THE CHARLOTTE SCHOOL OF LAW AND A WHISTLEBLOWER

The latest developments at the Charlotte School of Law are the culmination of regulatory capture. The last significant ABA task force addressing the crisis in legal education kicked the can down the road, as did all of its predecessors. That came as no surprise because the head of the task force was Dennis W. Archer. He also chaired the national policy board of InfiLaw, a consortium of Charlotte and two other marginal for-profit law schools owned by venture capitalists.

The Persistent Problem

Without the ability to exploit vulnerable prospective law students willing to incur six-figure law school debt in return for limited prospects of meaningful JD-required jobs, the InfiLaw schools—Charlotte, Arizona Summit, and Florida Coastal School of Law—probably would have gone out of business long ago. It’s a safe bet that InfiLaw’s owners would not send their kids to any of them.

Only recently did the ABA take steps to revoke Charlotte’s accreditation. The school lost access to student loan money, and now its doors are closed. In March 2017, the ABA put Arizona Summit on probation for reasons that included a 25 percent bar exam passage rate for its July 2016 graduates taking the test for the first time. Florida Coastal’s 2016 graduates are faring so poorly in the job market that its end may be in sight: only 36 percent of graduates obtained full-time long-term JD-required jobs. Meanwhile, Florida Coastal grads have the distinction of obtaining degrees from a school that is among the leaders in law school debt: almost $160,000. Arizona Summit’s grads are right up there with them.

For years, InfiLaw has been a poster child for a persistent problem, but it’s not the only offender. Ten years after the Great Recession decimated the demand for new law school graduates, the ABA has ignored a perverse incentive system arising from a dysfunctional market. Specifically, marginal law schools lack accountability for their graduates’ poor job prospects. Those schools live on student loans—which is to say that they would die without them. But once students make their tuition payments, their schools have no skin in the game.

Even Archer’s task force report acknowledged that 25 percent of law schools derive at least 88 percent of their revenues from tuition. The overriding goal becomes maximizing revenues by filling classroom seats with tuition-paying bodies. At most marginal schools, that has meant lowering admission standards–an action that later reflects itself in declining bar passage rates for graduates. The result: unemployed law school graduates are burdened with enormous non-dischargeable debt for degrees of dubious value.

What Will It Take?

Perhaps a Charlotte whistleblower will bring change to a profession that has shown a consistent unwillingness to police itself. The allegations from former Charlotte School of Law Professor Barbara Bernier, who filed suit in June 2016 under the False Claims Act, prompted a federal investigation. She alleges that the school defrauded taxpayers of more than $285 million over a five-year period. According to the suit, Charlotte used dubious tactics to shore up the school’s performance numbers, protect its accreditation, and keep federal student loan dollars flowing.

Bernier claims that admissions officers had quotas of students they had to accept to keep their jobs. She alleges that over a six-year period beginning in 2010, 1,355 substandard students were enrolled, resulting in improper government payments to the school totaling $285 million. She asserts that the school discouraged some students from taking the bar exam because it thought they were likely to fail. Even so, the school’s pass rate has dropped steadily and its February 2017 results were the worst in the state: 25 percent. For those repeating the exam, the February 2017 news was worse: 18 percent passed.

How could this happen? A better question is, why wouldn’t it? Bernier’s allegations are consistent with revenue-maximizing behavior that the current law school business model incentivizes without regard to graduates’ outcomes.

“At Charlotte, there was constant talk of investors — referring to the school’s owners,” the Charlotte School of Law whistleblower professor told The New York Times, “and the focus was on the number of students. They were bringing them in and setting them up and then failing them out.”

InfiLaw has until Oct. 20 to file a formal answer to the complaint. Perhaps someday its owners and those who run other marginal law schools across the country will answer to their students who leave such institutions with big debt and limited JD-required job prospects. Every year, the ranks of those alumni grow.

