David Lat on the Crystal Clanton Matter

As usual, Lat puts it very well in his "Original Jurisdiction" Substack newsletter (I've paid for a subscription, and highly recommend it):

Last fall, [Chief Judge Pryor] was widely criticized for hiring an allegedly racist law clerk—specifically, Crystal Clanton, now a 3L at George Mason aka Scalia Law. According to a 2017 New Yorker article, Clanton once texted a co-worker at Turning Point USA, the conservative nonprofit where she worked before law school, "I HATE BLACK PEOPLE. Like f**k them all…. I hate blacks. End of story."

At the time, I did not jump on the Pryor-bashing bandwagon. After noting that he's (1) a smart person who knows how to run a Google search and (2) a highly regarded Supreme Court feeder judge, I argued that Chief Judge Pryor "wouldn't want to 'waste' a clerkship on someone who would be radioactive to the justices." So I speculated that there must be more to this story—and that perhaps Justice Clarence Thomas, the nation's highest-ranking and most famous Black jurist, had vouched for Clanton to Pryor. (Clanton worked for Justice Thomas's wife, Ginni Thomas, after getting fired from Turning Point, and Chief Judge Pryor is a leading feeder judge to Justice Thomas.)

It turns out that there was more to the story. After seven members of Congress called for an investigation into Pryor's hiring of Clanton, the Eleventh Circuit referred the complaint to the Second Circuit. Chief Judge Debra Ann Livingston of that court conducted an investigation and wrote up her findings, as reported by Bill Rankin of the Atlanta Journal-Constitution:

In her ruling, Livingston cited one of the Turning Point USA's executives who said Clanton treated everyone with "kindness, respect and fairness." This person also said "the media reports are not accurate," Livingston wrote.

The Turning Point executive "had determined that the source of the allegations against (Clanton) was a group of former employees," Livingston wrote. "One of these employees was fired after the organization learned that this person had created fake text messages to be used against co-workers, to make it appear that those co-workers had engaged in misconduct when they had not."

Pryor and Maze knew about the allegations against Clanton when they interviewed and hired her. And both determined the allegations of racist behavior by Clanton were untrue and found she was highly qualified to serve as a clerk for them, Livingston wrote.

And as I had speculated, yes, Justice Thomas went to bat for Crystal Clanton:

In [a letter to the Second Circuit], Thomas said he and his wife took in the distraught Clanton after she left Turning Point USA. She lived in their home for almost a year, the justice said.

"I know Crystal Clanton and I know bigotry," Thomas wrote. "Bigotry is antithetical to her nature and character."

Thomas, who said he recommended to Pryor that he hire Clanton as a law clerk, added, "We have reached a sorry state of affairs when a young adult can be indelibly marked with today's 'scarlet letter' of defamation. This is especially true in the judiciary."

So why didn't Crystal Clanton explain all of this at the time? According to the letter that Chief Judge Pryor wrote to the Second Circuit, she stayed silent because she's bound by a non-disclosure agreement with Turning Point.

In my opinion, this was a misstep on Clanton's part. She should have explained that she was framed, non-disclosure agreement be darned. Surely she could have gotten a waiver on the NDA; Charlie Kirk, founder and leader of Turning Point, was the Turning Point executive who cleared Clanton's name.

But even if she couldn't have gotten a waiver, the reputational damage to Clanton clearly outweighed any risk of being sued on the NDA. Maybe Clanton thought that staying silent was the honorable thing to do—but her silence wound up subjecting the two judges who hired her as a law clerk to unjustified criticism and an investigation. This all could have been avoided had she simply explained she had been framed (and if she was truly concerned about getting sued on the NDA, she probably could have gotten word out through surrogates—which might still have left her open to suit, but would have reduced the likelihood of a lawsuit even further).

Again, though, please note that I'm sharing with you what I happen to believe about L'Affaire Clanton; others believe differently. Rep. Hank Johnson (D-Ga.) told the Journal-Constitution that Chief Judge Livingston's report was "nothing more than a rubber stamp that gives two influential federal judges cover for hiring a law clerk with a reported history of racist conduct." Similarly, Kathryn Rubino of Above the Law, who broke the news of Clanton's hiring, sounded skeptical notes about the claims of fabrication. So I urge you to read Livingston's report, which I personally found credible, and make up your own mind.

Comments

[dwb68]

idk. "I've been framed" is literally what everyone says. Sometimes the best course is to ride out the media circus quietly until the mobs moves on to another victim. There is nothing Clanton could have said that would prevent the two judges who hired her as a law clerk from being subject to criticism and an investigation (aka "Haters gonna hate"). The fact that she has been cleared is not preventing Rep Johnson and others from calling it a rubber stamp. Such is the state of the current universe, facts simply don't matter.

[Darth Buckeye]

I f*cking hate Democrat party congresspeople like Hank Johnson. End of story.

[David Nieporent]

"I don't remember doing that," however, is not what everyone says. Innocent people generally proclaim their innocence.

[LawTalkingGuy]

I wouldn’t go that far. After all there are good reasons to shut up even if you’re completely innocent if criminal liability is at issue (or even significant civil liability). But here staying silent is telling because:

1. The person asking is a journalist and the issue is did they send racist texts…there is no criminal liability.
2. If you have connections to Ginni Thomas and Clarence Thomas after being fired…a major conservative group likely isn’t going to try to enforce an NDA against you.

And in any event…she didn’t really stay silent, she did the “I don’t recall” not a “no comment”

[Bob from Ohio]

She's still young. She responded in an imperfect way to a reporter from a liberal magazine, let's not pretend the reporter was a neutral truth seeker.

[David Nieporent]

Yes, sometimes silence is better than assertion of innocence, I agree. But as we both agree, she didn't choose silence. She chose non-denial denials. The only time that a non-denial denial is better than a categorical denial is if the categorical denial would be false.

The NDA excuse simply makes no sense, both because there's no rational reason for either her or TPUSA to have entered into one in this context, and because she didn't stay silent.

