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Thursday, July 19, 2007

Do the views of a tangential client who represented 0.5% of Fred Thompson's law practice over two years more than a decade and a half ago disqualify him from the Presidency?

I've been "of counsel" to a couple of law firms, and a partner in a couple of other much larger ones. I've never been a single-issue voter. 

But presumably, some theoretical slice of the potential electorate, large or small, is considering whether to disqualify Fred Thompson from their presidential consideration based on lobbying work he apparently did for an abortion rights group in 1991-1992 while he was "of counsel" to a Washington, D.C. law firm.

If you're trying to assess the relative importance of that three hours of active "lobbying," plus another seventeen or so hours of other consultation during a two-year period — work likely amounting to something like 0.075% and of 0.425% respectively of Thompson's total law practice over that two-year period fifteen years ago — then I'd like to share some of my perspectives.

As hills of beans go, this is a very, very short stack.


First, in thorough and long-winded Beldar style, the background. This story has been bouncing around the mainstream media and the blogosphere intermittently this month, with about half of the furor centering on whether and when Fred Thompson could have acted a part in a cowboy movie.

On July 7, the Los Angeles Times breathlessly reported that Judith DeSarno, then the Executive Director of the National Family Planning and Reproductive Health Association, reported having hired Thompson as a lobbyist in 1991, during the Bush-41 Administration, to advise and represent it in connection with the possible withdrawl or relaxation of a so-called "gag rule" that barred abortion counseling at clinics that received federal money. The LAT published a two-page .pdf file, the second page of which (italics mine) summarized Ms. DeSarno's as having told an NFPRHA board of directors meeting on September 14, 1991, that

Congress was continuing to move forward on legislation affecting the gag rule. The Senate had approved the Labor/HHS appropriations bill by a vote of 78 to 22 but with a parental notification for minors abortion amendment that was very troubling. The bill would now move to a House/Senate conference committee. Judy reported that the Association had hired Fred Thompson, Esq., as counsel to aid us in discussions with the Administration. Negotiations are in progress between Senator Chafee and the White House to try and reach a compromise on the HHS regulations. NFPRHA has played an active, if behind the scenes, part in the negotiations along with PPFA.

She noted that because of the gag rule she had concentrated most of her time on governmental relations. However, since the last board meeting, she [also did some other stuff, including yada yada] ....

I mean no disrespect to Ms. DeSarno in noting that during quarterly board meetings of the sort being reported here, paid executive staff for interest groups like this one are doing their dead-level best to, among other things, justify their salaries and their existence to the board members who hire and theoretically supervise them. In a Washington board meeting of a Washington-based national abortion rights lobbying group, then, it's entirely unsurprising to see that Ms. DeSarno, the group's executive director, claimed to have spent "most of her time on governmental relations" during the preceding calendar quarter.  But let us not therefore jump to the conclusion that she spent most of the preceding calendar quarter, or much of it, or more than a tiny, tiny fraction of it, in consultations with Fred Thompson, Esq.

Rather, this one-sentence reference in these minutes was most likely present as part of the predicate paperwork necessary for the association to eventually cut Thompson's firm, Arent Fox, a check for its fees in due course. Executive directors who report, "I spent the last calendar quarter with not a damn soul on Capitol Hill bothering to return my phone calls, and I couldn't even figure out what staffers had responsibility for the language in the new appropriations bill dealing with the gag rule," don't generate warm fuzzies for their constituencies, and neither are they likely to get salary or expense account increases. So it's also reasonable to infer that Ms. DeSarno — among the champions of a liberal cause during a conservative presidential administration — was reporting to her similarly liberal board members and fellow staffers about what were, in effect, outreach efforts to negotiate with their natural enemies.

To do that, she didn't need a true believer or even a convert. Oh, no! She instead needed a conservative pro-life Republican — one who could tell her about other conservative pro-life Republicans. She didn't need someone who would make outright converts on the Hill on the Association's; that simply wasn't doable, not by anyone. She needed someone who help get her names, phone numbers, and some background information — and who maybe, if she were lucky, could help get a few of her phone calls returned by people connected with the conservative pro-life Republican administration then in power.