TRUMP AND BETSY DEVOS DELIVER A ONE-TWO PUNCH

Since 2007, the federal student loan forgiveness (PSLF) program has been an escape hatch for law graduates (and others) saddled with overwhelming educational debt. The idea was that the graduate would take a public service job at low pay and reduced monthly loan requirements. After ten years of service, any remaining loan debt was forgiven. The well-known backstory is that student loans are not dischargeable in bankruptcy. They can follow a person to the grave.

There were and still are problems with PSLF, such as the resulting tax on the imputed income from the forgiven loan. And 10 years is a long time to toil in low wage positions. But the country and many recent graduates have been the better for it.

New Problems

Serious administrative issues surfaced when the ABA sued the Department of Education for retroactive denials to lawyers who thought they were employed in qualifying PSLF programs. After original approval, the suit alleged, the department then reneged and said, in effect, “No soup for you.”

According to one report, “The ABA, which views the program as an essential part of its recruiting and retention efforts, was only informed that it was no longer an eligible employer for PSLF purposes earlier this year – nine years into a 10 year program. The association has lost employees who were in the program and has been told by possible hires that the loss of qualification was an important factor in not joining the ABA.”

Problems Solved, Trump-Style

For young lawyers hoping that public service loan forgiveness was the answer to a lifetime of student debt burdens, Trump has some bad news. Rather than remedy the problems with a program that can provide enormous help to many recent grads and the organizations for which they work, he wants to eliminate it altogether. It’s analogous to his approach to the Affordable Care Act. Fixing something is more difficult than eliminating it altogether. So Trump proposes to eliminate it.

Amid the attention surrounding Trump’s scandals involving Russia, obstruction of justice, and business conflicts of interest, many important stories got lost. What’s happening in the U.S Department of Education is one of them. On May 17, The Washington Post reported, “Funding for college work-study programs would be cut in half, public-service loan forgiveness would end and hundreds of millions of dollars that public schools could use for mental health, advanced coursework and other services would vanish under a Trump administration plan to cut $10.6 billion from federal education initiatives.”

Why? Because Education Secretary Betsy DeVos’ lifelong mission has been to promote private and religious schools. According the Post story, she seeks to put $400 million into expanding “charter schools and vouchers for private and religious schools, and another $1 billion to push public schools to adopt choice-friendly policies.”

Who’s Affected?

By the end of 2016, 550,00 people had been approved for the federal loan forgiveness program. The first beneficiaries of the program will receive their rewards this year. If Trump and DeVos have their way, they will become the vanguard of a dying breed. Trump and DeVos are not just throwing out the baby with the bathwater; they’re ripping out the tub and all of the plumbing, too.

TREATING SYMPTOMS; IGNORING THE DISEASE

On May 22, 2017, The Wall Street Journal ran an article about the legal profession’s enduring problem: psychological distress. For decades, attorneys have led most occupations in the incidence of serious psychological afflictions — depression, substance abuse, even suicide. Now some law firms are “tackling a taboo,” namely, the mental health problems of their lawyers.

Some observers theorize that a special “lawyer personality” is the culprit. In other words, we have only ourselves to blame, so no one should feel sorry for us. Then again, no one ever feels sorry for lawyers anyway. But attorney psychological distress has become a sufficient problem that, as the Journal reports, some big law firms are now “offering on-site psychologists, training staff to spot problems, and incorporating mental health support alongside other wellness initiatives.”

Stated differently, law firms are following the unfortunate path that has become a dominant approach in the medical profession: treating symptoms rather than the disease. Perhaps that’s because law firm leaders know that curing it would cut into their personal annual incomes.

The Facts

Other workers have serious psychological challenges, too. But attorneys seem to suffer in disproportionately high numbers. The Journal article cites a 2016 study of US lawyers finding that 20.6 percent of those surveyed were heavy drinkers (compared to 15.4 percent for members of the American College of Surgeons). Likewise, 28 percent experienced symptoms of depression (compared with eight percent or less for the general population). According to a 2012 CDC study cited in the Journal, attorneys have the 11th-highest suicide rate.

