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Rob McKenna: Crappy Lawyer or Crappy Liar?

This Isn't the First Time the Wannabe Governor Has Been Caught Arguing One Thing in a Court of Law and Another in the Court of Public Opinion

by Goldy

When 90 women filed suit against Washington State attorney general Rob McKenna on May 3, accusing him of violating professional ethics and asking a King County Superior Court judge to compel McKenna to reverse legal pleadings attacking President Obama's health-care-reform law, McKenna's campaign was quick to dismiss the claims as "frivolous," the women's lawyer as "laughable," and the women themselves as "shrill."

But whatever the legal merits of this case, the evidence the plaintiffs laid out seems irrefutable to me: McKenna has repeatedly misled Washington residents by arguing one thing in a court of law and another in the court of public opinion.

McKenna's official position on Obama's health-care-reform act, repeated both on his state website and in multiple public statements, is that the bulk of the provisions of the law are good for Washington and its residents—and that these good-for-us provisions can and should be upheld by the US Supreme Court even if the controversial individual mandate, which McKenna thinks is unconstitutional, gets invalidated. Over and over, McKenna has insisted in public that his lawsuit, now under consideration by the high court justices after high profile oral arguments in March, "does not challenge" and "will not affect most provisions in the 2,400-page bill."

Yet in multiple legal pleadings and arguments, McKenna has taken the exact opposite position, asking courts to invalidate the entire health-care-reform law and all of its protections.

"Either Mr. McKenna has falsely stated his position concerning the best interests of his client—the citizens of Washington—or he has acted directly against those interests," University of Washington law professor Robert Aronson concludes in expert testimony appended to the women's suit. Either action (falsely representing a client's best interests or acting directly against those interests) could be grounds for sanctions or even disbarment.

And if, as the suit alleges, McKenna did mislead the public about the legal arguments he was making in court, it wouldn't be the first time.

In a June 10, 2010, e-mail discussing ways to publicly frame the attorney general's refusal to represent Commissioner of Public Lands Peter Goldmark in an eminent domain appeal, McKenna's communications director, Janelle Guthrie, suggested trying to use one of Goldmark's subordinates against him. This subordinate had recently testified in favor of a bill modifying eminent domain law, which could be "helpful in our talking points," wrote Guthrie, by suggesting that Goldmark knew current law didn't support his case.

The problem: The bill in question was irrelevant to the issue at hand, and McKenna's own office had already argued as much in court.

As soon as McKenna and his spokespeople started pushing this "helpful" rhetorical hit on Goldmark to the press, one of McKenna's own assistant attorneys general, Pamela Krueger, sent a June 21, 2010, e-mail to McKenna's press office telling them that they were pushing a load of crap.

"I noticed your quotes today and just wanted [you] to know that the statements you made are not accurate," Krueger wrote, "in case accuracy is important" (italics mine).

It was Krueger who had specifically argued in her previous court pleadings that the testimony was not relevant to Goldmark's case. And yet the day after Krueger made this explicitly clear, their boss went on Seattle's KUOW and repeated those very same "helpful"—if "not accurate"—talking points, citing Goldmark's subordinate's testimony as evidence that Goldmark "must realize" existing law did not support his case.

In other words, McKenna was publicly contradicting a legal opinion his own office had recently argued in court. Sound familiar?

Whether this current lawsuit succeeds largely rests on the unsettled issue of whether the attorney general is subject to the rules of professional conduct that apply to all other lawyers in the state. But even if Washington courts end up ruling that our state attorney is allowed to lie to the people, that's not much of a victory for a politician attempting to use the attorney general's office as a springboard to higher office.