Democrat Memogate: As the Wagons Circle

On April 19, Jonathan Groner published a brief piece in Legal Times. The lead sentence read: "The Virginia State Bar has rejected an ethics complaint filed last December against Elaine Jones, president of the NAACP Legal Defense and Education Fund."

Further in the piece, David Kendall, Ms. Jones’ lead attorney, was quoted as saying, "Ms. Jones is guilty of being a dynamic civil rights leader, but that’s hardly the basis for a bar complaint. Her 34-year record as a member of the Virginia State Bar remains unblemished."

Well, well, well. That would be the same David Kendall who, in a brief defending Ms. Jones’ attempt to have Senator Kennedy stack the judicial deck in her pending legal case, complained that the Center for Individual Freedom was not abiding by the confidentiality request of the Virginia State Bar.

That would be the same David Kendall who knew when he spoke with Mr. Groner that the Virginia State Bar is reviewing its initial decision not to investigate Ms. Jones’ conduct, at least in part on the basis of new information regarding the case. Mr. Kendall knew that, because he was copied on the letter from the Virginia State Bar which said so. The letter was sent to him some time before his conversation with Jonathan Groner.

That would be the same David Kendall who knows he should not state or imply that a bar complaint was filed against Ms. Jones for "being a dynamic civil rights leader." A bar complaint was filed against Ms. Jones for her specific, documented request to Senator Kennedy’s office to delay the confirmation proceedings of a federal appellate court judge for the sole purpose of affecting the outcome of the University of Michigan affirmative action case in which she was counsel.

That would be the same David Kendall who, while a first-rate attorney providing Ms. Jones with the vigorous defense to which she is entitled, also sits on the Board of Directors of the NAACP Legal Defense and Educational Fund (LDF) — Ms. Jones’ employer.

During the Watergate Hearings, former U.S. Senator Howard Baker repeatedly asked one question to perfection: "What did he know and when did he know it?"

With regard to the Kennedy Memo (for full background, click here), who knew what, when and under what circumstances are equally troubling questions. Was Elaine Jones acting alone? Did the Board of Directors of or other colleagues at LDF know of her actions? Did the other parties and lawyers supporting the University of Michigan’s position know of her actions?

We do not know the answers to those questions, and the public will not know unless there is a full-scale investigation that produces answers.

Thus far, with the sole exception of David Kendall, no one associated with LDF has been willing to speak or answer any questions. Kendall is clearly speaking as Ms. Jones’ attorney, not as an LDF Board member. And although many attorneys and many organizations would go out of their way to avoid questions about such an awkward dual role, that’s Kendall’s business and LDF’s business.

We have made it our business to try to get to the bottom of this fine mess and encourage others — the press, ethics oversight bodies, the government — to do the same.

Whether or not ethics were violated, whether or not laws were broken, the Kennedy Memo brings no credit whatsoever to anyone involved. In a world where perception is more important than reality, circling the wagons only concentrates and enhances perceptions.

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