POLITICS
24/12/2017 5:31 PM IST | Updated 27/12/2017 12:05 AM IST

Should White Supremacists Be Allowed To Practice Law?

Ji Sub Jeong/HuffPost

A few years ago, before he helped organize the deadly white supremacist rally in Charlottesville, Virginia, Augustus Sol Invictus sent a mass email to his friends, colleagues and acquaintances to announce that he was embarking on a spiritual journey to launch “the Second American Civil War.” Invictus — who legally changed his name from “Austin Gillespie” to the Latin for “majestic unconquered sun” — hitchhiked out West, where he fasted and prayed in the desert. When he returned home to Florida, he slaughtered a goat and drank its blood.

White supremacist leader Richard Spencer later credited Invictus, who believes white people are facing genocide at the hands of Syrian refugees and Islamic State terrorists, with drafting an early version of the Charlottesville Statement, a political manifesto released at the August rally. The final version of this document called for a white ethnostate, described Jews as ethnically distinct from Europeans, warned that the “so-called ‘refugee crisis’ is an invasion,” and claimed that “leftism is an ideology of death and must be confronted or defeated.”

There are, as the nation learned after the violence in Charlottesville, plenty of white supremacists willing to espouse their views publicly. What makes Invictus unusual is that until recently, he held a position of power and responsibility — one that is supposed to come with a promise that the holder is of good character and respects the rights and liberties of others: He was a practicing lawyer.

In one of his higher-profile cases, Invictus represented Marcus Faella, the former head of the neo-Nazi American Front, in appealing his conviction for teaching and conducting paramilitary training, allegedly in preparation for starting a “race war.” Invictus maintains that Faella was innocent and became close friends with him and other members of the American Front, he told HuffPost. He also named his law practice Imperium, P.A., after a book written by the mid-20th century Nazi sympathizer Francis Parker Yockey.

Invictus retired from the Florida Bar in March 2017, just a few months before he helped plan the white nationalist gathering in Charlottesville. But because he voluntarily withdrew from the bar, he can petition for reinstatement at any time. And he had plenty of ideological company in the legal profession: HuffPost has identified over a dozen current and former lawyers openly affiliated with white supremacist groups. 

I first started tracking white supremacist and Nazi lawyers after I received a phone call from Mark Zaid, a lawyer and a source of mine in Washington. In the aftermath of the Charlottesville rally, Zaid, like many other Americans, was grappling with how to confront the far-right extremists who proudly gathered there, seemingly without fear of consequences. There would be no rebuke from the White House. Although anti-fascist vigilantes launched their own efforts to bring about accountability, naming and shaming rally-goers and pressuring their employers to sever ties, this ad hoc response was inevitably flawed. The amateur sleuths got some white supremacists fired. But they also targeted some people who weren’t even involved. And free speech advocates warned that firing people because of their beliefs — no matter how abhorrent — could set a dangerous precedent.

Perhaps there was a better way to hold some white supremacists accountable, Zaid mused. Being a lawyer, he noted, is different from most jobs. Lawyers know their clients’ most closely held secrets. Their actions can mean the difference between people going free or spending years in prison, between victims getting justice or nothing. In legal settlements that result in financial compensation, the money goes first to the lawyer, who is entrusted to pass it along to the client. And because of their inside understanding of how the legal system works, lawyers are uniquely equipped to protect themselves from charges of wrongdoing.  

Because of all this, the legal profession is one of the few that requires members to uphold a certain moral standard. In addition to taking the bar exam, aspiring attorneys face a character and fitness test before they can be admitted to their state’s bar and practice law. Lawyers can — in theory — get kicked out of the profession at any time for failing to uphold their state bar association’s ethics rules.

The initial character and fitness test is generally treated as a formality, the requirements vary by state, and enforcement can seem ad hoc. But there are individuals who fail. People have been denied bar admission because of a past gambling problem, delinquent debt, a substance abuse issue or dishonesty. Stephen Glass, a former New Republic reporter who had fabricated characters, quotes and events in more than two dozen stories he wrote for the magazine in the 1990s, was warned off by the New York bar and later rejected outright by the California bar.