Now add one more data point. According to an ABA survey in 2007, lawyers in big firms are the least satisfied with their jobs. Anyone familiar with the prevailing big firm environment knows that it has deteriorated dramatically since 1985.

The New World

What has changed? For starters, just getting a job at a big law firm is more difficult. Corporate clients have found cost-effective alternatives to young attorneys billing $300 an hour to review documents. At many firms, demand remains soft.

But the real psychological problems begin after a new associate enters the door. For most of them, promotion to equity partner has become a pipe dream. In 1985, 36 percent of all lawyers in The American Lawyer’s first survey of the nation’s fifty largest firms were equity partners. In  2016, the comparable number was under 22 percent. More than 40 percent of all AmLaw 100 partners are now non-equity partners. The leverage ratio of equity partners to all attorneys has doubled. Stated another way, it’s twice as difficult to become an equity partner today as it was in 1985. That’s what’s been happening at the financial pinnacle of the profession.

The Business Model

There is nothing inevitable about the underlying business model that produces these outcomes. It’s a choice. In 1985, average profits per partner for the Am Law 50 was $300,000 — or about $700,000 in 2017 dollars. Today’s it’s $1.7 million. And the gap within most equity partnerships reflects their eat-what-you-kill culture. Instead of 3-to-1 in 1985, the ratio of highest-to-lowest partner compensation within equity partnerships often exceeds 10-to-1. As the rich have become richer, annual equity partner earnings of many millions of dollars has become commonplace.

At what cost? The future. As law firm leaders rely upon short-term metrics — billings, billable hours, and leverage ratios — they’re pulling up the ladder on the next generation. Too many associates; too few equity slots. Let the contest begin!

But rather than revisit the wisdom of the model, some big firm leaders have made what the Journal characterizes as a daring move: bring in a psychologist. It’s better than nothing, but it’s a far cry from dealing with the core problem that starts with the billable hour, moves through metrics that managers use to maximize short-run partner profits, and ends in predictable psychological distress — even for the so-called winners. The Journal notes that a psychologist at one firm was offering this sad advice to its attorneys: Take a cellphone reprieve by turning off all electronic devices between 2:00 am and 6:00 am.

But even such input from mental health professionals seems anathema to some firm leaders. According to the Journal, Dentons’ chairman Joseph Andrew says that his fear of offering an on-site psychologist was that “competitors will say we have crazy lawyers.”

Former Acting Attorney General Sally Yates recently told the New Yorker about her father, an attorney who suffered from depression and committed suicide. “Tragically,” Yates said, “the fear of stigma then associated with depression prevented him from getting the treatment he needed.”

For some firm leaders, “then” is still “now.” And that’s truly crazy.

TRUMP AND THE MORGAN LEWIS MESS

On January 11, 2017, Sheri Dillon and Fred Fielding sullied themselves and imperiled the reputation of their firm, Morgan, Lewis & Bockius. They shilled for a plainly insufficient plan to deal with Donald Trump’s massive business conflicts of interest. In doing so, they traversed far beyond the principle that an attorney should advocate zealously on a client’s behalf. I predicted that Dillon, Fielding, and the firm would regret their roles in the charade. If they haven’t seen the light by now, they never will.

Lawyers Without Boundaries; Clients Without Shame

When it comes to dealing with Trump, ignorance of his tendencies affords his attorneys no excuse. Throughout his life, he has destroyed reputations whenever it helped him fulfill an agenda item of the moment. Once his allies outlive their usefulness — or whenever Trump needs a scapegoat — they become expendable. Remember the rumors about cabinet positions for Chris Christie, Rudy Giuliani, and Newt Gingrich? And how quickly Mike Flynn went from loyal patriot to dishonest traitor!

Trump’s January 11, 2017 press conference made for great theater as he claimed yet another victim. “President-elect Trump wants there to be no doubt in the minds of the American public that he is completely isolating himself from his business interests,” Dillon explained amid a mountain of paper. Some of the documents appeared to be blank and some of the folders lacked labels. Substantively, attorneys knew immediately that the Dillon/Fielding/Morgan Lewis plan was a joke. Every day, it becomes less humorous.