How would the NDA have come about? She threatened to sue them, and they entered into a settlement, in which both sides agreed not to discuss it? But what would've been the basis for a suit, and why would they feel the need not to discuss it anyway if both sides agreed what had happened? "You promise not to disclose that you didn't write the texts, and we'll agree not to disclose that you didn't write the texts." ????

Here's the most charitable guess I can come up with: when she was hired, she signed a blanket NDA. And when she was questioned a couple of years later she assumed that it covered this situation too. But, as we both agree, she didn't say silent. So she violated it. But in a way unhelpful to her.

[Life of Brian]

I well remember you pushing all in on her guilt in the many past threads about this, despite the raft of indicia that showed the story simply didn't make sense. Are you really going to try to distract from the egg on your face by complaining that she didn't deny it in exactly the way that suited you?

[Armchair Lawyer]

Yes, yes he will.

[Brett Bellmore]

"I don't remember doing that." is what *I'd* say if you asked me about something years ago, as opposed to last week. I'd probably ad something about it being out of character, too, if I thought it was.

Look, some of us are picky about the language we use, and some of us aren't. It seems unfair to hold it against somebody that they're not willing to categorically deny something when it's at least theoretically possible it could be true.

[Lee Moore]

Hmm.

First, how does Judge Prior know the true story ? Does the 2nd Circuit investigation pierce the non-disclosure agreement by force of law, so that Clanton is not bound by it in connection with the investigation ?

Assuming this is so, then I disagree with the rest of the article.

She should have explained that she was framed, non-disclosure agreement be darned.

Ah, yes, what we need desperately at this hour is an infusion of fresh young lawyers whose attitude to whether their word is their bond is entirely tactical.

if she was truly concerned about getting sued on the NDA, she probably could have gotten word out through surrogates

So she should have breached the agreement.... deniably. That's what a smart lawyer would do. If this is the advice that senior lawyers offer to newbies, it's not surprising that parents desperately hope their daughters will go into prostitution rather than pursue a career in the law. “O wonder! How many goodly creatures are there here! How beauteous mankind is! O brave new world That has such people in't!”

her silence wound up subjecting the two judges who hired her as a law clerk to unjustified criticism and an investigation

An investigation which has cleared her, cleared the air and evaporated the criticism. Who knows – perhaps she offered to resign and the judges told her to hang tough ?

Surely she could have gotten a waiver on the NDA

Obviously if she didn’t ask, then she’s a bit slow. But since she probably isn’t slow, then we deduce that she probably did ask and was refused. Raising the question – what was Turning Point thinking ? They look like the bad guys here, not her.

[Lee Moore]

I am reminded, in connection with the difficulty posed by the obligation to keep one's mouth shut, when it is to your advantage to open it, of a good line by the actor Christopher Lee, who was some kind of special forces / intelligence offcer during WW2.

Journalist : "What exactly did you do during the war ?"
Christopher Lee : "Can you keep a secret ?"
Journalist : "Yes, of course !"
Christopher Lee : "So can I "

[Alpheus W Drinkwater]

Lee once informed a fellow actor on the set of some horror movie that the actor's reaction on being stabbed wasn't realistic, and he knew that from first-hand experience.

[LawTalkingGuy]

Did Lat also address why Pryor and Maze decided not to answer any questions about this until forced to months later by the Judicial Conference? That seems to me to be the way bigger misstep than Clanton worrying about the NDA initially. I don't think there is a judicial ethics canon against judges answering press questions, particularly about a hiring decision.

And I found this statement from Pryor completely disingenuous and unduly contemptuous of a little accountability:

"The complaint against me alleges, without any evidence, that I either failed to investigate this scurrilous accusation or that I knowingly hired someone who had engaged in racist behavior. It saddens me that any member of Congress would make such an unfounded accusation against a federal judge or smear the reputation of an innocent law student."

The accusation was actually well-founded because in the New Yorker article about her, she did not actually deny the authenticity of the texts and in fact hedged by asking not to be judged. And there was absolutely nothing out there about fake texts or NDAs.

So this is what the public knew about her. Then Pryor (and Maze) hired this person...and refused to answer questions when asked by the press. Or put out a statement saying their clerk was the victim of a smear. Or anything at all.

So the obvious question that the legal community, and eventually Congress had was: did they vet this person, and if they knew about this and found the report credible...were they tolerating open bigotry as a federal judge?

Pryor (and Maze)'s arrogance did a great disservice to the clerk herself and to the courts in general. They viewed public questions as beneath contempt apparently and in the process sullied their own reputation.

[Noscitur a sociis]

Rather than simply admit you were wrong, you're seriously going to pivot to attacking Pryor for not preemptively apologizing to your satisfaction?

Good luck with that.

[LawTalkingGuy]

Did you read any of my posts on this subject ever? My whole thing was about Pryor and his failure to speak up. This is what I've been saying the entire time. It's not a pivot...it was my entire point.

I kept going on about how he has an obligation to assure the members of the bar, his colleagues on the court, the litigants before him, and the public generally that he isn't supporting invidious racism in his chambers.

And I actually wasn't wrong...like I predicted, Pryor was forced to respond to an ethics complaint about this and explain himself. People here doubted that at the time.

I'm a little disappointed...you're usually a much more honest broker than this.

[Noscitur a sociis]

Did you read any of my posts on this subject ever? My whole thing was about Pryor and his failure to speak up. This is what I've been saying the entire time. It's not a pivot...it was my entire point.

It's enough of a pain to find old comments on this site that I'll stop at one (which from context appears to have been your first):

LawTalkingGuy
October.10.2021 at 6:21 pm
Flag Comment Mute User
You know what I learned from Chief Judge William Pryor this past week? That he hired a clerk named Crystal Clanton who was known for being forced out of TPUSA for among other things saying: “ I HATE BLACK PEOPLE. Like fuck them all . . . I hate blacks. End of story.” Now when asked about this a short four years ago, Clanton didn’t deny she said that, presumably because the screen shots the New Yorker had were authentic. She did say this:“ 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.” So at best a somewhat weasel acknowledgement without trying to take responsibility. But perhaps most notably: not an emphatic and remorseful apology.