Defining moral character is an admittedly subjective endeavor — but marching with neo-Nazis would seem to signal character flaws.

Emily Molli/NurPhoto via Getty Images
Marchers carry Confederate and Nazi flags during the Unite the Right rally in Charlottesville, Virginia, on Aug. 12, 2017.

Although being an avowed racist doesn’t explicitly violate the rules that govern lawyers’ conduct, it can be a problem, said Keith Swisher, a legal ethics professor at the University of Arizona’s law school.

“If a lawyer is truly racist, that presents questions as to whether that lawyer can competently and diligently and fairly represent all clients,” he argued.

In practice, it’s almost unheard of for aspiring lawyers to be denied admission to the bar because of their ideology or for existing lawyers to be punished for expressing their views. Privacy restrictions make it hard to know exactly how often this does happen. The last case to make public waves was nearly 20 years ago, when Illinois’ character committee denied bar admission to Matthew Hale, a white supremacist who said he wanted “to be an advocate for white people in the courtroom.” But instead of inspiring a broader push to root out racists from the legal community, the Hale case and its subsequent backlash may have made bar admission officials more wary of disqualifying people for any reason that could seem to violate free speech rights.

The Matthew Hale Precedent

When he applied for admission to the bar in 1998, Hale made no attempt to hide his beliefs. He disclosed his active efforts to promote racism and anti-Semitism in his application for admission to the Illinois State Bar. He refused to disavow a 1995 letter he wrote in response to a commentary piece that supported affirmative action, in which he referred to the author’s “rape at the hands of a nigger beast.”

A panel of bar admission officials voted 2-1 to deny Hale a license to practice law. They said that the courts and the bar are committed to the principle of equality under the law, regardless of race, ethnicity, religion or national origin.  

“The balance of values that we strike leaves Matthew Hale free, as the First Amendment allows, to incite as much racial hatred as he desires and to attempt to carry out his life’s mission of depriving those he dislikes of their legal right. But in our view he cannot do this as an officer of the court,” the panel wrote.

After another panel upheld the decision, Hale hired Glenn Greenwald, then an outspoken constitutional lawyer, and sued the Committee on Character and Fitness.

Like with every attempt to have the state regulate free speech ... it always starts with the most extreme examples — but it does necessarily set a precedent, whether that’s the intention or not. Glenn Greenwald, lawyer for Matthew Hale

The character and fitness process “resembled a Spanish Inquisition-like interrogation of a person’s political thoughts, religious convictions, and core beliefs,” Greenwald wrote in a complaint filed in federal court. “The vast bulk of the questions were those which would be expected from a tribunal charged with policing a person’s thoughts and beliefs, not a person’s conduct, character and fitness to practice law,” continued Greenwald, who is now a journalist at The Intercept.

At the time, the Illinois bar wasn’t exactly looking for a fight over whether an applicant’s ideology should disqualify him from being a lawyer, Greenwald told HuffPost. But Hale’s views were so toxic that it was hard to argue in good faith that he was of sound moral character.

“The problem, of course, is like with every attempt to have the state regulate free speech, is that it always starts with the most extreme examples — but it does necessarily set a precedent, whether that’s the intention or not,” Greenwald told HuffPost.

Hale lost the case, but the decision was immediately controversial. The Anti-Defamation League, a Jewish civil rights group, defended his right “to spew his venom without restriction.” George Anastaplo, a law professor at Loyola University Chicago who had been denied admission to the Illinois bar in 1950 for refusing to answer questions about whether he was involved with the Communist Party, described the Hale decision as “dangerous and otherwise self-defeating.” The panel essentially punished Hale for having abhorrent views without proving that those views would prevent him from being a good lawyer, attorney Jason O. Billy wrote in 2006 in the Harvard BlackLetter Law Journal.

Hale was eventually arrested and charged with soliciting an undercover FBI informant to kill the judge presiding over a trademark case involving his World Church of the Creator. He is currently serving a 40-year prison sentence.