I mean, hell, NFPRHA could get free advice and favors and introductions from pro-choice Democratic lawyers by the handfuls. They'd do backflips for NFPRHA simply in exchange for an additional line on their résumés when they made their applications to the next Democratic administration, whenever that was going to come around. So why would NFPRHA agree to pay out good money (that might otherwise go to, I dunno, say, executive staff salaries or bonuses or expenses) to hire someone who already agreed with them?

I therefore start off being pretty skeptical about the idea that NFPRHA hiring Thompson even indirectly supports an inference that he supported their goals.


Nevertheless, the story's latest resurrection comes from a report in today's NYT:

Billing records show that former Senator Fred Thompson spent nearly 20 hours working as a lobbyist on behalf of a group seeking to ease restrictive federal rules on abortion counseling in the 1990s, even though he recently said he did not recall doing any work for the organization.

According to records from Arent Fox, the law firm based in Washington where Mr. Thompson worked part-time from 1991 to 1994, he charged the organization, the National Family Planning and Reproductive Health Association, about $5,000 for work he did in 1991 and 1992. The records show that Mr. Thompson, a probable Republican candidate for president in 2008, spent much of that time in telephone conferences with the president of the group, and on three occasions he reported lobbying administration officials on its behalf....

The billing records from Arent Fox show that Mr. Thompson, who charged about $250 an hour, spoke 22 times with Judith DeSarno, who was then president of the family planning group. In addition, he lobbied “administration officials” for a total of 3.3 hours, the records show, although they do not specify which officials he met with or what was said.

So what should we make of this? The first question probably ought to be: How significant a part of Thompson's legal practice was this engagement?

Well, that's just a matter of doing the math. Most full-time lawyers shoot for 2000 recordable hours (not all of which may be "billable") every year (representing 50 weeks at 40 hours per). If so, then over two years of Thompson's practice in 1991 and 1992, the three hours of actual lobbying amounted to 0.075% of his practice (3/4000 = 0.00075). It might well take three hours of phone inquiries simply to find out who was actually "carrying the ball" on the respective House and Senate committee staffs and within the key Congressional leaders' offices, simply so that he could point Ms. DeSarno in the right direction — because it was she, after all, who was spending "most of her time" lobbying for this organization.

And recall, too, that in politics, the Association's natural enemies among conservative lawmakers would nevertheless want to know who was whom at the Association, and what they had planned, and what their liberal allies on the Democratic side of the aisle had planned. The only way you get information is by trading information. So in the nature of things, some of the time Thompson spent in active lobbying was probably actually being helpful to conservative pro-life Republicans, even though NFPRHA was paying him by the hour. That's just the nature of the beast.

Remember also that at this time, Thompson wasn't a former senator yet, nor a very likely prospective one. He was another lawyer, one who'd had important staff positions at important moments in Congressional history (e.g., during Watergate, when his questions triggered the revelation of the secret White House taping system that brought down the Nixon presidency), and who'd been in a handful of movies and TV shows. But most of his actual law practice was still back in Tennessee, and it wasn't related to lobbying at all. Nevertheless, his inside the Beltway history would mean that he had useful context and information to share with someone like Ms. DeSarno, whose own natural contacts didn't include the conservative Republican side. And as someone with more information than clout, it makes perfect sense that the vast majority of the time Thompson billed to this matter was not for lobbying, but for other consultation — most likely meaning, here, client education.

But even those hours of non-lobbying consultation — let's round them up to 17 — still would have constituted only 0.425% of Thompson's career efforts during those two years. So what's the one thing we can conclude with near certainty from the NYT story and the newly found billing records? The twenty-hour total altogether was likely no more than one-half of one percent (0.5%) of Thompson's total legal work over 1991-1992.

Quantum physics, rocket science, and difficult related mathematical computations (like fractions) being beyond the ken of the average NYT reporter or editor, this percentage figure is missing from the NYT story.


So how much, if anything, does that half of one percent tell us about Thompson's own views on the National Family Planning and Reproductive Health Association? Can we draw any inferences at all, from the fact that he did this work, that he was sympathetic with their goals?

And the answer to that is: No, it would be highly unfair and misleading to try to draw that inference.

Let's start with the proposition that in general, it's unreasonable and unfair to impute to a lawyer the beliefs or attributes of his clients. Sen. Thompson made this point well in an op-ed he published via PowerLine, and I've also chipped in to make the same point at my usual ponderous length and with a personal war story recently.