Which brings us back to Judge Pryor. Why would the chief judge of a judicial circuit and SCOTUS “feeder” judge hire this clerk? Is she some kind of legal genius? Well she’s at Scalia Law a respectable 41 in USNWR rankings but certainly not the cream of the crop. But you might say she was a standout student. Though she wasn’t EIC or even on law review or even any other journal. Now you might say those are kind of BS credentials for assessing legal talent, and I’d generally agree. But we also know those are the credentials federal judges, particularly circuit courts and SCOTUS, look for in their clerkship candidates. So it is extremely notable that she doesn’t have those. Perhaps being friends with Ginni Thomas helps?

Pryor has refused to comment on this despite being asked. Which makes sense since he’s a life time tenured federal judge who doesn’t need to be accountable to the press for his decisions, particularly his hiring ones. I suspect, however, that he can’t escape this forever. I assume the motions for him to recuse or ethics complaints to the Judicial Conference will prompt some sort of response. His impartiality on cases involving Black litigants is certainly called into question now. (Muslims/Arabs too, lest we forget she ALSO was spreading bigoted memes about them too)

It also might be embarrassing for him if she has a problem getting through character and fitness if she intends to take the bar.

I’ll close with a note about Josh. Stellar thinker that he is, he thinks now is the time to attend panels with and ask people to learn from Judge Pryor, as if Pryor isn’t in the news for hiring an unrepentant racist as a law clerk. If he wasn’t so interested in promoting his agenda and cultivating his connections to seem important he’d make a statement condemning this. The march of his absolute moral bankruptcy continues.

I don't see how you can fairly characterize this as a complaint about a "failure to speak up" as opposed to criticism for the actual hiring decision, but I'll let other readers judge for themselves.

[LawTalkingGuy]

So no. Thanks.

[Life of Brian]

Yeah, that weeks-long, single-issue, Behar-grade harangue was what finally led me to block LTG. And I don't do that much around here.

[LawTalkingGuy]

I’m so sorry my desire to have a transparent and non-bigoted judiciary offended you so much.

[Squirrelloid]

It's evidence because they didn't deny it? What?

[LawTalkingGuy]

If you are confronted with something you allegedly wrote and you don't deny saying it, and then ask "not to be judged for the things you said," it's a pretty fair inference that there is a strong possibility you said that thing.

[Bob from Ohio]

"pretty fair inference that there is a strong possibility"

Logic!

[LawTalkingGuy]

Yes actually. Do you know what an adverse inference is?

[Cal Cetín]

'Clanton, who resigned after serving as the group’s second-highest official for five years, at first declined to comment. “I’m no longer with Turning Point and wish not to be a part of the story,” Clanton told me over e-mail. Later, in a second e-mail, she said, “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.”'

https://www.newyorker.com/news/news-desk/a-conservative-nonprofit-that-seeks-to-transform-college-campuses-faces-allegations-of-racial-bias-and-illegal-campaign-activity

[Michael P]

Yes, but the disingenuous shits who want to blame her and/or Pryor for not exactly following their preferred scripts think it is damning that she said "no recollection" rather than "never happened".

[Jonny Scrum-half]

Well, on a "legal" blog I would expect that people would understand that there's a very big difference between "never happened" and "no recollection," particularly about things like sending racist messages. If I'm asked if I sent an e-mail saying that I hate black people, my answer isn't going to be that I can't be expected to remember every e-mail that I ever sent. I'm going to say, "no."

[Michael P]

Thanks for self-identifying as a disingenuous shit.

[LawTalkingGuy]

You’ve been very big on this “I don’t remember” thing. So….How many emails or texts about have you sent about which races you hate?

[Michael P]

No, you are the one who has been very big on the supposed implications of this "I don't remember" thing.

Except you said, not even 96 hours ago:

This is and always was mostly about Pryor and how he handled it.

If you did not exist, DaivdBehar would have to invent you.

[LawTalkingGuy]

Don’t you see how they’re connected? Pryor complained that this was all baseless speculation and it was just terrible that people questioned his integrity. But her response to the allegations indicated the speculation about her wasn’t baseless! So Pryor is being disingenuous in his shock that people were asking and he should have realized it was a big deal.

If he can’t see how people would have questions based on the “I don’t recall” defense to allegations….he shouldn’t be a judge because he’s apparently terrible at it.

[Michael P]

Stop digging that hole, unless you really want to convince us that you are worse than what Behar typically accuses lawyers of being.

You are just like all those sad, deluded people who are bitterly clinging to hopes that Mueller will finally release the pee tapes.

[LawTalkingGuy]

No. I just am a person who can 1) notice weasel words 2) notice judges who should be forthright instead of silent and evasive about things people have questions about. It’s pretty simple.

If Ed Whalen broke a story about Kentaji Brown Jackson hiring a former Students for Justice in Palestine member who was confronted with texts that said: I hate Jews” and they said “I don’t recall sending those” and the judge said nothing…you’d correctly be up in arms about it.

[Michael P]

No, I'd want more corroboration than just one article citing people who had been fired/dismissed by SJP. I might note the first article, but I wouldn't take it as gospel or demand judges dance to my tune on the basis of a single partisan report.

[LawTalkingGuy]

All he had to do was say it was fake. Literally. He couldn’t even manage that because he has contempt for the public.

[Armchair Lawyer]

LTG,

When Senator Cruz asked the FBI if it had agents and confidential informants actively participate in the events of January 6th, the response was "I can't answer that"

When Senator Cruz asked the FBI if federal agents actively encouraged violent or criminal conduct for the events of January 6th, the response was "Not to my knowledge, sir"

You claim to recognize "weasel words." Do you recognize them here? Or do your views suddenly shift.....

[David Nieporent]

It is indeed damning. That's because actual lawyers understand the difference between categorical denials and non-denial denials using weasel words.

[bevis the lumberjack]

It’s damning to you because she’s on the other team.

She lived with a mixed race couple for a year. They’d have picked up on her animus toward blacks if where there.

And there is information available subsequent to her disinclination to talk. The source of the text has been identified and it ain’t her. How can anything be damning at this point unless you simply want her damned?

[Bob from Ohio]

He is a strange kind of libertarian who believes all accusations.

