Randolph Clerks: Too Much Time on Their Hands?
[Ed. note: We now turn the floor over to the fabulous Laurie Lin, of Legal Eagle Wedding Watch, for a guest post on the D.C. Circuit clerk book proposal controversy. This post was originally scheduled for publication yesterday afternoon, when Laurie was holding down the fort while we were offline and in transit. Sadly, technical problems — yeah, we know, we’re working on it — prevented timely publication.]
We know the DC Circuit’s caseload is notoriously light, but we had no idea the clerks were jonesing so hard for something to do! Two current clerks in Judge A. Raymond Randolph’s chambers recently circulated a book proposal on habeas corpus and the war on terror, a topic about which they claimed to have some expertise — as a result of the high-profile cases to which they currently have access in Randolph’s chambers! Read on for more about this ethical morass:
The problems arose when their proposal, which was emailed to constitutional scholars across the country, surfaced on a blog. University of Miami professor Steve Vladeck raised questions about how this affected their work as clerks for a Judge A. Raymond Randolph. Randolph, of course, not only authored the most recent decision about the Guantanamo detainees, Boumediene v. Bush, but was also the scribe for two cases already overturned by the Supreme Court, Rasul v. Bush and Hamdan v. Rumsfeld.It was a connection the two clerks flaunted, noting that they brought a “unique perspective” to edit submissions because “they have spent a year in the legal trenches” as clerks on the D.C. Circuit “during a year that saw several landmark detention decisions likely to end up before the Supreme Court.”
But the two men forgot one key thing: to tell (or, rather, to ask permission from) their judge.
Whoops.
More on this controversy, including Judge Randolph’s official reaction to his clerks’ jaw-droppingly poor judgment, after the jump:
The men referred comments to Randolph who said in an interview, “They messed up and I have instructed them to withdraw it.”Asked whether he thought the proposal created a conflict of interest, Randolph replied, “The most I’ll say is maybe there is a technical way to defend it, but it doesn’t comport to my standards.”
We’re guessing Randolph may have had stronger words for his clerks in the privacy of chambers.
We love these guys for being self-starters, but seriously — at least wait until after the clerkship to cash in with a dishy book.
Just to be clear: The clerks’ proposal was for a volume of essays that they would edit; apparently they did not actually plan to write the substance of the book themselves. We’re not sure that changes the analysis, though; it sounds like they still should have run the plan by Judge Randolph.
Bonus: One of the chastened clerks has a moderately slick personal website that highlights his passion for national security — and all-male a cappella singing!
(59) Comments
Comments
What morons!!
God, it's really true -- there's difference between book smarts and good-old-fashioned common sense!
"After a respite of two years, Derek helped start a new a cappella group at the law school named Six Angry Men."
An ... a cappella group?
Petition denied. No COA.
I looked at the "moderately slick" website of one of said clerks. Apparently, Yuen Foong Khong gives the clerk's currently published book, Two Thumbs Up!
How about a DC-CA list of shame already?
What a clown. Is it really a publication if you write it and then post on your own website?
I think Derek (clerk with "slick" website) is seriously cute!!
I'm a sucker for any book with a giant mushroom cloud on the cover.
i can't make up my mind which would be worse: they knew it was a violation of the ethics rules and just hoped no one would find out or they genuinely thought shopping around a book proposal touting their experience working on these cases would be perfectly acceptable.
I'm not sure there's such a big deal here - they were touting a *credential* that could be used to sell their book. Since, as Laurie says, they were going to be editing the book, not writing it, it's not clear that they were planning on using their inside information at all.
Plus, how much inside information did they have? Conversations with their judge is the only bit - the rest (filings, opinions, etc.) are all matters of public record.
Perhaps they should have, as a matter of courtesy and being overcautious, asked the judge first. But I don't think there's an ethics violation here.
These two guys are pretty lame. And that website -- geez! Someone needs to tame that ego.
Are they going to resign?