Counsel For White Supremacism

Like Hale, Kyle Bristow had left a well-documented paper trail of his extreme beliefs by the time he applied for a license to practice law. As a college student at Michigan State University, Bristow organized a “straight power” rally in protest of proposed legislation to protect the LGBTQ community and held a “Koran desecration” contest. He unsuccessfully tried to plan a “Catch an Illegal Immigrant Day” and to host white nationalist Jared Taylor at the university.

While at the University of Toledo law school, Bristow self-published a novel that the Southern Poverty Law Center has described as “seething with lethal white supremacist revenge fantasies against Jewish professors, Latino and American Indian activists and staffers of a group clearly modeled on the SPLC.”

In 2011, Bristow argued that gay and mixed race couples debase the white race by not producing white babies. In a 2012 compilation of essays, he claimed ancient Egyptians administered the death penalty to anyone who brought a black person into Egypt. They understood that “their civilization would be threatened if they bred with the Negroes to their south,” Bristow wrote.

But unlike Hale, Bristow was admitted to practice law in Ohio in 2012 and Michigan in 2013.

Bristow was worried he would be denied admission to the bar because of his involvement in the white nationalist movement, his former wife Ashley Herzog told the SPLC. “He had a whole strategy for how he was going to go in there and distract them with questions so that they couldn’t bring up any questions,” Herzog said. “He even went under a different name. He worked as James Bristow. For a year his boss thought that was his name.” (James is Kyle’s middle name.)

Bristow told HuffPost he never worked under a different name and “you’d be a moron to think otherwise.” HuffPost couldn’t independently confirm that he had been employed under any name other than Kyle Bristow.

On his blogspot.com website, Bristow advertises his ability to help law school graduates with the character and fitness part of the bar admission process. But he denied ever having concerns about passing the character and fitness test himself.

“Saying anything to the contrary is horseshit,” Bristow wrote in an email. “I’m an award-winning, highly rated, ethical lawyer. The only thing that makes me different from my colleagues is that I care about true freedom, the U.S. Constitution, and I strongly [sic] liberals who are trying to ruin America.” (Asked about the missing word in his response, he wrote, “‘Dislike’ goes between ‘strongly’ and ‘liberals.’”)

Bristow now works with Richard Spencer, suing and threatening to sue universities that don’t want to give the white supremacist leader a platform to speak.

Evelyn Hockstein/The Washington Post via Getty Images
Richard Spencer addresses the media on Oct. 19, 2017, at the University of Florida, which initially resisted hosting him as a speaker.

By the end of her marriage to Bristow, Herzog was worried that his racist rants would escalate into acts of violence. He stockpiled weapons and talked with his friends about “how they’re hoping to instigate this race war so that we can all become this separate white state,” Herzog told the SPLC.

Anne Yeager from the Supreme Court of Ohio, which oversees disciplinary action against lawyers, declined to comment on whether stockpiling weapons and discussing plans to start a race war would be grounds for disbarment.

Alan Gershel of Michigan’s Attorney Grievance Commission also declined to discuss specific examples of lawyers’ conduct. In general, he said, Michigan lawyers will face discipline for felony convictions and are often investigated for misdemeanor convictions. Gershel’s office can also investigate a lawyer based on a complaint submitted to his office. In 2016, his office received about 2,100 such complaints, he said. Only 160 resulted in public discipline, although other cases led to nonpublic admonishments.

Bristow is still licensed to practice law in both states.

The ABA Has A Suggestion

There is some indication that the American Bar Association wants to take on racist lawyers. The ABA adopted a model rule last year stating that it is “professional misconduct” for a lawyer to “engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination” on the basis of race, religion or ethnicity, among other things. The rule applies to all “conduct related to the practice of law,” not just an attorney’s interaction with a client or behavior in court. But model rules are just that: models that state bar associations can choose to ignore.

Vermont became the first state to adopt the ABA’s model rule in July, but others have been slow to get on board. Several state bar associations have their own, narrower anti-discrimination provisions, and critics of the ABA proposal say its broad wording risks infringing on free speech rights.

