother me that much. We all tend to go around with caricatures of our opposition. It’s easier to see them as just folks when you’ve been one of them. As a defense lawyer I value my experience as a prosecutor because it helps me evaluate how they actually think, as opposed to how they are stereotyped to think.
I have some serious problems with prosecutorial culture and with the structure of the criminal justice system, state and federal. And certainly some prosecutors are venal or power-mad or amoral. But that’s true in any profession. Prosecutors just have the power to give their character much more impact on lives. If your waiter is amoral he can’t take your house because your kid got caught with three joints and a handful of plastic baggies.
The U.S. Attorney’s office had — and still has — a lot of decent, principled people who are fighting the good fight. That job had some of the best camaraderie and team spirit I’ve ever seen. And I don’t have a philosophical problem with the concept of people being prosecuted for breaking just laws. I went after cases that I now regret — drug couriers, mostly — but plenty of fraudsters who preyed on the weak, too.
Q. After your stint with the United States Attorney, you took the Biglaw for a few years, first at Sheppard Mullin and then Paul Hastings. What happened. Why didn’t you stay? What made you decide that you wanted to have your own firm?
A. There were a few reasons I didn’t stay. One was money. One was a growing sense of disenchantment with the justice system. But looking back, I think that not figuring out yet how to deal with depression and anxiety was part of it. In 1997 my mom was diagnosed with Stage IV lung cancer. She was dead in 6 months, at 55. I spent a lot of time with her in the hospital and then in hospice, and it was a harrowing experience. It was almost certainly the trigger for major depression and anxiety. I didn’t know how to deal with it, and in part interpreted it as being unhappy with where I was and what I was doing — which was wrong.
I got a gig with another ex-AUSA at Paul Hastings to do white-collar defense and civil litigation. Bigfirm life was more palatable because I had trial experience and therefore value to contribute. When that partner left to start his own firm, I shifted to Sheppard Mullin. After a couple of years of that my partner Tom Brown and I decided to start our own shop.
Why did we do it? It’s very hard to represent individuals or small companies at Biglaw these days. The required hourly rates and required fee deposits are prohibitive to everyone but the super-rich or big corporations. The Biglaw firms have wide client bases that cause a lot of conflict problems. And Biglaw firms aren’t generally receptive to non-white-collar defense work. We wanted to be able to take the types of clients and cases we wanted, at flexible rates, doing the type of work we were good at, and on our own terms, without bureaucracy, and without stuffy squeamishness about non-white-collar clients. It was a great choice. I’m very grateful to Tom for his initiative and leadership in doing it.
I perceived, correctly, that I’d never be able to bring in many clients at Biglaw. I’ve had much better luck at our own firm.
Q. And then there was Popehat. When it started, it was more of a gamer blog than anything else, and you and the other bloggers were anonymous. How did this happen? What made you get together, start a blog. Who initiated Popehat, and was there any deep thought put into it in the beginning as to what you wanted it to be?
A. I was a nerd before I was a lawyer, and an aspiring writer before either. I used to write a lot on a computer gaming forum as an outlet for creativity — political and social debates, humor, etc. After a while I figured it would be fun to have my own platform to write regularly, and stated a primitive version of Popehat in 2005 on Squarespace. Patrick was someone I knew from gaming forums, and a kindred spirit of law, culture, and snark. Same with David — he was the far-smarter dude with a wicked sense of humor who knew about art. So I invited them to join.
I don’t think I put deep thought into it. It was just going to be a place where we wrote the sorts of things about topics that interested us, just on a blog instead of on the forum. The focus developed slowly.
Q. While Popehat was a “Group Complaint About Law, Liberty, and Leisure” at first, it has since morphed into a first rate law blog. While you and your co-blogger Patrick (whose last name remains a mystery, and whom, I believe, you’ve never met in person) are lawyers, what about the others? Other than the occasional post from Clark and your new blogging lawyer, Adam Steinbaugh, its really just the Ken show now. Was there a problem? Did the others peter out? Are they all good with what’s happened with Popehat?
A. I’d quarrel with the notion that we’re a law blog. We’re a blog where kindred spirits talk about what interests them. It just happens that the most prolific and long-winded authors are interested in law. Authors have come and gone, and are always welcome back. Not everyone gets the write-frequently bug, and real life intrudes. Nobody’s ever been tarred and feathered and expelled. Yet. Watch your step, Adam.
I also think we’re not a classic law blog because I’m not deliberately aiming at lawyers. The legal system has extraordinary power over us. Some old white dude (often) in a robe makes a decision based on interpreting law and all of a sudden someone is going to be executed, or not, or can get married, or not, or can say something, or not. But lawyers have always been a priest-caste with our own mumbo-jumbo that we make deliberately arcane. Who would pay us these rates if we didn’t? I’m interested in explaining important legal issues in a way that’s entertaining, not dumbed down but accessible, and not unnecessarily jargon-bound. It would be a good thing if everyone understood their rights, and how they are defended, more than they do now.