Check out this deep analysis from Derek Smith's book on "Deterring America," contained on his self-promo website:
"[I]n an era of mass globalization, enabling a few individuals to kill thousands and potentially millions, the containment 'box' is becoming more porous than ever - hardly a sturdy barrier against creeping regional threats and terrorism. Unfortunately, security interests no longer end at one's border, for the dangers can come from all directions at any time, and the harm caused can be virtually irreparable."
Nothwithstanding that I'm having trouble figuring out what "mass globalization" means, I'm paining to find some original thought.
I've seen the email Derrick sent (it was forwarded to a listserve). It wasn't even a "book proposal"; it was an email to a couple professors to see if they were interested in contributing to a book the two guys would edit after their clerkships (the D.C. Circuit only sits through May, so they're probably almost finished). One of those professors sent it out to a listserve, and that's how it became a "story." Notice that they weren't even going to write anything, but rather were hoping to edit essays from law professors. They're sure getting a bum rap.
In the terrorism cases, not everything is in the public record. Some (many?) things are sealed.
I heard Randolph wasn't pleased but is already over it bc, in the end, it's not *that* big of a deal. Sorry to disappoint, but no resignations to come. You'll have to get your controversy elsewhere; "book proposal gone bad" just doesn't cut it these days.
I agree with I dunno. Silly of them not to have asked the judge, but no sign that they had any intention of revealing confidential information or profiting from their knowledge--just using their legal credentials to market their product. As did, at some point in their lives, the professors who were so terribly "disturbed" by this book proposal.
I think this was a goofy thing for them to have done--it would have been easy for them to ask the judge or just wait until they were off the court. But not an actual ethical lapse.
If they weren't going to do it until after their clerkships, then what's the big deal? There's no conflict then, maybe it was a misjudgment to send out the email now, but whatever.
This is a non-story. Look elsewhere for the next ridiculous witch hunt.
Derek Smith is a huge douche. End of story.
1:59, 2:19, 2:20, 2:21, 2:26, and 2:31 must be Smith and Evanson and their moms.
2:34 is probably one of their co-clerks.
Derek Smith is actually one of the nicest guys you'll meet.
bad judgment, fellas
Clearly, friends of the clerks have hijacked this board in their support -- I see no other reason why a disinterested party would defend the clerks (or try to diffuse the story) so vigorously if that weren't the case.
The original post didn't make it clear that they would do this after they completed the clerkship. Regardless, trying to capitalize on their current government job to score a book deal is improper. For one, they're public servants, and there are limits on using your position as a public servant for personal profit.
Otherwise, a few people have commented that the clerks would be editors of the essays, not the writers. That's not really relevant. (1) You can still heavily influence the book as editors by selecting which essays to include. (2) More importantly, their financial interest in a book dealing with a topic their judge rules on has the potential to influence their decisionmaking *as clerks.* If the book is pushing a certain opinion, and they stand to make money off of that book, might that influence the work they do as clerks? That appearance of impropriety is a real problem.
Ms. Lin got it right.
2:34 is Judge Randolph.
NYC to 190!!!!
i went to school with derek smith and he was, 2:34 articulated, a complete douche.
yes, they prob should have waited another month until they finished their clerkships to circulate this. yawn. next story please.
Comment removed by moderator.
2:34 here. Nope, I'm not Randolph or a fellow clerk on the DC Circuit. I just had the pleasure of going to school with Derek. Didn't know him too well (was a class above him), but from all I heard and observed I stand by my earlier "douche" assessment.
Are there even any more terrorism cases before the D.C. Circuit? I thought they already ruled on them?
Currently pending are questions on exhaustion requirements under the Detainee Treatment Act. So yes, the cases (Al-Odah and Boudemiene) are very much still before the D.C. Cir. with Randolph on the assigned panel.
As a current law clerk, I cannot imagine shopping a book proposal during my clerkship that was even tangentially related to anything I'd laid eyes on, even informally, during my clerkship.
And I can't imagine, even after my clerkship, shopping a book proposal, even with me in just an editing role, relating in any way to any case my judge worked on without taking the full idea to my judge first and getting an okay.
These guys may be nice, but if I were their judge I would be livid. I ask my judge's permission before I even attend a talk that could relate to something my judge has rule on during the year. My judge has never told me to do this, but I think it's common sense for clerks -- respect the privileges of the opportunity you've been given. Everything you do could reflect back on your judge.