Trump Still Owns Everything

Dillon assured the public that Trump would put his business holdings in a revocable trust — meaningless window dressing. She didn’t mention he still owned and benefited from every Trump asset in his portfolio. And he wasn’t selling any of his most valuable ones involving the family business. Still, she explained, no one should worry because his sons, Eric and Don Jr., would run the company. Trump even joked that he’d return to management in eight years, hoping that they’d done a good job and saying that he’d fire them if they didn’t.

Har-dee-har-har-har.

Six weeks later, Eric Trump told Forbes that he would continue to update his father on the family business: “’Yeah, on the bottom line, profitability reports and stuff like that, but you know, that’s about it.’ How often will those reports be, every quarter? ‘Depending, yeah, depending.’ Could be more, could be less? ‘Yeah, probably quarterly.’ One thing is clear: ‘My father and I are very close. I talk to him a lot. We’re pretty inseparable.’”

It Gets Worse

On April 4, ProPublica reported — and Trump Organization attorney Alan Garten confirmed — that a February 10 version of the revocable trust agreement states: “The Trustees shall distribute net income or principal to Donald J. Trump at his request, as the Trustees deem necessary for his maintenance, support or uninsured medical expenses, or as the Trustees otherwise deem appropriate.”

The Trustees are Don Jr. and Allen Weisselberg, who started his career working for Donald Trump’s father Fred in the 1970s. In other words, Trump can watch his wealth grow and get at his money whenever he wants.

Fallout

At the time of the press conference, self-proclaimed law firm public relations experts urged that mere proximity to Trump would make Morgan Lewis a client magnet. At least one prominent client went the other way. The co-chair of the Wallace Global Fund expressed outrage over the firm’s willingness to aid and abet Trump’s undermining of democracy.

On March 28, H. Scott Wallace sent a blistering termination letter to Morgan Lewis chair Jami Wintz McKeon: “We believe that the legal advice given to [Trump] by your partner Sheri Dillon, in the January 11 press conference and background ‘white paper,’ is not just simplistic and ill-founded, but that it empowers and even encourages impeachable offenses and undetectable conflicts of interest by America’s highest official, and thus is an unprecedented invitation to corruption and an assault on our democracy.”

Wallace, a Villanova Law grad, walked McKeon through the patent defects in the Dillon/Fielding/Morgan Lewis conflicts plan. In great detail, he covered issues that I outlined in my three-part series on the plan’s inadequacies. And he added a few zingers:

  • “Ms. Dillon has legitimized a complete non-solution to Trump’s manifold conflicts of interest….”
  • “She adds a few window-dressing safeguards….”
  • “She absolutely denied the existence of any Emoluments Clause problems….”
  • “The result is an illusion of protection against the President using his office for personal gain. Trump’s entire life has been devoted to personal gain, not a moment to public service.”

Presidential corruption matters, and the Dillon/Fielding/Morgan Lewis plan facilitates it. As Wallace observed, “the ethical carnage is mounting”:

  • Just days after Trump reaffirmed the “one China” policy, it granted 38 new Trump trademarks.
  • Trump’s newly hired director of diplomatic sales at his DC hotel has enjoyed tremendous success in foreign bookings, including Azerbaijan, Bahrain, and Kuwait.
  • Trump’s bans on Muslin-majority nations excluded countries where Trump has business interests.
  • China’s government-owned bank is the single largest tenant in Trump Tower and the lease will come up for renewal during Trump’s presidency.
  • Since Trump’s election, initiation fees at Mar-a-Lago have doubled to $200,000.

Wallace could have added that Trump has yet to make good on Dillon’s promise to donate all Trump hotel profits from foreign governments to the U.S. Treasury. And his organization’s post-election success in registering Trump trademarks around the world has been phenomenal.