[David Nieporent]

Bob is a normal kind of Trumpkin who openly admits he has no principles and only cares if the things he says and does advance his agenda.

I do not, of course, "believe all accusations." For example, I repeatedly defended Kavanaugh here at the VC, finding the accusations against him ranging from underwhelming and unconvincing (in the case of Ford and Ramirez) and obviously lies (in the case of Swetnick).

[David Nieporent]

The source of the text has been identified and it ain’t her.

Sez who?

Charlie Kirk?

Even if Kirk weren't a Trumpkin grifter with less credibility than Bernie Madoff, that explanation would be dubious. If it were true, why wouldn't he have said that at the time if it were true? Why wouldn't he have said it publicly at any time over the last few months?

[Armchair Lawyer]

"Sen. Ted Cruz: "Did any FBI agents or confidential informants actively participate in the events of January 6th? Yes or no?"

FBI: "Sir, I can't answer that.""

[Armchair Lawyer]

""Did federal agents or those in service of federal agents actively encourage violent or criminal conduct on Jan. 6?" Cruz asked, noting that this was "not an ordinary law enforcement question" but "a question of public accountability."

"Not to my knowledge, sir," Sanborn said."

[Armchair Lawyer]

Neirpont... "It is indeed damning".....

[Leo Marvin]

The difference between denying for oneself and denying for others: how does it work?

[Michael P]

It doesn't. An FBI witness should know how to prepare for testimony before Congress. He's not some random schlub they pulled off the street that morning.

[LawTalkingGuy]

Maybe he did and he couldn’t obtain any knowledge that what Cruz was saying had any basis?

[Armchair Lawyer]

Funny how LTG's views on weasel words suddenly changes....

But to answer your point Michael, the FBI witness did likely know how to prepare. To specifically make sure they had no knowledge of anything important, so that when Congress asked "inconvenient questions" the witness could answer truthfully to some extent. It's a form of institutional lying.

[David Nieporent]

Prepare how? Did you think he could ask every single federal agent employed by the U.S. government, and every single person "in service of federal agents," whatever that phrase could be interpreted to mean?

[Michael P]

David, the DoJ has described this as one of the largest investigations in US history. If the senior table of the FBI doesn't already know whether they or their informal agents contributed materially to the lawlessness of 1/6/2021, that is itself a major concern for accountability.

The FBI's answer indicts their processes for investigation, for preparing for Congressional testimony, or both, even before we get to the implications of a possible "yes" answer to Cruz's question.

[David Nieporent]

You can't understand the difference between someone being asked a question about something within his or her personal knowledge, and something not? Clanton 100% knows whether she sent those messages. He doesn't 100% know what an amorphous group described as "federal agents or those in service of federal agents" did.

[Brett Bellmore]

Clanton 99.999% knows whether she sent those messages, because any rational person understands that their memory is fallible, and reserves at least some minimal degree of doubt about what it is telling them.

[Lee Moore]

The accusation was actually well-founded because in the New Yorker article about her

Good one 🙂

Incidentally how does the New Yorker stand in re a potential libel action ?

[LawTalkingGuy]

Um very good? They had the texts, they talked to all the principles involved about it and got their statements on the record for the article. Just because something turns out not to be true doesn't mean its libelous. It seems they followed the standard of care and weren't negligent.

[David Nieporent]

*principals.

[LawTalkingGuy]

Right. Thanks.

[Bob from Ohio]

There are few, if any, federal judges who would have commented on the matter as you imagine is proper.

'legal community [you], and eventually Congress [a few democrats]"

Just about everyone else knew it was BS from the get go

[LawTalkingGuy]

There are few, if any, federal judges who would have commented on the matter as you imagine is proper.

And that's a huge problem. Judges are public servants and should view themselves as accountable to the public. Life tenure is not a greenlight to behave contemptuously towards them.

Yes, I am part of the legal community, and have high standards for judges. As did many other people who brought attention to this. You may enjoy being a sub to federal judges, but I and other people have some self respect and some standards.

"Just about everyone else knew it was BS from the get go."

No. You guessed it was bs. Would it have been BS if it was true? You may think tolerating racism in your chambers is just BS, but again, people with standards do not.

Also: you were straight up wrong: you denied this would even be investigated. I was right he was forced to respond

[Commenter_XY]

LTG....Maybe it is time to move on from this? A completely false and scurrilous accusation was made. You know it is false. Why give it currency?

[LawTalkingGuy]

I don't think I should move on from expecting better from judges. That's what this was about. Judges need to be forthright when asked about things of public concern that can't just be waved away by pointing to a published opinion or saying they can't comment on cases. This wasn't a case, it was a hiring decision. In any other branch of government, those are scrutinized by the public...often for much less powerful and influential positions than that of federal clerk.

What I give currency to is the judges' complete failure to recognize the seriousness of the issue and the legitimacy of the public's questions. Had they recognized that, we wouldn't be still discussing this months later (and in the context of an actual ethics complaint no less)

[Stephen Lathrop]

Commenter_XY, did I miss something (I may have, been skimming this)? Did the person the New Yorker relied upon as the source actually confess that what went to the New Yorker was made-up, false, no good, lies. Or is it the case that that person has been impeached with a charge, (or proof) of telling false stories in some other context?

[David Nieporent]

Having reviewed the facts and ruminated, I don't think there's any solid basis for concluding that the accusation was "completely false and scurrilous." There are still far more questions than answers. (Indeed, perhaps even more questions now than before.)

The notion that these two judges knowingly and deliberately hired a racist — I am convinced that that's not true. They didn't ignore the allegations; they looked into them, and decided that they didn't believe the allegations. That's enough to satisfy their ethical obligations. LTG is right that they should've said this from the beginning; it would have violated no oath or obligation for Pryor or the other one to say exactly that: "I understand your concern, but I looked into the matter and am convinced the allegations are false."

[Commenter_XY]

Thank you = The notion that these two judges knowingly and deliberately hired a racist — I am convinced that that's not true. They didn't ignore the allegations; they looked into them, and decided that they didn't believe the allegations. That's enough to satisfy their ethical obligations.

[Bob from Ohio]

"You guessed it was bs. "

There was a "pretty fair inference that there was a strong possibility" it was BS.