The ABA’s model rule “is a pervasive speech code for lawyers, including on matters unrelated to any pending litigation,” UCLA law professor Eugene Volokh argued in Duke Law’s Judicature journal this past spring. It would “likely cover debates at continuing legal education programs, discussions on bar panels, and even conversations over dinner at a bar function,” he said.

Texas Attorney General Ken Paxton (R) said last year that if his state were to adopt the model rule, it would likely be struck down in court as unconstitutional. Montana’s state legislature has opposed adopting the rule. And South Carolina’s Supreme Court declined to adopt the rule in June.

The next test of state bar associations’ willingness to confront racist lawyers could come in Pennsylvania. Evan McLaren graduated from Penn State’s Dickinson School of Law in May and took the bar exam in July. He went to work for Richard Spencer and showed up at the Charlottesville rally in August. He was arrested and convicted on misdemeanor charges of failing to disperse, which he is currently challenging, he told HuffPost.

Some of McLaren’s classmates from law school received their licenses to practice law around the time they got the results of their bar exam in October, but McLaren is still waiting on his. He told HuffPost he hasn’t received his license yet because he hasn’t submitted all the required paperwork. But the process could also be delayed by complaints about McLaren filed with the Pennsylvania Board of Law Examiners, the group that determines whether applicants are of sound enough character to be admitted to the bar.

Tito Valdes, an attorney who went to law school with McLaren, told HuffPost that he spoke earlier this year to a character and fitness investigator from the Board of Law Examiners who wanted to know about his experiences with McLaren. In response, Valdes submitted documents detailing instances in which he believes McLaren harassed people who disagreed with him on race and social justice issues.

The 14th Amendment is not some special interests amendment for women and people of color and the LGBT community — it’s equal to the First Amendment. Tito Valdes, who went to law school with Evan McLaren

What can be lost in the debate about white supremacists’ rights are the rights of their victims. In particular, Valdes pointed to the 14th Amendment, which guarantees every person within the United States “the equal protection of the laws.”

“The 14th Amendment is not some special interests amendment for women and people of color and the LGBT community — it’s equal to the First Amendment. So you have to figure out what the balance is,” Valdes said.

In November, a Pennsylvania lawyer anonymously submitted a letter to the Board of Law Examiners arguing that McLaren’s affiliation with white nationalist groups brings into question his fitness to practice law. The lawyer, who told HuffPost he does not personally know McLaren, cited McLaren’s role in Charlottesville and his participation in an October anti-refugee rally in Lancaster, Pennsylvania, hosted by the white supremacist group Identity Evropa.

McLaren “would be unable to adequately represent clients he deems are not ‘white,’ and he would inevitably target or discriminate against opponents or adversaries who do not fit or share his concept of whiteness,” wrote the attorney, who is a member of the progressive National Lawyers Guild.

Before McLaren landed his job with Spencer, he thought about pursuing a career as a prosecutor ― a position in which he would have played a major role in determining the fate of accused lawbreakers. He was a volunteer law clerk at the Cumberland County District Attorney’s office during law school and he liked “the public service element” of the work, he told HuffPost. As a certified legal intern, he was even allowed to argue some minor cases in traffic court, he said.

But after McLaren turned up at Charlottesville alongside Spencer, District Attorney David Freed distanced himself from the former clerk and vowed to expand his office’s vetting process for volunteer clerks.

Pennsylvania is currently considering its own, narrower version of the ABA’s anti-discrimination rule. Whereas the ABA rule covers conduct that a lawyer “knows or reasonably should know” is discrimination, the Pennsylvania rule would apply only to lawyers who violate federal, state or local statutes that prohibit discrimination.  

Valdes, the former classmate, predicts McLaren will eventually get a license to practice law in Pennsylvania. “Bar examiners across the country are just really hesitant to sort of flirt with the line of what is free speech,” he said.  

First They Came For The Nazis?