“It is painfully obvious that Trump is using his office for personal gain,” Wallace continued. “And Morgan Lewis is enabling and legitimizing this… Americans deserve a president of undivided loyalty. Your firm has denied them that.”

What’s Next? Nothing Good for Morgan Lewis

Here is my next prediction: more clients will fire Morgan Lewis. Corporate boards and CEOs will shun a firm willing to tolerate Dillon’s unprofessional performance on January 11. They’ll act on their belief that preserving critical norms of democracy should outweigh a firm’s desire to do almost anything for a client’s billable hour.

But the most discerning of general counsels will leave Morgan Lewis for an entirely different reason that has nothing to do with Trump, politics, the appropriate limits of a lawyer’s role as client advocate, or every attorney’s sworn duty to protect the U.S. Constitution. Substantively, the Trump conflicts plan is embarrassingly bad lawyering.

STUDENT LOANS AND BETSY DeVOS

Into the teeth of the student loan crisis walked Trump’s Secretary of Education Betsy DeVos. She’s already making it worse.

The problem goes far beyond DeVos’ embarrassing ignorance on display at her confirmation hearing, Her main qualification for Trump’s cabinet appears to have been her status as a Republican billionaire-donor. She knows nothing about basic educational policy, the decades-old Individuals with Disabilities Education Act, fraud by for-profit colleges and graduate schools exploiting students, or any other subject about which an aspiring Secretary of Education should have at least some rudimentary knowledge.

Why DeVos?

None of DeVos’ shortcomings kept Trump Party senators from confirming her. With an expertise in lobbying, she pushed Michigan money away from public education and into charter schools that had little or no accountability for their dismal performance. And Michigan now leads all states in the number of charter schools operated for a profit.

For law students, DeVos’ actions in Michigan are more than just a troubling analogy. In an earlier post, I wrote about Jerry Falwell Jr., the president of Liberty University, which has a marginal law school. His newest assignment is leading Trump’s task force on deregulating higher education. Most law schools — especially those whose graduates have the toughest time finding meaningful JD-required jobs — love the idea of deregulating an already dysfunctional market that props them up.

Law School Winners

If marginal schools had to operate in a completely competitive market, many would have closed their doors long ago. As they lowered admission standards and admitted students who produced declining bar passage rates, federal student loan dollars have kept them afloat. Trump embraces deregulation as a panacea. But that’s because, as with so many things, he lacks an understanding of how the absence of regulation would make the currently dysfunctional market in legal education even worse.

Only federal student loans keep the worst law schools in business. Educational debt is not dischargeable in bankruptcy, and federal guarantees add another layer of protection for schools that don’t deserve it. Meanwhile, schools themselves have no accountability for their students’ poor bar passage rates or dismal employment prospects.

The Obama administration had been making life more difficult for schools that exploit students and leave them deeply in debt from which many will never recover. Specifically, schools that grossly underperformed for their students faced the prospect of losing eligibility for the federal student loan program. Charlotte Law School felt that heat directly.

The Other Shoes Dropped

Less than a week after Falwell’s task force appointment, Vice President Mike Pence’s tie-breaking vote in the Senate confirmed Devos as Secretary of Education. Immediately, she chose advisers:

— Robert S. Eitel, an attorney, is on unpaid leave of absence from his job as a top lawyer for Bridgepoint Education, Inc., a for-profit college operator whose stock is up 40 percent since November 9. Bridgepoint faces multiple government investigations, including one that ended in a $30 million settlement with the federal Consumer Finance Protection Bureau over deceptive student lending.

— Until July 2016, Taylor Hansen was a lobbyist for the Association of Private Sector Colleges and Universities, the largest trade group of for-profit colleges. In June 2016, his mission was to eliminate the government’s “gainful employment” rule, which can cost a school federal funding if too many of its recent graduates fail to repay their student loans. But then Hansen became a DeVos adviser and a member of the Education Department’s “beachhead” team — a group of temporary employees that doesn’t require Senate approval. On March 6, the Department announced a three-month delay in deadlines associated with the gainful employment rule.