Q. The “Ken at Popehat” persona eventually became Ken White. You outed yourself in a post at Reason, though from what you’ve said it was about to happen anyway. Did it present a problem? As the pseudonymous Ken, you could be pretty rough on people who asked for a good smack. Did having your real identity known change that? Did you worry that someone you offended would come after you?
A: Three or four people identified me with good detective work before I dropped anonymity. One was a journalist who wanted to ask me about my experiences with a federal judge I had mentioned; he found me by asking people in the U.S. Attorney’s office if they knew a Ken who had adopted kids from Korea. Another dude — a law student at Tulane — worked it out when I mentioned what floor of a skyscraper I was on. Unless you are very stingy with details, or deliberately misleading, anonymity is not easy to maintain if someone wants to find you.
Going public hasn’t caused me any real problems. An occasional litigant has tried to use something I wrote on the blog against me in court, or has tried to rattle me by revealing they know that I blog. I’m never sure how I’m supposed to react. “Congratulations?” “I would have gotten away with it if it weren’t for you meddling kids?”
Now, on one memorable occasion, when I was pro bono counsel to Patrick Frey of Patterico on a free speech case, opposing counsel quoted a sarcastic aside from one of my posts as if it were literal, which Judge Wu accepted. That’s the risk of being sarcastic all the time. It turned out okay.
I don’t think that going public changed how I blogged much. When I write about my own cases I either take a much more professional tone or anonymize them — I don’t think it’s professional to take shots from the cheap seats, and I’ve tried not to. I wouldn’t bash a prosecutor I’m opposing by name, because I don’t think it’s fair they can’t respond (at least not in their own name).
Offended people have come after me, either with lawsuit threats or, in one case, actual lawsuits. Fortunately so far they’ve been too disorganized to cause any real problems. Totally worth it.
Q. You have become renowned for the Popehat Signal, seeking pro bono help for bloggers who are threatened with a lawsuit to silence them. There was the
Oatmeal case and
the knitters, for example. What made you decide that you were going to become the “go to” guy on the internet for people threatened with suit? Were you always deeply interested in free speech issues, or did this come with your experience online? Do you ever vet the people you champion for whether they should really be looking to their own supporters rather than a handout on the Popehat dime?
A. I’ve been interested in free speech issues since college. I did my senior honors thesis in political science on hate speech codes on campus — then a relatively fresh issue. Even during my years as a prosecutor I kept an eye on the law surrounding free speech. As I blogged, it slowly and naturally became a focus. I think that online free speech interests me because it’s an excellent example of what happens when established law meets new and different cultures and technologies. It’s living science fiction, in a way. We’re not riding hoverboards or rocketing to a moonbase, but we’re watching mass communication technology and the internet make breathtaking changes to society at a breakneck pace, and we’re watching how the law slowly evolves to deal with it.
I fell into the Popehat Signal because these cases fascinated me and I care about them. The combine many of the things that interest me — the law changing to reflect technological change, the clash of cultures that comes with that change, and the ways that the legal system fails to achieve justice because of its various defects. I’m only admitted in California, and I can’t help everyone, so I started the signal as a way to stay involved and help people indirectly.
Plus I hate bullies. Threatening to abuse the flaws in the legal system to shut someone up is bullying. I like helping people punch back.
As for the Popehat dime — well, you and I have had this discussion before. Yes, I think that sometimes interest groups and communities should do a better job of supporting their own, financially and through publicity. (For instance, I’ve thought for years that the conservative online community ought to be embarrassed at its failure to support the people targeted by domestic terrorist Brett Kimberlin’s lawfare.) But it’s easy for us to say how we’d rally support, because we’re sophisticated consumers of legal services. Most of the people who get threatened with bogus lawsuits aren’t. They don’t know how to start, or what the issues are, or how to find a suitable lawyer, never mind afford one. Sometimes people helped by the Popehat Signal have paid, at least at a favorable rate — the key has been to connect them with lawyers who are motivated and knowledgeable about the subject matter.
Q. After a bout with depression, you went live about the fact that you suffer from it. Were you afraid of the reception your revelation would receive? What about the question of whether, despite all the personal concern for your well-being, this impairs a lawyer’s ability and availability to serve his clients’ needs? Is this as easy a question as many would have it?
A. I was afraid. I’m afraid every time. I have talked about it obliquely at Popehat for years, but being a lot more explicit under my own name is difficult. I worry (at least in my gut) that judges and opposing counsel and clients will judge me, I worry that it will be used as a weapon against me, and so forth. Here’s why I do it: every single time, I get emails and even old-fashioned handwritten notes and letters thanking me for being open about it. I don’t think it’s because I’m a particularly super-special crazy person or that I’m better than others at explaining it. I think there’s not enough people being open about it — not enough people that depressed people and their families can identify with. In my post this May, I talked about the experience of meeting someone who was almost comically different than me in every cultural way, but with whom I connected strongly because of our shared experiences of depression. It makes a difference for me when people are open, and I want to make that difference for others.