Some pundits have suggested that that rationale is less persuasive with respect to lobbying clients than with respect to regular clients, but they've got it exactly backwards. When a lawyer undertakes to represent a party in court, he incurs certain ethical obligations to the tribunal as part of that representation. He may not knowingly, for example, put his client (or any other witness) on the stand to adduce testimony that he knows to be perjured. Similarly, a lawyer arguing in court (or in court papers) may not make an assertion of fact without having a good-faith basis to believe that there's a factual underpinning for it, and he may not misstate the existing status of the law in an attempt to mislead the tribunal.

But if Fred Thompson "lobbied" some Capitol Hill staffer to return a phone call from Judy DeSarno at the NFPRHA, that doesn't include any express or implied endorsement, nor any vetting, of anything that Ms. DeSarno might claim or say. And in Washington, D.C. — where even people who aren't obviously identified as selling a viewpoint of a political interest group are conclusively presumed, until otherwise proven beyond a reasonable doubt, to be peddling some idea for somebody, an introduction, or even a summarization of someone's (decidedly unsworn) talking points, is just about the farthest thing in the world from a binding personal endorsement.


Some pundits will nevertheless sputter: But surely the fact that Thompson would align himself with this sort of client, even for purposes of transmitting viewpoints he disagrees with, says something important about him and his lack of principles! But that's also a bogus argument that flies in the face of both theory and the reality on the ground.

As for the theoretical:

Someone thoroughly versed in our system of government, someone thoroughly committed to the Rule of Law and the marketplace of ideas, would have no hesitation in introducing, and then facilitating discussions between, someone whose goals and beliefs he absolutely rejects (on the one hand), and someone whose goals and beliefs he absolutely shares (on the other).

The public image of lobbyists as handing out favors and bags of ill-concealed bribes is odious and hard to combat; but the practical reality is that without some level of civil discussion between sharply opposing interest groups, no compromises would ever be possible, and neither side could ever win in whole or part on anything because the entire system would grind to a halt. Facilitating that dialog — and helping each side understand who the players are on the other side, what their hot-buttons are, what their core values are, and where there is and is not potential ground for compromise — isn't a "sell-out" of either side's position, and instead renders both sides a genuine service.

As for the reality on the ground, can we conclude at least that Thompson was willing to get "in bed" with the abortion rights crowd, at least briefly, based on this engagement?

I don't think so. If Thompson wanted to have an office in Washington, he was going to have to display some flexibility. Being inflexible would have made him essentially worthless to anyone in that town, including not only existing major law firms but himself.

According to an American Spectator article, during 1991-1992,

Thompson, was "of counsel" at the Arent Fox law firm in Washington, D.C. (meaning he was not a partner, but was provided an office for his use, in part because Thompson's own practice was based in Nashville, TN), and was used by the firm's partners as a "draw" for clients and potential clients, according to a source at the firm familiar with the arrangements with Thompson and others with the "of counsel" designation.

"You'd get partners walking people into Thompson's office all the time, none of whom had any business dealings with Thompson, because he wasn't a partner with the firm," says the firm source. "But having Thompson there during a Republican administration helped with business."

Arent Fox is a well-known, heavily Democrat firm with strong ties to the Clinton administration.

The only part of this quote I'm at all skeptical of is whether it's fair to tag Arent Fox as "heavily Democrat." It may well be, but that's actually beside the point. I remember interviewing with Arent Fox when I was a law student at Texas Law School in the fall of 1978 because I was considering spending a summer in D.C. and it was one of the D.C.-based firms large and powerful enough to recruit nationally from schools like UT-Law. The partner who came down to recruit stressed their substantive law practice (mostly in antitrust, if I recall correctly), but also was frank about their lobbying. He told me, in effect, that part of what they and other Washington powerhouse firms offered was the certainty that year-in, year-out — and regardless of whether a Democratic or Republican administration was currently in power — someone at their firm would know someone on the Hill or at the White House who would have something to do with just about any issue then being debated in the federal government.

That's the context which explains this comment, from today's NYT story:

The family planning association became a client of Arent Fox through Michael Barnes, a former Democratic congressman who was then a partner at the firm. The firm’s current chairman, Marc Fleischaker, said, "Regardless of whatever the political ramifications are, Fred was being a good colleague by helping out one of the firm’s partners."