[Bob from Ohio]

"a sub to federal judges"

An underwater boat?

[LawTalkingGuy]

No. I’m implying you’re the sub in a dom-sub relationship with federal judges (at least the ones you like) and you actually like it when they treat you as a member of the public like crap.

[Bob from Ohio]

Um, not familiar with that type of relationship or its jargon. Um, unlike you.

[LawTalkingGuy]

Yes. I am aware of things in the world.

[David Nieporent]

I think many judges would have said, "We've looked into it, and we're satisfied that the allegations are baseless." This isn't about a case, where the judge isn't ethically allowed to say anything.

[Cheerio]

"The accusation was actually well-founded because . . . she did not actually deny . . . "

Much has been noted over the years about the subtle-but-dangerous power of being coerced into having to deny something without sufficient cause. Yet, that dynamic persists.

Much like how society has eventually had to reckon with old canards like "if you're not doing anything wrong, you don't need any privacy" and the like ("reckon" in the sense that we're now used to at least dealing with it overtly...), we likewise now need a more explicit conversation about what the standards are for when people do - and don't - need to dignify accusations by addressing them.

[David Nieporent]

"I'm not going to dignify that with a response" would still have been better than what she chose to go with.

[Leo Marvin]

Immeasurably better.

[bevis the lumberjack]

"The accusation was actually well-founded because in the New Yorker article about her, she did not actually deny the authenticity of the texts and in fact hedged by asking not to be judged."

No. Her declining to discuss it had no bearing either way on how well-founded the accusation was. If you want to say it gave the "appearance" that it was well founded, well sure.

But the fact that the accusation was based on fake texts created by an apparent serial faker of texts means it wasn't well founded. And it was never well founded. Her silence and that of the two judges doesn't change that.

[Stephen Lathrop]

In journalistic practice, if you confront someone with serious allegations, and get no denial, and have some other evidence, and no inkling elsewhere that anything is wrong, that is slam-dunk well-founded. I presume recognition of that explains the otherwise-mysterious absence of a libel suit.

Which still leaves unaddressed the question of how to answer the peculiar absence of a denial.

What we see on this thread is revival of what I have come to think of as Trayvon Martin syndrome. It seems to be a mainly right-wing affliction: You get an unresolvable controversy, where the smart thing to do is suspend judgment and await further evidence—allowing the likelihood that further evidence may never come. But someone on the political right decides some contested, unprovable interpretation is exactly right, and then others fall in to chorus that the proof is in, the case is solved, and their preferred interpretation prevailed as a matter of accepted fact.

Lots of times stuff happens, and you have to concede you don't know what it really was. People willing to admit that are far wiser than the ones who will not.

[santamonica811]

Well, one of three things happened.
1. She was framed, and never said those racist awful things.
2. She was not framed, did say those awful things, but that one statement is not representative of her character.
3. She was not framed, did say those awful things, and they do, in fact, reveal her true character, even though she is able to disguise and hide it from most other people.

I have ZERO idea which of these 3 applies. Since Pryor is perfectly free to hire whomever he wants, and since he obviously does not feel deceived; that's the end of the matter for me.

(I will observe that, if I wanted people to think the worst of me in a similar situation, I would have acted like Clanton...to say absolutely nothing. I also find it difficult to believe that any NDA would cover a *denial* of speech. This woman obviously had, and has had, extensive contact with excellent attorneys. Hard to imagine that no one told her that an overly-restrictive clause would never been enforced. If she had been accused of murder, could she have been barred from saying, "I was not in DC on the 12; I was in Oregon."? )

[santamonica811]

. . .
Should have added: If someone claims that they are bound by an NDA, it's incumbent on them to then produce that NDA. I'd like to see what it says, if it indeed did 100% censor her ability to provide and excuse/explanation, etc..

[Ridgeway]

Lots of NDAs actually make the contents and even the existence of the NDA confidential.

[santamonica811]

Back when I was in law school (class of '91), we talked about this in our First Amendment class. Our professor said that he was unable to find any case that upheld the right of an NDA to suppress any mention of the NDA itself. (Although I have no doubt that lots of NDAs do have this included...I just don't see how that's enforceable.
Q: Why did you do/not do X?
A: I am not allowed to say.
Q: Why can't you speak freely and truthfully?
A: I am not allowed to say why I am not allowed to say.

I think the next question should be--if you have an experienced questioner: "If you do *not* have an NDA in play, can you please at least make it clear that the reason you're not speaking has nothing to do with any NDA?" )

Of course, things very well may have changed in the past 30+ years. Is there now caselaw that says that this sort of muzzle does not violate social policy?

[Ridgeway]

It makes sense in the context of things like M&A deals, where you don't want word that there even are any negotiations leaking out.

[Brett Bellmore]

In the course of my engineering career, I've frequently signed NDAs. Never got my own copy of one, though.

[David Nieporent]

If you sign something — anything — without keeping a copy of it, you are a fool.

[David Nieporent]

I mean, that came out harshly to Brett. I meant it as a general principle. (It is pull-my-hair-out exasperating as an attorney when a client comes to me and admits that they signed something relating to the claim they want to bring, but they have no idea what it said and don't have a copy of it.)

If someone wants you to sign something but won't give you a copy, don't do it. Period. Take a picture with your phone, at least. If they stop you, it's because there's something wrong with the document that they don't want revealed.

[Brett Bellmore]

Look, it's not like I don't get to read my NDAs before signing them. And your average NDA signed during a plant tour is generally pretty brief. You just agree that you're not going to disclose any proprietary information you may encounter.

[Cal Cetín]

"I have ZERO idea which of these 3 applies."

Perhaps there should be some kind of investigation?

[David Nieporent]

Not to be a conspiracy theorist, but it seems to me that given the procedural posture here — a complaint against the judges — the investigation that was actually conducted would not have been of Clanton per se; it would have been of whether the judges did something wrong in hiring her. Which would involve asking "Did the judges reasonably look into it before hiring her?" rather than "Did she do it?"

So I'm not actually clear that this investigation should be seen as an exoneration of her.

