Clinton campaign lawyer Marc Elias is under fire today after the Washington Post ran an extensive story on how the Clinton Campaign and Democratic National Committee hired controversial research firm Fusion GPS to dig up dirt on Donald Trump in Russia in the “Russian Dossier” matter. Reporters at the New York Times have accused Elias of lying in past categorical denials of any connection to Clinton or the DNC. The reports indicate that not only did the Clinton team fund the opposition research but that Elias may have been the person handling much of the arrangements. Update: Brian Fallon, former spokesperson for the Clinton campaign, has said that this was “money well spent.” On CNN, Fallon said that the “sensitive nature” of the project meant that it was kept to a small number of people that did not include him. Fallon’s expression of satisfaction with the work however conflicts with what reporters say Elias told them. He notably sounded a lot like Trump in saying “opposition research occurs all the time.” Christoper Steele is a foreign national who was seeking information from foreign sources to use against Trump.
The reports indicate that the Clinton campaign and the DNC, through the law firm, continued to fund Fusion GPS all the way until just a few days before the election. Fusion GPS has stonewalled on questions over who funded it and key witnesses have invoked their Fifth Amendment protection against self-incrimination.
According to the Post, Elias was representing the Clinton campaign and the DNC where he retained Fusion GPS and the dossier author Christopher Steele, a former British intelligence officer. Elias is a partner at the Seattle-based Perkins Coie, a firm that received millions from the Clinton campaign. The Clinton team gave Perkins Coie $5.6 million in legal fees from June 2015 to December 2016.
The story left some reporters irate and their ire is directed against Elias and Perkins Coie. New York Times reporter Ken Vogel went public and said that Elias “vigorously” denied his involvement in the anti-Trump dossier: “When I tried to report this story. Clinton campaign lawyer [Marc Elias] pushed back vigorously, saying ‘You (or your sources) are wrong.’”
NYT reporter Maggie Haberman wrote on Twitter and joined in on the criticism and accused the Clinton team of outright lies: “Folks involved in funding this lied about it, and with sanctimony, for a year.”
If Elias and Perkins Coie lied to the media about the role of the Clinton campaign and the DNC in the affair, such allegations fall into a murky area of legal ethics. Elias was clearly representing clients in this matter. Attorneys are subject to a code of ethics that bars them from making false statements in representation. This is usually a matter of court filings or litigation, which have well-defined systems for addressing such misconduct. Lying to the media is less defined but still covered by ethical rules.
While recognizing the duty of lawyers to defend their clients in the court of public opinion, the American Bar Association has repeatedly stressed that they can be disciplined for a variety of violations from making improper extrajudicial comments to violating prosecutorial limits to attacking judges. One such limitation is found in Model Rule 8.4(c) which makes it improper for a lawyer to “engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” In this case, Elias not only allegedly actively participated in putting out false information to the public in a presidential election but hampered efforts to establish responsibility in a matter of great public significance.
Then there is Rule 4.1:
Transactions With Persons Other Than Clients
Rule 4.1 Truthfulness In Statements To Others
In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person; or
(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.
However, it is important to note that we have not heard a response from either Elias or Perkins Coie on these serious allegations.
The alleged denials by Elias also raise potential criminal risks if any false or misleading comments were made to federal or congressional investigators, though it is not clear if such interviews have occurred.
Elias has deep ties to Clinton and Democratic politics. He still lists himself as general counsel to Hillary for America, the presidential campaign of Hillary Rodham Clinton. He previously served as general counsel in John Kerry’s 2004 presidential campaign.
Elias and Perkins Coie will now face some very serious questions going forward. Elias already spoke to the media on the allegations and did not claim privilege. This could also be fashioned as a possible criminal matter by investigators in negating privilege assertions. However, Elias has already gone public on the alleged involvement of both the Clinton campaign and DNC in the dossier controversy. It will be hard to get that cat to walk backwards.