That's a polite way of saying, "You're no damned good to us or yourself if you are only willing to represent the people who are already your friends, and you're also no damned good to us or yourself if you're unwilling to even talk to your friends when the firm's busy representing their political enemies."

So why the reference by Mr. Fleischaker to former Democratic congressman Barnes? Because it's a crucial fact in assessing Thompson's responsibility — or the lack thereof — for this particular engagement. Being "of counsel" meant that Thompson — despite his seniority and prior experience in Washington, which is what made him valuable to the firm — was nothing more than an at-will employee at Arent Fox. He didn't own a piece of the firm; he didn't get a slice of the pie at year-end when the profits were divided; and he had no role whatsoever in any firm management decisions. Obviously, Barnes was the partner-rainmaker who brought the Association in as a client — not Thompson. Barnes was presumably in the NFPRHA's corner any time. And it would have been Barnes' role — not Thompson's, nor any other non-partner's role — to have said, either, "No, our firm is not going to take on this client," or "Nope, this may be a regular client but we're not going to take on this particular matter for them." Any associate or "of counsel" who regularly refused to assist in representing clients whom the partners (like ex-Democratic congressman Barnes) brought in would quickly find themselves unemployed and, in Washington, unemployable.

Indeed — and this will cause mutterings, I know, from those of you who believe that all legal fees are shocking and outrageous — but Thompson's $250 billing rate as reported by the NYT would have been very, very modest compared to rates of major D.C. law firm partners back in 1991-1992. Barnes' or any other partner's time would probably have cost the Association at least twice as much. At a firm like Arent Fox, it might have been quite important to the firm overall to maintain a stable of clients like the NFPRHA — simply because access to, and knowledge about, special interest groups is the flip side of access to, and knowledge about, people in government. But this particular engagement, generating a mere $5k in revenues over two years, would have been at best a footnote to a line entry at the bottom of an appendix to an addendum in a supplementary table contained in an index of the firm's finances, if that. "Drop in the bucket" would seriously overstate the financial importance of this kind of engagement, in and of itself. Much less would the revenues from this engagement get Fred a bonus or a corner office; it would kinda sorta help pay the cost of the electricity he used and the floor space his (likely temporary) office in Washington took up.


To the very, very limited extent that there's actually a "story" here, in my judgment it relates solely to whether the Thompson proto-campaign was slow-footed or lacked candor in reacting to this. As my blogospheric friend Patterico notes, the appearance now of the billing records directly contradicts something that the LAT reported from the campaign earlier this month:

Thompson spokesman Mark Corallo adamantly denied that Thompson worked for the family planning group. "Fred Thompson did not lobby for this group, period," he said in an e-mail.

In a telephone interview, he added: "There's no documents to prove it, there's no billing records, and Thompson says he has no recollection of it, says it didn't happen." In a separate interview, John H. Sununu, the White House official whom the family planning group wanted to contact, said he had no memory of the lobbying and doubted it took place.

But Patterico and others have, from time to time, found occasions in which the LAT has been, shall we say, less than scrupulous in matching up its purported quotes with their fair contexts. When Corallo spoke, he may have been under the genuine impression that no billing records existed, perhaps after making inquiry. Or perhaps he said, or meant to say, or should have said, in the follow-up telephone interview (a notorious source of misquotes and context slippage) that he hadn't yet been shown any bills (which NFPRHA presumably would have had, just like their meeting minutes) or billing records to that point.

If it was indeed White House Chief of Staff Sununu (now famous mostly as the misguided mouthpiece through which Warren Rudman inflicted David Souter on Bush-41 as a SCOTUS nominee) who was the focus of discussions when Corallo made the purported quotes, then in that context, there may still be no conflict today, even after the billing records have appeared, because they certainly don't seem to support any suggestion of active lobbying at anything remotely approaching that high a level. What struck Fred as "lobbying" when he was filling out billing records (if he's who filled them out, which is also just a guess) may be different, in other words, from what Corallo thought he was being asked about or intended to be speaking about a decade and a half later on the phone with the LAT.

However, even if we assume that the LAT was absolutely fair and scrupulous — and truthfully, I don't know of a single damned reason why we should so assume, but let's do so anyway, for purposes of argument — I tend to agree with Ed Morrissey and John Hinderaker that the appearance of the billing records and the NYT's new story is still much ado about nothing much more than a possible mistake or loose misstatement by an ill-informed or insufficiently careful campaign spokeman.

