ACLU Cover Up in Alabama?
During a 2022 ethics probe, attorneys tried to get their stories straight. There’s a paper trail.
As I reported in March, several of America’s most eminent gender lawyers are facing sanctions over their hare-brained scheme to avoid a conservative judge. It started when they sued Alabama in 2022 for banning pediatric gender medicine.
A panel of three federal judges determined last year that the 11 of them in leadership roles “purposefully attempted to circumvent the random case assignment procedures” of two courts. That panel issued a report and left it up to Liles C. Burke – that dreaded conservative judge – to determine sanctions.
On Friday, Judge Burke ordered four of these lawyers to turn over a document they’d shared with each other in 2022, when the panel was investigating them. Burke thinks it might show they committed perjury or “fraud on the court.” A cover up, in other words.
The lawyer facing a perjury charge is Carl Charles. She was working at Lambda Legal and has now moved on to the US Department of Justice.
The lawyers who might have committed fraud on the court are James Esseks (director of the ACLU’s LGBTQ project), Kathleen Hartnett (a partner at the major commercial law firm Cooley who clerked for liberal icon John Paul Stevens), and LaTisha Faulks (with the ACLU’s Alabama affiliate).
One Honest Answer
The 2022 ethics probe examined the conduct of 39 lawyers across two teams. One of the teams had brought a lawsuit called Walker. Its lawyers worked for the ACLU, Lambda, Cooley, and a local Alabama firm. When the ethics probe began, the Walker team circled the wagons and retained the same counsel to represent all of them, Barry Ragsdale of Alabama and the biglaw firm Kirkland & Ellis.
The panel asked each of the 21 lawyers how they prepared for their testimony. This is a standard question to suss out whether anyone told the witness what to say. Most of the 21 Walker lawyers didn’t trigger any alarms. But one of them, Milo Inglehart of the Transgender Law Center, mentioned a document:
“We didn’t get specific things to say. There was a sort of Q and A document that was circulated, I think, last night for us or maybe a draft was circulated earlier in the week, but the final version was circulated last night that kind of walked through, like, things they think might come up or like—yeah, just to sort of prep folks.”
A panelist asked:
“When you say ‘Q and A,’ ‘A’ would be the answers. Was there a suggestion, all right. If you’re asked this question, here’s the answer to use?”
Inglehart responded:
“Usually it was sort of like—I’m trying to remember. I just looked over it last night—like, outlining, like—like, general—it wasn’t like a word-for-word thing, but like things that might be useful to touch on or like—yeah.”
The document is believed to be 8-10 pages long.
What Took So Long?
The panel ordered the lawyers to produce the Q & A document back in 2022. The lawyers objected and the order apparently got lost in the shuffle.
Judge Burke seems to have run across the Inglehart testimony in May 2024. (Inglehart is not one of the 11 attorneys facing sanctions.)
So What?
The idea of a “Q and A” document drafted by senior attorneys and shown to the junior ones raises questions. Did the senior attorneys use it to influence their colleagues’ testimony? Did it contain “recollections” that weren’t actually true? Did it tell them what not to say? How come only one out of 21 Walker lawyers mentioned it when asked how they prepared?
As Judge Burke put it in his order:
“[W]hether the Walker Respondents coordinated materially omissive or otherwise misleading testimony to the Panel is crucial to the Court’s evaluation of those Respondents’ good or bad faith and to its work to fix an appropriate sanction. Until it reviews the document, the Court cannot know whether it reflects a good faith attempt to prepare for a hearing, an orchestrated attempt to distract or mislead the Panel, or something else entirely.”
The Order
Burke’s original deadline for the attorneys to produce the Q & A document was May 20. They fought the order for weeks by filing various petitions. Former solicitor general Donald Verrilli, Jr. represented them in one, which shows you how classy they are.
Other than in that filing, Hartnett now has her own counsel
On Friday Burke denied their efforts in a thorough 51-page ruling.
They coughed up the Q & A document yesterday. Now Burke is reviewing it “in camera,” meaning it’s not public. He’ll decide whether it should be protected by attorney-client privilege. If it is, then he won’t consider it when meting out sanctions. Even though the document sounds like the sort of thing that would be protected, Burke thinks the “crime-fraud exception” to the privilege might apply – if the document encouraged misleading the 2022 panel.
What to Expect
I don’t think this document will bring down the ACLU. It will probably appear innocuous. How hard is it to draft some talking points that (1) convey the party line to your colleagues but (2) do not say “HERE IS WHAT YOU MUST SAY TO THE PANEL!”
We might see an ambiguous outcome, where Burke is inspired to ask more questions but he never finds a smoking gun.
The Other Side
Substacker Chris Geidner has also been covering this story. He’s my polar opposite: affirming, inclusive, popular, and troubled by the court’s treatment of James Esseks.
Recently Geidner highlighted an apparent error by the panel.
In the frenetic few days after both teams filed their lawsuits in 2022, at one point they were assigned to Judge Axon. She was a Trump appointee who the lawyers were happy with because she had kids (?). Then the cases were reassigned to Judge Burke. The lawyers feared he’d “snagged” them from Axon.
The panel later admonished them for the conspiracy theory, saying the case was reassigned because Axon was busy presiding over a trial. But they were wrong. Axon’s trial had pretty much ended by then. Does this mean the panel lied? Why?
I still don’t believe that Burke would “snag” this case. It’s a nightmare. If the judges did pass the file around for inappropriate reasons, my guess would be that Axon was trying to palm it off. Because it’s a nightmare.
James Esseks has been making dishonest arguments about gender since 2005. He gets away with it because medical experts back him up. But when you “subvert the administration of justice,” no endocrinologist can save you.
Witness prep is one thing. "I've read your reports and I'm going to expect you to answer this way." "If I misunderstood your report I expect you to tell the truth, and please create a supplemental to clarify the earlier reports."
One of the favorite witness prep techniques is to say "I'm sorry, I don't have time to prepare you, just answer the questions and tell the truth." Which is used to embarrass someone known for insinuating wrongdoing in witness prep.
Talking to a lawyer before testifying is normal. Being given a full script is not.
Always enjoy your work. Thanks