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Law & the Courts

In Light of DOJ Malfeasance, EAC Seeks Outside Counsel in Noncitizen-Voting Case

Tuesday night, soon after Judge Richard Leon denied the request by the League of Women Voters and the NAACP for a Temporary Restraining Order, the U.S. Election Assistance Commission (EAC) asked for help in getting a lawyer who would actually defend it in court, which the Justice Department has so far refused to do.

According to lawyers I spoke with, Christy A. McCormick, the chairwoman of the EAC, sent two separate letters (with copies to all of the lawyers in the case) to Judge Leon and Attorney General Loretta Lynch. The letter to Judge Leon notes the EAC’s “grave concerns regarding the potential conflict of interest and failure of the Department of Justice to provide” the EAC with proper representation.

Based on the pleading DOJ filed on Monday morning in which they took the side of the plaintiffs, as well as “the performance of the DOJ attorney” at the Monday hearing, the EAC does “not believe that the agency will receive the full and zealous representation it deserves.” Commissioner McCormick then ask Judge Leon to permit the EAC to seek “outside counsel to represent [the] EAC in this matter and to require the DOJ to fund that professional service.”

Chairwoman McCormick sent a second letter to Loretta Lynch, asking if she is aware of the misbehavior of the DOJ attorneys assigned to this case, particularly their telling the EAC that DOJ had “no basis on which to defend” the EAC’s action. The EAC had agreed to change the instructions for the federal voter-registration form to inform residents of Alabama, Georgia, and Kansas that they must comply with state laws that require proof-of-citizenship when they are registering to vote using the federal form.

That is a particularly outrageous claim by DOJ, given that the law and a prior Supreme Court case fully supports what the EAC did. McCormick also asked Lynch whether she was aware that DOJ attorneys told the EAC that the agency would not be allowed “to appear through its General Counsel or retain counsel to defend against this lawsuit.” She specifically asked the Attorney General whether she “approves” of that position.

McCormick then pointed out to General Lynch how poorly the DOJ lawyers performed “both in their written submissions and in argument.” She also noted that Judge Leon “questioned them regarding a potential conflict of interest that they failed to disclose.” Because of “the conflict of interest, poor performance, and failure to mount a defense of the EAC,” McCormick stated that she does not “have confidence that the DOJ will subsequently provide adequate representation . . . much less a zealous one.”

McCormick has asked Attorney General Lynch to approve a special counsel to represent the EAC under 28 U.S.C. § 514, which provides that the “head of an executive department or agency” can request “the service of counsel” from the attorney general when an agency head — such as McCormick — “is of the opinion that the interests of the United States require the service of counsel. . . . ”

McCormick clearly thinks such a special counsel is required here — and the misbehavior and poor performance of DOJ so far in this litigation fully supports her view.

Although she does not mention it in her letter, the rules of professional conduct may also support the position being taken by Commissioner McCormick with regard to DOJ’s lack of proper representation of the EAC. Rule 1.3 of the Rules of Professional Conduct of lawyers in the District of Columbia, for example, requires a lawyer to “represent a client zealously and diligently within the bounds of the law.” A lawyer “shall not intentionally [f]ail to seek the lawful objectives of a client through reasonably available means permitted by law.” Most importantly, lawyers may not intentionally “prejudice or damage a client during the course of the professional relationship.”

Under such circumstances, Judge Leon should order Lynch and the DOJ to appoint a special counsel to represent the interests of the EAC — and the interests of American voters in making sure their votes are not stolen or diluted by non-citizens illegally registering and voting.

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