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Saturday, November 12, 2005

Of Sekulow (and Journalism)

Thanks, Dan, for your earlier post on the Jay Sekulow story, which I think is a must-read and urge everyone to take the time to look at.  Although you note that, as a former journalist and Columbia J-school graduate, I may have some insight into "the difficulties journalists face regarding the coziness of the beats they cover," I'm not sure I have too much to say.  Certainly, as you note, there is a conflict between the need to maintain good source relationships and the desire for expert and experienced beat reporting.  (See Judith Miller, passim.)  And certainly the fact that journalists often and increasingly inhabit something like the same social environment as the people they cover is something we ought to consider when thinking about the press, although I'm not sure it applies to Tony Mauro and Jay Sekulow -- and if it does, so much the worse for Sekulow's claims to inhabit a different world from those of the secular Washington elites. 

Let me add three comments.  First, although I don't doubt Mauro's "courage," I doubt the concerns that led you to praise him are strongly present here: I think Mauro's web of sources is big enough, and that Sekulow inhabits a sufficiently different social world, that those concerns are not great in this case.  Second, remember that one reason people talk to reporters is not just that people (often foolishly) like to talk, as Al Brophy rightly points out in the comments, but also that they are not just talking to that reporter: they are talking to that institution.  I seem to recall a line from the classic book The Boys on the Bus, in which someone observes that people wouldn't be so eager to talk to Johnny Apple if he weren't working for The New York Times.  If you are a member of an elite media outlet, you will garner sources even if you write critical sources.  Although Mauro doesn't work for the Times, there are few Supreme Court reporters and he is a leading figure among them, so he is himself an "institution," and thus somewhat insulated from the effects of writing a critical story.  Third, it seems to me that reporters' "capacity for character and virtue" is not the only thing that encourages them to write critical stories even if it threatens their broader social status or their access to sources, any more than these are the only constraints on lawyers' ethical behavior.  Professional norms and incentives to maintain one's reputation within the guild will also have a significant role to play here.  This does not eliminate your concerns, but it may obviate them at least a little.

Finally, let me emphasize again that the Sekulow story is well worth reading.  (I have a couple of money quotes after the jump.)  I cannot help but link the story in my mind with the Abramoff story.  And in both cases, I want to make clear that what disturbs me is not the possibility that any of this is actionable (as a breach of fiduciary duty, in Sekulow's case) or illegal (as in Abramoff's case).  It is the legal conduct that bothers me.  Money and politics will always go hand in hand, and that does not bother me as such (I generally, if mildly, oppose campaign financing regulations, for instance).  But we can and ought to be disturbed by the amount of sheer self-dealing, connection-trading, and self-enrichment that takes place under the cover of serving the public interest in the political non-profit world.  I don't know whether this story will be merely a blip in Sekulow's world, and I don't want to single him out.  But the story, and others like it, and stories about various revolving doors (for Democrats and Republicans alike, although my impression is these sorts of stories are more prevalent in the Republican world right now, either because of its current political entrenchment or for other reasons I can't specify), simply make me nauseous, and I hope I'm not alone in this.      

Here are two illustrative quotes I found especially telling in the Sekulow story.  The first speaks for itself:

The D.C. town house is one of three residences used by Sekulow that were paid for or subsidized by CASE. Another is a home in Virginia Beach that was bought by CASE for $852,937 in 2001. The third home, in North Carolina, is described on CASE’s IRS filings as a “retreat property.” Sekulow says the houses are not for his family’s exclusive use.

The North Carolina home is itself an interesting study in how Sekulow operates. CASE sold the home to Sekulow’s wife, Pam, in 1997. But CASE loaned her the money to purchase it, according to CASE’s IRS returns. She has not always made payments on the loan, and CASE’s board, of which she is a member, has at times forgiven repayment — an arrangement confirmed by Sekulow. The amount she does not repay is then reported as income to her — $49,266 in 2003 — on which she pays income tax. Sekulow says the loan has now been retired. The Sekulows also own a home in Atlanta.

* * *

The second is Sekulow's own response to some of the charges raised in the article:

Sekulow shrugs off the criticism and makes no apologies. “I wouldn’t pretend to tell you we don’t pay our lawyers well,” including himself, says Sekulow. “As a private lawyer, I could bill $750 an hour, but I don’t.”

This one does deserve comment.  First, if Sekulow could earn that much on the open market, more power to him; but that is a far cry from taking a position in which he purports to do the Lord's work, and in which fund-raising solicitations clearly suggest that donations will help fund the entire enterprise, and who then enriches himself to the tune of what looks like far more than the profits of a $750/hour lawyer in private practice.  Second, don't be misled.  It's not clear Sekulow could earn that much in private practice -- as a litigator.  It is far more likely that he could only earn that much as a lobbyist or a maven (to use Gladwell's term), trading on his alleged influence and on his connections.  And it is, of course, that web of influence and connections that allows people like him to turn the non-profit world into a shadowy cash cow.

Posted by Paul Horwitz on November 12, 2005 at 01:33 PM in Law and Politics | Permalink

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