[Life of Brian]

Not to be a conspiracy theorist, but

MAN you're going down swinging! LOL

[bevis the lumberjack]

An investigation that concludes that the text was faked by someone who has a habit of faking texts for revenge purposes isn't an exoneration of her? Sure.

[David Nieporent]

What investigation do you think they did to come to that conclusion, other than ask TPUSA about it? It's Charlie Kirk. If Charlie Kirk said that Joe Biden won the 2020 election fairly, I'd have to seriously reconsider whether Trump's arguments might actually be true. I suppose it's possible that someone hired a computer forensics team and they found evidence supporting this forgery thing — but there's nothing to suggest that.

[Michael P]

Do Charlie Kirk and the other conspirators working to clear Pryor and Clinton's names also drink the blood of sacrificed infants?

[Michael P]

*Clanton. My phone really doesn't like her name.

[bevis the lumberjack]

Right, because everything that comes out of the mouth of your opponents is a lie. They’d lie to several federal judges to protect a racist because everyone right of you is a racist.

And of course Thomas and his wife lied about her demeanor during the year that she lived with them because of….hell, I don’t know why. But obviously there’s a reason. Make up something about Thomas self loathing or something.

There’s more evidence that says she didn’t do it than there is that says she did from people who put their names on their testimony, but, yeah anonymous sources are always reliable. Whoever they are.

Sometimes the people you oppose are not Satan, although damned if you can admit that.

[Free Exercise]

The 2nd Circuit Judicial Council unanimously adopted Chief Judge Livingston’s recommendation absolving Judges Pryor & Maze. There’s quite a bit of material there not only about Clanton not sending the e-mails, but the lack of anything remotely similar on her part.

Those continuing to suggest that there must be something to the accusation because she didn’t deny it to their satisfaction appear to be more concerned with defending their prior erroneous conclusions than basic decency.

[David Nieporent]

The 2nd Circuit Judicial Council did not investigate whether the claims about Clanton were true. Neither did Livingston. That wasn't their role.

[David Nieporent]

Right, because everything that comes out of the mouth of your opponents is a lie.

I'm not sure what job you think I have such that Charlie Kirk is my opponent, and I didn't make any generalizations about any group; I singled out Charlie Kirk.

There’s more evidence that says she didn’t do it than there is that says she did from people who put their names on their testimony,

First, there has been no "testimony." There was no proceeding. Second, as far as I can tell, this is the entirety of the evidence that she didn't do it: Charlie Kirk says so.

Thomas provides a character witness, not evidence she didn't do it; he obviously has no personal knowledge. (But speaking of character witnesses, have any other people — former colleagues, college or law school classmates, etc. — come forward and said, "That's crazy; I spent years in school with/working with her and I can't believe she'd ever say anything like that"?)

[Noscitur a sociis]

Rep. Hank Johnson (D-Ga.) told the Journal-Constitution that Chief Judge Livingston's report was "nothing more than a rubber stamp that gives two influential federal judges cover for hiring a law clerk with a reported history of racist conduct."

It's a snow job right up there with that admiral who tried to say Guam wasn't on the verge of capsizing.

[santamonica811]

???
(I get the reference; I'm just not sure of your point.)

[Noscitur a sociis]

My primary point was to trigger a sensible chuckle among those who remember that episode. But to the extent there was something substantive, it was to note that Rep. Johnson long ago forfeited the privilege to have his opinions taken seriously by serious people.

[IamtheBruce]

oh, thaaaaat Rep. Johnson.

[neurodoc]

You thought he might have been talking about that intellectual giant of the Senate, Ron Johnson (R-WI)?

[Commenter_XY]

It was funny, Nas.

[SimonP]

It appears much of this hangs on a TPUSA executive claiming that the texts were fabricated by an identified ex-employee who was putatively fired for fabricating texts about co-workers. Given that TPUSA is a notorious misinformation machine, I am disinclined to give that executive the benefit of the doubt.

It might be fair to say that Pryor did everything he should have done to vet the claims. He’s a judge, not an investigative journalist. But unless someone has contacted the employee who supposedly fabricated the texts, this all smacks of conservatives circling their wagons. (Including this contribution by Eugene.)

[loki13]

"It might be fair to say that Pryor did everything he should have done to vet the claims. He’s a judge, not an investigative journalist. But unless someone has contacted the employee who supposedly fabricated the texts, this all smacks of conservatives circling their wagons. (Including this contribution by Eugene.)"

Ding ding ding. I think the coverage by Kathryn Rubino strikes a more balanced level of skepticism. Including the details of her alleged snapchat correspondence.

Look- if she was wronged or framed, then she should be looking to sue the pants off of someone. But ... this seems really really weird. In addition, we are supposed to take the word of an unnamed Turning Point executive over ... apparently many ex-employees who got together to frame her? And this came out now ... but none of the many many journalists who looked into this could figure it out.

Yeah, no. If someone wanted to say that this was a young person, who did something stupid, and knows better, I'd totally believe that. But some vast conspiracy of conservative TPUSA employees (that we can't name because reasons!) to torpedo the career of this person, and the librul media fell for it, but we can't tell you because reasons ... seems a little difficult to understand.

But I certainly hope that this revelation causes people to dig deeper. You know, kind of like how all that stuff with Judge Kozinski's "joke" server eventually led people to ask more questions. Sunlight is the best disinfectant.

[Brett Bellmore]

Not so vast a conspiracy. Apparently they hired one bad actor, who got into a position where she could hire, and hired some of her friends, and then they started manufacturing evidence of TPUSA being a hive of scum and villainy.

Then they got caught before they could release much of the dirt they'd planted. Perhaps because they tried a test run on Clanton.

Speculating, what then happened was that TPUSA cut them a deal where the whole thing would go away if they refrained from detonating the big bomb, instead of suffering an explosion of bad press just so they could punish the perps.

The NDA was part of making it go away.

[David Nieporent]

I like how Brett has turned a disgruntled employee into a conspiracy.

[SimonP]

In Brett's universe, the only truth is that conservatives/Trump are never wrong. All facts that must be supplied to make this the case will be supplied.