Maybe this book idea could fly post-clerkship, but even that is a maybe and would require talking to your former boss first.
Talk about a tempest in a teapot. No ethical violation here. Clearly some of these posters have too much time on their hands. Get a life already. Douche? What a great vocabulary this person has. I would love to see the accomplishments of some of these posters. For all his accomplishments, Derek Smith is unbelievably down-to-earth and genuinely a nice guy. (And cute to boot). Jealous?
Talk about a tempest in a teapot. No ethical violation here. Clearly some of these posters have too much time on their hands. Get a life already. Douche? What a great vocabulary this person has. I would love to see the accomplishments of some of these posters. For all his accomplishments, Derek Smith is unbelievably down-to-earth and genuinely a nice guy. (And cute to boot). Jealous?
2:34, if you're going to stand by your assessment, why don't you identify yourself?
Talk about a tempest in a teapot. No ethical violation here. Clearly some of these posters have too much time on their hands. Get a life already. Douche? What a great vocabulary this person has. I would love to see the accomplishments of some of these posters. For all his accomplishments, Derek Smith is unbelievably down-to-earth and genuinely a nice guy. (And cute to boot). Jealous?
Look, they should have asked the judge. If all they were doing was sending emails to a couple professors and didn't plan to work on anything until after the clerkship, maybe it's much ado about little. But they should have asked the judge.
What's troubling is the unnecessary ad hominem attacks.
That Blaine guy is a cutie too...
http://sophie.byu.edu/project/student_images/evanson.jpg
Blaine's married, and has 2 kids. Sorry ladies.
Their proposal was unseemly, but enough is enough. The number of people out there waiting with knives sharpened (for Derek in particular) is alarming. Let's all move on.
I will gladly identify myself as soon as the pro-Derek trolls identify themselves. To be honest, though, I agree with the general sentiment that it doesn't really matter if he's a "douche" or a "genuinely nice guy." But what I don't understand is how people can excuse this behavior or even really defend it. Derek's "douchiness" or "niceness" shouldn't detract from the real point here: he's acts like a shameless gunner without regard for common-sense ethical considerations.
Whether he's a wolf in sheep's clothing or a wolf in douche-y clothing still means he's a wolf.*
*(And yes, I have an extremely limited vocabulary. For some reason, the word "douche" is the only thing that comes to mind here. Sorry.)
As a current federal clerk, I don't understand why this is a big deal to those of us who aren't in that chambers. These folks breached spoken and unspoken rules of etiquette for current judicial clerks; they should have known better; I have no doubt that their judge has verbally disciplined them concerning their poor judgment. I don't envy them; the remainder of their clerkship will doubtless be rough.
I would not market myself as they did during my clerkship or post-clerkship without the explicit knowledge and permission of my judge (and I would be somewhat surprised if it was forthcoming). I am quite certain that to do otherwise would be to do my relationship with my judge no favors. I'm surprised that these men felt, or prioritized, differently - but I don't understand why the vitriol against them. Leave that to the other members of their chambers, if anyone.
Apart from the "douche" comments, which are admittedly immature, what exactly has constituted "vitriol"?? Seems like there are some people here who think these guys are nice and deserve a pass and some people who think this was a rather unwise move no matter how nice these guys are.
I have seen many comments suggesting that once these guys clerkship is over they can just devulge any private conversations they have had with the judge about these matters.
That is not the case. I think many former clerks (like myself) would tell you that they would never devulge private conversations they have had with their judge--even after the clerkship is over.
Maybe there is no formal ethical rule covering this situation but I think most former clerks understand that is the case.
I have seen many comments suggesting that once these guys clerkship is over they can just devulge any private conversations they have had with the judge about these matters.
That is not the case. I think many former clerks (like myself) would tell you that they would never devulge private conversations they have had with their judge--even after the clerkship is over.
Maybe there is no formal ethical rule covering this situation, but I think most former clerks understand that is the case.
"I think many former clerks (like myself) would tell you that they would never devulge private conversations they have had with their judge--even after the clerkship is over."