Although McLaren receiving a law license would frustrate people who fear that he will use his law degree to advance white nationalist causes, some of McLaren’s fiercest ideological opponents argue that state bar organizations are correct to be cautious about judging aspiring lawyers on their beliefs.

For years, state bars worked to exclude Communists, African-Americans, and women from the legal profession. The anti-discrimination rules proposed by the ABA, however well-intentioned, could be used to similarly exclude members of marginalized groups, argued Kenneth White, a lawyer who runs the legal blog Popehat.

“We might like it when it’s used against racists, but who knows how it will be used otherwise?” White said. “I don’t think it’s a hypothetical or slippery slope to think it might be used badly by state bars.”

Earlier this year, White and a security researcher named Asher Langton both filed complaints with the State Bar of Texas against Jason Van Dyke, a lawyer who is a member of a racist, thuggish group called the Proud Boys, for making violent threats against them. (The Proud Boys deny being racists. They describe themselves as “western chauvinists.”) Van Dyke told HuffPost that all of the allegations from White and Langton are “completely false.”

Van Dyke’s rants aimed at White, Langton and others — including rapper Talib Kweli — feature racist, homophobic and sexist slurs. But White emphasized in his report that he thought Van Dyke should be penalized for making “true threats,” not for his ideology.

“I don’t think it should be the state bar’s job to police people for being racists or other assholes,” White told HuffPost. “If white supremacists are doing objectionable stuff, you should be able to find them in violation of the rules [of professional conduct],” he argued.

I don’t think it should be the state bar’s job to police people for being racists or other assholes. Kenneth White of the legal blog Popehat

That strategy can be successful. Edgar Steele, who was an anti-Semitic defense attorney for the founder of the Aryan Nations, was disbarred in Washington state in 2012, but probably not for his views. The state bar tossed him out after he was convicted of plotting to kill his wife and her mother. Steele, who maintained his innocence, died in prison.

The State Bar of Texas has already publicly condemned some of Van Dyke’s statements as “reprehensible and contrary to the values we hold as Texas lawyers.” The organization doesn’t comment on pending investigations, but White and Langton told HuffPost they had communicated with bar investigators about Van Dyke as recently as November.

Even when white nationalist lawyers aren’t formally punished by state bar organizations, the public outing of their beliefs and behavior can make it difficult for them to sustain careers as lawyers. Sam Dickson, an avowed racist who represented members of the Ku Klux Klan, told HuffPost that the SPLC ruined his career by publishing a report alleging that Dickson got rich through predatory real estate practices, often targeting black residents in Atlanta. Dickson, who disputes the group’s characterization of his work, told HuffPost that people who don’t believe in racial equality are being discriminated against through a “McCarthyism in leftist form.”

Last year, the Baltimore city government cut ties with Glen Keith Allen, who had helped represent the city’s police in a wrongful prosecution case involving a black plaintiff, after the SPLC revealed that Allen had paid membership dues to the white supremacist National Alliance and was a member of the racist American Eagle Party. Allen has had trouble finding work since, he told HuffPost. Like Dickson, he characterizes himself as a victim of leftist thought policing.

“You know what? Maybe people have controversial views going on inside their head, but let’s judge them by their actions,” Allen said.  

The Threat Of Violence

White supremacy is rooted in a long history of violent actions by its adherents. Several of Invictus’ former girlfriends and acquaintances have accused him of violent behavior, although he has never been charged in those cases. One accuser told a law enforcement official that she was afraid to report his abusive behavior because he was a lawyer.

In the summer of 2014, a then-roommate told an Orlando, Florida, police officer that Invictus had pointed a loaded gun at him while they were both in the house. Once Invictus lowered the gun, he said he thought his roommate was an intruder, according to the police report. (Reached by HuffPost, the former roommate said he didn’t have time to discuss the incident.)

In March 2016, a woman told an Orlando police officer that she was scared of Invictus, her ex-boyfriend. He had battered her several times over the course of their two-year relationship, she alleged, but she didn’t report the incidents at the time. She went to the police after they broke up because Invictus had told a friend he was going to burn all of the woman’s possessions and “shoot her on the spot,” she explained to authorities, according to a police report detailing the woman’s account. (HuffPost could not identify the woman.)

