While Kellyanne Conway has many notable achievements to her credit, she may go down in history for inventing the term alternative facts—a euphemism for some of the Trump administration’s glaringly false assertions. Although many commentators have discounted the counselor to the president as a political flack making lame excuses, a group of 15 legal ethics professors think her behavior should not be so easily dismissed. Citing several of Conway’s own untrue statements, they have filed a disciplinary complaint against her with the District of Columbia’s Office of Disciplinary Counsel, alleging she has violated the rule prohibiting “dishonesty, fraud, deceit, or misrepresentation.”
As a liberal Democrat, I have no sympathy for Conway’s habitual disregard for truth. As a professor of legal ethics, however, I think this complaint is dangerously misguided and has the potential to set a terrible precedent.
First, the complaint keys in on two specific statements, neither of which had any connection to Conway’s law license. Those statements—her invocation of the nonexistent “Bowling Green massacre” and the false claim that President Obama had once ordered a refugee ban similar to Trump’s—were both made in a clearly political context, one in which overstatements are commonplace. Conway was defending her boss to the press, not testifying before Congress or implementing an executive branch directive. It might be different if she had been acting in an official capacity, which could be construed broadly as related to the practice of law, but she is a political adviser to Trump with no governmental responsibility. Political debate is protected by the First Amendment, even when it strays into questionable territory, and it should not be the job of the bar authorities to police the exaggerations and misstatements of politicians just because they happen to be lawyers. (The complaint also takes Conway to task for defending Sean Spicer’s use of “alternative facts” regarding the inauguration crowd and for hawking Ivanka Trump’s jewelry line on television. Those statements are maddening and irresponsible, but they are not fraudulent.)
In any case, both statements were somewhat tethered to real facts. Two men were arrested in Bowling Green for providing “material support to terrorists” in Iraq, although there had been no massacre, and Obama had tightened the admission of refugees in 2011, although not on anything like the scale of Trump’s complete ban. Thus, the District of Columbia disciplinary counsel will almost certainly dismiss the professors’ complaint on the grounds that the statements did not amount to punishable fraud. If that happens, you can bet that Conway will boast of complete vindication, thus rendering the complaint both a futile exercise and a strategic blunder.
But the worst outcome would occur if the professors’ complaint were actually to succeed. Imposing discipline on Conway—even the mildest slap on the wrist—would inevitably lead to a slew of new complaints against attorneys involved in public debate. Lawyer-candidates in the 2016 election cycle included Hillary Clinton, Tim Kaine, Marco Rubio, Ted Cruz, Chris Christie, Rick Santorum, Lindsey Graham, and Martin O’Malley, with many others in Senate and House races (not to mention thousands of campaign aides). Each of these candidates presumably could have been subject to a bar complaint by a disgruntled adversary. If the Conway complaint works, every statement by a candidate or spokesperson is potential fodder for a politically motivated disciplinary complaint.
The professors no doubt have faith in the professionalism of the District of Columbia Office of Disciplinary Counsel, but the bar authorities in other states may not always be reliably even-handed or apolitical. It is hardly inconceivable that lawyer discipline might somewhere be used as a weapon against disfavored or minority candidates, or as a means to squelch protest movements and insurgent campaigns. In the 1940s and 1950s, suspected Communists and alleged “fellow travelers” found their law licenses in jeopardy in many states. In the 1960s and 1970s, civil rights lawyers were hauled before the bar authorities in the South. The complaint against Conway is an unfortunate step back in the direction of using lawyer discipline against political enemies.
After all, no political party has a monopoly on hyperbole, and nobody in public life will ever be immune from an accusation of deceit. A statement of President Obama’s—“If you like your health care plan, you can keep it”—was branded the “Lie of the Year” by the nonpartisan website PolitiFact, and Hillary Clinton was subjected to hours of congressional grilling over her initial, and incorrect, explanation of the terrorist attack on the Benghazi consulate. Neither of them had to face bar discipline, but that might not be the case in the near future.
The professors recognize that bar complaints about public speech can “lead to mischief and worse” but argue that Conway, as counselor to the president, has a “higher obligation” than other lawyers to avoid dishonest statements. I think this gets it exactly backward. Speech is most strongly protected when it is part of a robust political debate. If one of the president’s chief advisers cannot freely speak her mind, even when it is full of nonsense, then who can? Justice Louis Brandeis once said that the remedy for bad speech is more speech. Likewise, the best remedy for alternative facts should be real facts. That ought to be comeuppance enough for Kellyanne Conway.