[SimonP]

TPUSA's claim that the text was fabricated by an ex-employee - despite TPUSA never mentioning this when confronted over it four years ago - is so perfectly on-brand for them. Because of course it completely absolves them/Stanton of any culpability whatsoever, and cannot really be falsified by anyone, so it feeds perfectly into the Trumpist martyrdom complex - as we can see it does for Brett. He not only buys the newly-emerged TPUSA account at face value, he finds a way to cast the fabricated text within a larger effort by the libruls to infiltrate and smear TPUSA. So it's even worse than we could have imagined!

[Brett Bellmore]

I take it at face value because I don't think actual racists instantly change their stripes, and this lady literally spent almost a year living with the Thomases, and they vouched for her.

It's a pretty weird racist who'd voluntarily live with an interracial couple, and in a year not give them the slightest hint of her attitude. That's some pretty strong corroboration there, don't you think?

[David Nieporent]

Look- if she was wronged or framed, then she should be looking to sue the pants off of someone.

Pretty sure the SOL is long past. But, yeah, there's no evidence she did anything about it, officially or unofficially.

[Brett Bellmore]

So, "Given that they're guilty, I'm inclined to presume they're guilty."

Well, I suppose that if I took that as a given, I'd be of that mind, too. Since I don't, I'm not.

Since Pryor had testimony from a Supreme court Justice vouching for her character, I don't see any reason he should have been skeptical about the claim the texts were fabricated. In fact, given that, I don't see any reason ANYBODY should be skeptical about the claim. Except for the sort of political reasons that would also lead somebody to conclude that, if TPUSA said it, it must be a lie.

[SimonP]

Who's presuming "guilt"? All that I am saying is that a denial by an unnamed TPUSA executive, placing blame on some employee who was fired for doing the exact thing they are claiming happened in this case, is all too convenient to be believed, coming from a misinformation shop like TPUSA.

Stanton? Looking at the totality of the evidence, I'm inclined to think she made a joke for a narrow audience, a joke that probably made some kind of sense in context, and she's desperate to sweep it under the rug of an otherwise sterling record. The statement itself is too absurdly over-the-top for me to believe it was made seriously.

Pryor? He was aware of the comments and judged Stanton within the totality of the evidence available to him. I myself may have made the same call, if I was looking at a candidate who was great in most respects but had this speck of dirt found on a google search. "What's that all about?" I'd ask. And I'd listen to her response, evaluating accordingly.

Sometimes it might help you to better perceive the arguments of people you're disagreeing with, Brett, if you didn't automatically assume the victim posture.

[Ben_]

The people that decided to hate her still seem to hate her, regardless of the new information. What if she had offered an explanation earlier? It could have been ignored earlier, just like it’s being ignored now.

[rsteinmetz]

The people who don't believe her now would s8mply have believed she was lying and stated the whole cycle over again.

[Bob from Ohio]

"people that decided to hate her still seem to hate her"

Yes. Never apologize, its a sign if weakness.

Once she's a federal judge, they will still hate her.

[Rev. Arthur L. Kirkland]

Judge Livingston's report does not assert -- let alone provide persuasive evidence to support a conclusion that, or claim a reliable investigation was conducted with respect to the issue of whether -- the relevant email was fabricated.

Why not?

Has the clerk denied under oath or been asked to deny under oath whether the relevant email was fabricated -- or provided, or been asked to provide, electronic information that would indicate whether the email was fabricated?

Why not?

The investigation indicates several of the clerk's ideological allies had wonderful things to say about their friend and employee. It does not indicate whether anyone provided information under oath, or pursuant to a subpoena.

So movement conservative Charlie Kirk says someone who worked for him (and likely is still a fellow movement conservative) is not a racist without expressly stating that or how she was framed,

and

a Trump-picked conservative judge or two did the same,

and

a Bush-picked conservative judge who appears to have lacked (or refrained from using) authority to investigate with subpoenas and oaths issued a congruent report,

and

other conservative partisans (David Lat, Eugene Volokh) find all of this credible and resolved.

Carry on, clingers . . . with circling those partisan wagons. Perhaps the legislators operating outside the clingerverse who inquired should consider taking the reins and addressing those "why not" questions.

[bevis the lumberjack]

The relevant email was a text, moron.

But a bigot like you would never accept this type of thing was false.

[Rev. Arthur L. Kirkland]

I sense a likelihood that someone with a desire to conduct a reliable investigation and a stack of subpoenas could illuminate the provenance of a text.

A legitimate investigation should resolve this issue.

And many conservatives seem determined to prevent that.

[neurodoc]

You mean in a way similar to how so many of them have tried to block or derail an investigation of the 1/6/21 attempt to overthrow a the legitimate government of the US? Really, do you think they are endlessly evil rather than just somewhat evil from time to time (Sunday thru Saturday except over Xmas)?

[Free Exercise]

“a Bush-picked conservative judge who appears to have lacked (or refrained from using) authority to investigate with subpoenas and oaths issued a congruent report …”

Not content with smearing a young law student, Kirkland now asserts that Chief Judge Livingston was derelict in her duty to investigate the law clerk hiring. Livingston’s recommendation WAS UNANIMOUSLY AGREED TO BY THE 2ND CIRCUIT JUDICIAL COUNCIL - lots of Democratic appointees there. That would be a pretty big conspiracy, but Kirkland is a pretty big conspiracy-theorist.

[Rev. Arthur L. Kirkland]

The Livingston recommendation expressly disclaimed any investigation or conclusion with respect to the accuracy of the information on which Judge Pryor said he relied.

I hope no legitimate law school get saddled with having you as a graduate.

[kkoshkin]

So, in other words, another false-flag incident of "racism." The demand for racism in this country continues to far outpace supply.

[David Nieporent]

That's not what "false flag" means.

[Michael P]

Yes, he clearly meant hoax. This was another racism hoax, because the demand for racism -- at least in this country -- continues to far outpace the supply.

[Brett Bellmore]

No, this would be more of an "infiltrate and plant" job, than a "false flag" job.

[kkoshkin]

Fair enough. Perhaps I misused "false flag." It's still a lie, a hoax, and a smear. My point remains.