Invictus did not respond to a request for comment about the 2014 and 2016 incidents.

In the fall of 2015, Invictus met a high-school senior at a rotary event and encouraged her to join the Boone High School debate team, where he told her he was the coach. At the time, Invictus was running as a Libertarian to replace Sen. Marco Rubio (R). Weeks later, the teenage girl began an “intimate relationship” with Invictus and his then-girlfriend, she told a law enforcement official in Altamonte Springs, Florida.

Over time, Invictus became abusive, according to a police report documenting the victim’s allegations. (HuffPost doesn’t name victims or alleged victims of sexual assault without their consent. The young woman declined to comment, citing fear of retribution from Invictus and his supporters.) The woman described one incident to the police in which he allegedly slapped her in the face, climbed on top of her, covered her mouth and nose until she couldn’t breathe, and punched her in the side of the head.

Another time, he punched her in the stomach, grabbed her hair, dragged her into a closet and choked her until she passed out, she told the police. When she woke up, he was holding what she felt was a gun to her head, but she was too scared to open her eyes and look. “Tell me why I shouldn’t kill you right now,” he said, according to the account she gave the police. After he calmed down, he tossed a knife at her and said, “Just go get in the bathtub and slit your wrist,” she recalled.

In January 2017, Invictus punched her in the spine, got on top of her and had sex with her “while she just laid there,” she told the police. 

The abuse went on, unreported, for months. In March, the young woman opened her laptop and saw a Google Calendar notification shared from Invictus’ email address, according to the police report. On March 17, there was a reminder to “Annihilate [her first name].” That’s when she decided to go to the police.

When the detective investigating the case asked Invictus about the calendar notification, he said it alluded to exposing personal information about the woman, rather than causing her any physical injury, said Evelyn Estevez, a spokeswoman for the Altamonte Springs Police Department.

After the victim went to the police, Invictus threatened defamation lawsuits against her and her friend Alexandria Brown, who had been speaking out about the alleged violence, unless they both formally retracted the allegations. Living in constant fear of retaliation, Brown said her mental stability plummeted. She signed a retraction in April, admitting that she did not witness the violence firsthand, but adding that she had no reason to doubt her friend’s claims. “I wish I hadn’t signed the retraction, because it was used to imply [the victim’s] narrative was fabricated, but I don’t actually have any reason to believe she is lying,” Brown said. The victim never signed a retraction.

Asked to confirm that the victim never retracted her claims, Invictus said the question was irrelevant. “This is like explaining to a mentally retarded teenager why Santa doesn’t exist,” he wrote in an email. “You are a Jew with an axe to grind against anyone who refuses to denounce the Alt-Right.”

In April, Invictus’ accuser met with a victim advocate in the Office of the State Attorney for Brevard and Seminole counties, but she couldn’t meet with a prosecutor because the police were still investigating the case, office spokesman Todd Brown told HuffPost.

In July, the police recommended that charges of domestic battery by strangulation and aggravated battery be filed against Invictus. Then there appears to have been a communication breakdown. Brown, from the State Attorney’s office, told HuffPost that his office mailed the accuser two requests to meet in the fall with a prosecutor. But the young woman, who may not have received the requests, never responded.

Invictus and his wife continued to deny the allegations of abuse, claiming the accuser was addicted to drugs and trying to smear Invictus’ name. Prosecutors decided they didn’t have enough evidence to convict Invictus and declined to pursue prosecution. “The failure of the victim to cooperate with our office only compounded the existing problem of a lack of evidence,” Brown said.

When a police officer involved in the case asked the young woman why it took her so long to go to the police, she said she was afraid of Invictus. According to the detective’s report, the victim told the officer that Invictus “has ties to white supremacist individuals and knows everything about her, including where she is living now, her friends and family contact information, and her place of work.”

He was also, she said, “a ‘high-powered’ attorney.”

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