Current clerk (6:04 PM) here - in total agreement. In my opinion, it goes without saying that any conversations with one's judge about how cases should be resolved (or background discussions involving the judge's views on a relevant subject matter - e.g. habeas corpus) should NEVER be disclosed, and most particularly not to the general public. There is an atmosphere of trust in chambers that such open disclosures would violate.
http://64.233.167.104/search?q=cache:ay5PIoDawqkJ:www.fjc.gov/public/pdf.nsf/lookup/Ethics01.pdf/%24file/Ethics01.pdf/377+rules+of+ethics+federal+clerks&hl=en&ct=clnk&cd=1&gl=us
I'm oretty sure there's all kinds of language in here that says "Go to your judge first" on this type of activity, which means the proposal could have been an ethical violation.
That doesn't mean these guys are bad guys, just that they had written ethical rules they could have consulted.
The code of conduct from my court:
http://www.ca7.uscourts.gov/HR/HRorient/codeconduct.htm
Some excerpts:
A judicial employee should not lend the prestige of th office to advance or to appear to advance the private interests of others. A judicial employee should not use public office for private gain.
A judicial employee should refrain from outside financial and business dealings that tend to detract from the dignity of the court, interfere with the proper performance of official duties, exploit the position, or associate the judicial employee in a substantial financial manner with lawyers or other persons likely to come before the judicial employee or the court or office the judicial employee serves, provided, however, that court reporters are not prohibited from providing reporting services for compensation to the extent permitted by statute and by the court. A member of a judge's personal staff should consult with the appointing judge concerning any financial and business activities that might reasonably be interpreted as violating this code and should refrain from any activities that fail to conform to the foregoing standards or that the judge concludes may otherwise give rise to an appearance of impropriety.
During judicial employment, a law clerk or staff attorney may seek and obtain employment to commence after the completion of the judicial employment. However, the law clerk or staff attorney should first consult with the appointing authority and observe any restrictions imposed by the appointing authority.
Okay, but I think everyone should remember that for most federal clerks (at least most of the ones I know), one of the major incentives for clerking is the "prestige of the office."
Otherwise federal clerks would be pulling in biglaw paychecks and on here whining about California to 160 or NY to 190 like the rest of us.
6:18, 6:28: There is nowhere any allegation that these guys did or ever planned to divulge private conversations. That's not the issue. The issue is whether one can tout one's credential as a court of appeals clerk (here, of a particular circuit). They didn't claim to have worked on the cases, or even to have clerked for Judge Randolph.
"They didn't claim ... to have clerked for Judge Randolph."
it's on his website in his bio.
Look, these clerkships aren't just another notch in the belt of accomplishment. They are SUPPOSED to be jobs where you help out your judge for a year in providing NEUTRAL and FAIR JUSTICE.
You are working in the public interest for that year as a clerk. You are serving your country. It's not just another flashy badge like the Harvard and Yale diplomas. It's supposed to have a meaning beyond that.
If Judge Randolph is an article III Britney, these dudes are Kevin Federline. Just out to get paid and look flossy on the resume!
he's absolutely ADORABLE!
does anyone know if derek is attached? boyfriend? girlfriend? married?
Sorry, 10:37 - he's absolutely an assclown.
Perhaps a talented assclown, but an assclown nonetheless.
Sure, they screwed up. But, gotta say, only a douche post insults anonymously. Have some integrity.
Tom Sylvester is an assclown.
Benjamin Dover is SOOOOO CUTE!
Blaine is way cuter than Derek.
Sorry, all you posters twisting yourselves into pretzels to defend these guys - they are dead wrong.
Even if they had no intention of divulging anything, they sure wanted people to think that in ONE year they gained this massive expertise to label themsleves uniquely qualified to "moderate" the debate. Please. One year and they are now experts. If they weren't going to USE what they learned then what were they going to do?
This is where it starts. This is how you end up with Attorneys General who blithely ignore ethics and laws and think nothing of it. I would never trust these guys. They've shown what they are. Greedy and clueless. Hire them at your peril. No matter the pedigree, not everyone is cut out to be a lawyer.