[Lee Moore]

Nieporent : That's not what "false flag" means.

Except that it is. This is a textbook false flag operation. It involves A doing X, while pretending to be B, so that B will be blamed for the X. X in this case being a racist text.

It may also be classified as a hoax, but it's a hoax in the form of a false flag operation. The former employee sent out a fake text in the name of Miss Goody-two-shoes to smear her. The hoax depends entirely on the false flag.

[MonitorsMost]

I don’t feel like the decision is detailed enough to assess credibility one way or another. If I were conducting the investigation, I would want two pieces of evidence to the evidence of forgery. (1) The text messages on Crystal Clayton’s own phone; and (2) the evidence of fake text messages made up by the disgruntled co-worker in the other scenarios.

The only thing beyond that is to note that Kathryn Rubino’s assessment of credibility is garbage. She shows her bias from the start by referring to it as ASSlaw and complaining that a federal court can’t investigate as well as a publication with a strong partisan lean. I appreciate wanting the decision to be more detailed, but her suggestions as to why it can’t be credible are dumb.

[Rev. Arthur L. Kirkland]

" I don’t feel like the decision is detailed enough to assess credibility one way or another. "

David Lat, Prof. Volokh, and a bunch of other right-wingers question your credulity.

Cue the music!

[virginia]

If a member of Congress requests an investigation of something like this, and the investigation fails to turn up evidence of illegal activity, the member should have the full cost of the investigation deducted from his or her salary. No reason the taxpayers should subsidize this kind of garbage.

[ReaderY]

I think the depth of the factual basis behind Katheryn Rubino’s viewpoint can be summed up in her comment “what, the federal judiciary thinks it has better investigative resources than the New Yorker?”

It’s sort of an inverse Poe’s law. It’s hard to believe it’s not a parody.

[neurodoc]

"....if she was truly concerned about getting sued on the NDA, she probably could have gotten word out through surrogates—which might still have left her open to suit, but would have reduced the likelihood of a lawsuit even further)"

Why would TPUSA ever sue for breach of an NDA by a former employee claiming to have been libeled in a most serious professional matter? Would they have a snowball's chance in H*LL of winning even $1 in damages. Utterly unconvincing that a 3L at Scalia headed for glory in the right-wing pantheon of glory would not blow past such a "pause" sign and demand a forensic investigation to prove she didn't text such a message.

Did she go ahead and meet her friend at Starbucks? Have she and he submitted sworn affidavits supporting her story? Did TPUSA finger the supposed malefactor in their midst? Does Cristal have any "priors"?

[David Nieporent]

You're right in your rhetorical question: no, there's not a snowball's chance that TPUSA would sue someone who is a friend of Clarence Thomas over this, even if they had damages which they wouldn't.

I still come back to the threshold question of why there would be an NDA about this in the first place.

[Jimmy the Dane]

Why is it those who framed her are enjoying anonymity?

[neurodoc]

Could it be that no one "framed" her, that is managed to send a text purporting to be authored by her? If such a person (or people) existed, why wouldn't TPUSA done their part in outing them and clearing Clayton's name, especially since the Thomases were so much her advocates? Please explain TPUSA's conduct in this, so I may understand what seems so improbable.

[Brett Bellmore]

Well, let's suppose that most of the media are inclined to believe fake evidence of racism at a conservative organization, even if they're told it's fabricated. And the perp has a lot more of it in the pipeline than we've learned of. If they make a point of nailing the perp to the wall, it all gets dumped.

Maybe they reached an agreement with the perp not to play Global Nuclear Warfare.

[LawTalkingGuy]

So don’t demonstrate the person is a faker because…they’ll release more fake evidence? That doesn’t make any sense at all. If you show someone is untrustworthy then that’ll damage their credibility when they release anything.

(Unless of course it’s all true and they don’t want to identify the person because they are worried the person will release true things that people will discover are true notwithstanding the fact they claim it’s fake)

[Brett Bellmore]

No, it makes perfect sense for the reasons that the recent disbelieving media coverage of this announcement demonstrates: If you smear a conservative, even if they prove it's false, the smear sticks with a lot of people. So if you can avoid the smear being publicized in the first place, it's worth it.

I mean, tell me a huge number of people don't think that Trayvon Martin was murdered, that Michael Brown had his hands up when he was shot, that Sandmann was blocking somebody's path, that Trump insulted our troops in Germany, you name it. “A lie can travel around the world and back again while the truth is lacing up its boots.”

[Rev. Arthur L. Kirkland]

A view from beyond the clingerverse suggests that David Lat, Prof. Volokh, and others have indulged in wishful, premature, partisan thinking that does not seem destined to age well (let alone "very well," as Prof. Volokh tried to depict it) as evidence continues to emerge.

(Judge Pryor may come to regret that shabby, partisan swipe at Jane Mayer, who may not benefit from the deference a conservative federal judge receives in some circles -- and may not need it against the likes of the team in red. I doubt Team Pryor-Clanton-Thomas-Livingston-Kirk will welcome the professional testing it seems destined to receive from the likes of Mayer and Marcus. Clanton likely will keep her job but at the cost of heavy bruising among her defenders. A reliable Congressional investigation seems warranted, if only to explore the current state of judicial self-discipline.)

[Aemon McGarret]

Ruth Marcus at WaPo has a piece on this story. She followed up on the reporting. The defenses of texts & writer put forward keep falling to facts. And professional journalism.

[loki13]

Yeah, the followup journalism is already starting to poke a lot of holes in this story.

...which means, of course, that we'll never hear about it from a VC Conspirator again. Seriously, it would be nice to have just a wee bit of followup, or even some context (such as acknowledging that the 2d DCA did not investigate the claims at all or determine if the information was accurate, but solely looked to see if Pryor committed misconduct in due diligence).

Of course, we are in post-2016 America. No consequences for anyone, just yee-haw let's make sure to circle the wagons.

(FWIW, I think the following statements can be true, and probably are-

1. Judges can hire who they want to.
2. All Pryor had to say was, "I looked into it, and I'm satisfied."
3. Clanton totally wrote those texts, and appeared to have maturity issues ... but this was before she was in law school.)