After the most recent post, like every time, I second-guessed myself. Is this destroying my professional credibility? Is it self-indulgent rather than helpful? But then I got a handwritten letter from one lawyer across the country talking about how a post helped him, and an email from a father who talked about how the posts helped him understand what his son was going through. How can I stop when that sort of thing happens? I’m here because people helped me. I want to help people back.
Does it impair my abilities? Actually deep anxiety and depression tends to make me obsess over details. It’s unutterably miserable, but I don’t tend to miss things. But different people have different experiences. There’s one common thread — acknowledging it and treating it promotes the right result, and ignoring it or burying it encourages the wrong result. Between the lawyer who is open about mental illness and addressing it and the one who is denying it, take the open one every time.
Q. Popehat has a remarkable following of readers, and they stretch across the political spectrum. If there’s any doubt, a quick reading of the comment to your posts will dispel any notion that it’s only libertarians or cop-haters or any other identitarian group. But those same comments are often kinda wild and crazy, going off into conspiracy theories, misstating the law, indulging in wild speculation. Do you feel any responsibility for correcting the misguided, or at least not letting the huge Popehat soapbox be used to spread wrong ideas? What do you do about it? What should you do about it?
A. I think it’s a mistake to assume that the community of people who comment closely resembles the community of people who read. People motivated to comment are probably more likely to be people who feel strongly about things, whatever the site. No offense to our commenters. Except the annoying ones. You know who you are.
Whether and how I respond to commenters is largely arbitrary and mood-based. If I’m in the mood and it serves my interest in making law comprehensible, then I’ll do it. If I’m in the mood for a fight I’ll do it. If I think of a good line I’ll do it. But the nice thing about a fairly robust group of commenters is that often people correct mistakes before I get around to it.
But no, I don’t feel an obligation to correct commenters most of the time. I don’t think that most people read comments and expect them to be right. I want my content to be right, but I’m not going to be the dude from
the xkcd comic staying up all night because someone is wrong on the internet.
Q. Despite the lessons of your elite education, you can be a monumentally snarky kind of guy. You know your memes and have one of the wickedest senses of humor around, coining the glorious phrase, “snort my taint.” At least when you write. Yet when you interview, you are quite the serious lawyer, demonstrating knowledge, restraint and, frankly, extraordinary thoughtfulness. So who’s the real Ken at Popehat? Is it that wild snarky guy or that thoughtful, cerebral lawyer?
A. It’s a lot easier to be funny in print, I think. Live comedy is hard. Plus, bear in mind that Reason and FIRE and so forth all edited those interviews. They cut out all the parts where I sit there grinning like an idiot at my own jokes. Plus, I knew they wanted some serious content, so I gave it to them.
I think I try to suit the mood to the occasion. My father has a great love for language and a wicked sense of humor. Growing up was a constant exchange of puns and sarcasm and wordplay. I still enjoy that, at least in its place. I think we can connect with people, and keep their interest on complex topics, with irreverence and humor. But I tend to be more reserved in person with strangers.
Links, and other internet elements, are some of my favorite parts about blogging. It’s a whole new level of communication. I can convey sarcasm not just through the text, but by what I link to in the text — a new frontier for being a wise-ass. But memes? They’re just cultural references, not really that different than the type we’ve had for millennia. When you’re a student reading Shakespeare someone has to explain most of the cultural references to you, and many of them wind up being something like “lol Venetians are totally syphilitic,” which is a meme you could see developing on 4chan today.
Q. There aren’t many former AUSAs who are willing to speak out against what the government is doing. You are the rare exception, and you’ve done so eloquently and informatively. Now that you’re gone from the dark side to the side of the angels, do you have any regrets? Do you ever feel the impulse to prosecute again? Do you wish you took the path that led to the Biglaw corner office? Do you wish you never revealed that Los Angeles criminal defense lawyer Ken White was the mythical Ken at Popehat?
A. I am incredibly lucky to be where I am, and happy with the team I have and the challenges I now face.
I’d still find it difficult to handle Biglaw. I’m happy to give good service to big companies, but I like to represent individuals and small companies too, and Biglaw is just too expensive. Plus, since we’ve been on our own for ten years down, I’m probably permanently un-housetrained. And I can’t see Biglaw being happy with a lawyer writing a blog that thrives on pony paranoia and taint references.
At this point, I’m too much of a defense true believer to ever go back to being a prosecutor, even if they’d take me after I’ve run my mouth so much. I know I couldn’t further work to sustain the War on Drugs, which I see as a grave and immoral tragedy. There are plenty of prosecutors pursuing righteous cases, but I don’t think I can ever be one of them again.