Bluntly: The notion that Fred himself has been engaged in some sort of cover-up or duplicity here is an absolute non-starter — even if you're among the small segment of the population who believes that his half-a-percent one-off representation of this abortion rights group a decade and a half ago somehow affects his current fitness to be President. [UPDATE (Thu Jul 19 @ 11:55am): I'm sorry to see James Joyner among those who seem awfully quick to claim that Thompson himself has told a deliberate "lie," and with due respect, I don't think he's made out a basis for that claim.)]

I'm not sure this hill is even one bean tall. Actually, I tend to doubt it.


UPDATE (Thu Jul 19 @ 1:15pm): From my continuing civil discussion with Dr. Joyner in his comments, this from me there:

"Lying" is a very, very serious accusation.

Yet you're making guesses based on press summaries of documents we haven't seen, based on NYT reporting about them (and we all know the NYT never makes mistakes?), and comparisons of those against a mish-mash of written and oral statements by the candidate and others in a variety of settings and contexts (again, assuming scrupulous and thorough reporting).

Even the records themselves don't necessarily provide conclusive answers. I don't hold law firm billing records in quite the same regard that I do gospel, because I know just how often they're screwed up, or compiled second-hand by a secretary or a paralegal making guesses from inconclusive source documents (rather than reflecting personal knowledge).

Some of the terminology here is also incredibly slippery. If the context of Corallo's follow-up phone call with the LAT, for example, was about "lobbying" Sununu or other top officials, then that's something that might well have been categorically denied, truthfully and in good faith, and after checking with the candidate and doing some due diligence.

And yet that might have happened without anyone ever wondering, "Hmm, did perhaps a phone call ever get made to the second assistant junior staffer to find out if the conference committee had transmitted back to the Senate subcommittee the minority report on the supplemental HHS appropriations bill as amended?" Yet exactly that sort of phone call might have ended up as a 0.1 hour entry in Thompson's scribbled work records as "TC lobbying."

This whole episode makes me strongly suspect people are talking past each other. I want to see the records, but producing them may involve privilege issues on which NFPRHA's cooperation might be needed, and they may have reasons to be horsey about that.

Posted by Beldar at 10:26 AM in 2008 Election, Law (2007), Mainstream Media, Politics (2007) | Permalink


Other weblog posts, if any, whose authors have linked to Do the views of a tangential client who represented 0.5% of Fred Thompson's law practice over two years more than a decade and a half ago disqualify him from the Presidency? and sent a trackback ping are listed here:

» Fred Thompsons Lobbying and Credibility, Redux from Outside The Beltway | OTB

Tracked on Jul 19, 2007 2:32:11 PM


(1) Jebster made the following comment | Jul 19, 2007 3:12:06 PM | Permalink

I guess there some really damaging questionis that we could be asking about ALL the socialist presidential candidates.

(2) Jebster made the following comment | Jul 19, 2007 6:13:45 PM | Permalink

Ah, yes, thank you for reminding me. I would also throw in there, liar, pervert, and sissy-boy...

(3) Socialist made the following comment | Jul 19, 2007 6:17:21 PM | Permalink

Hey, i don't like the way this conversation is going. There is nothing wrong with socialism. We all get a free ride off the government while living in our parents basements. what's so wrong with that?

(4) DRJ made the following comment | Jul 19, 2007 11:53:18 PM | Permalink

This is interesting, especially regarding Thompson's inability to choose clients in his "of counsel" role and the possibility that the NFPRHA might want input from a conservative source. I also wonder if Thompson's ability to respond is hampered by attorney-client privilege.

My gut tells me that Thompson's spokesman was just over-zealous when he categorically denied this happened, but it looks bad anyway. It's time for Thompson to work out the kinks in how his fast-response team responds.

(5) Brad S made the following comment | Jul 20, 2007 7:13:23 AM | Permalink

Beldar, I personally think this is just another attempt by certain people in conservative circles to perform self-sabotage. I've been saying to anyone who will listen since 2000 that once Hillary's name appears on a ballot, that a large minority of conservatives will do what they can to ensure Hillary's election. They just can't resist having the ol' she-devil back, you know.

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