On March 14, ProPublica reported on Hansen’s unseemly status. On March 20, Sen. Elizabeth Warren sent the ProPublica article with a letter to DeVos asking for an explanation. Hansen resigned the same day.

Bottom line: If you’re counting on help in dealing with the worsening student loan crisis, count the Trump administration out.

ANOTHER BIG LAW FIRM STUMBLES

King & Wood Mallesons was never really a law firm. For starters, it was a verein — a structure that allowed three distinct firms to create a branding opportunity — King & Wood in China, Mallesons in Australia, and SJ Berwin in the United Kingdom. As things turned out, when SJ Berwin came on board in 2013, the verein whole quickly became less than the sum of its parts.

As The American Lawyer’s Chris Johnson and Rose Walker put it in their recent article, a verein is “a holding structure that allows member firms to retain their existing form. The structure…enabled the three practices to combine quickly and keep their finances separate.”

But the structure also means that when one member of the verein hits hard times, the others can walk away. For KWM, “the Chinese and Australian partnerships have effectively been able to stand back and watch as the European practice burned.”

Not Just a Verein Problem

To be sure, the verein structure exacerbates SJ Berwin’s current difficulties. But before leaders of big non-verein firms become too self-satisfied, they might consider whether their own firms risk the same dangers now afflicting KWM.

As Johnson and Walker report, the firm’s compensation system produced bad behavior. KWM awarded client credit to the partner who physically signed the invoice. That effectively encouraged partners to refer work to rival firms, rather than other KWM partners.

Think about that last sentence for a minute.

“It was one of the things that killed the firm,” says one former London partner. “If I sent work to other [KWM] partners, it would be out of my numbers at the end of the year. It was better for me to send it to another firm, as I’d then still be the one invoicing the client, so I’d get the credit for everything.”

A Team of One, Not One Team

When it came to cross selling among offices and practice groups, management talked a good game. Indeed, the verein’s 2013 merger tag line was “The Power of Together.” But here, too, behavior followed internal financial incentives. The compensation committee focused on individual partner performance, not the “one team, one firm” sound bite on its “vision and values” website page.

“There was a complete disconnect between what management said we should do and what the remuneration committee would reward us for doing,” says a former partner.

Lessons Not Learned, Again

As KWM’s European arm disintegrates, most law firm leaders will probably draw the wrong conclusions about what went wrong. Emerging narratives include: SJ Berwin had been on shaky ground since the financial crisis hit in 2008; the firm lacked competent management; the principal idea behind the combination — creating a global platform — was sound; only a failure of execution produced the bad outcome.

For students of law firm failures, the list sounds familiar. It certainly echoes narratives that developed to explain the 2012 collapse of Dewey & LeBoeuf. But the plight of KWM — especially the SJ Berwin piece — is best understood as the natural consequence of a partnership that ceased to become a partnership. In that sense, it resembles Dewey & LeBoeuf, too.

The organizational structure through which attorneys practice law together matters. The verein form allows King & Wood and Mallesons to back away from Sj Berwin with limited fear of direct financial exposure. But as SJ Berwin careens toward disaster, fellow verein members will suffer, at a minimum, collateral damage to the KWM brand.

What’s the Future Worth?

The lesson for big law firm leaders seems obvious. Since the demise of Dewey, that lesson has also gone unheeded. A true partnership requires a compensation structure that rewards partner-like behavior — collegially, mentoring, expansion and transition of client relationships to fellow partners, and a consensus to pursue long-term strategies promoting institutional stability rather than maximizing short-term profit metrics.

Firms that encourage attorneys to build individual client silos from which partners eat what they kill risk devastating long-term costs. They’re starving firm of their very futures. Unfortunately, too many big law firm leaders share a common attitude: the long-term will be someone else’s problem.

In a line that stretches back to Finley Kumble and includes Dewey & LeBoeuf, Bingham McCutchen, and a host of others, the names change, but the story remains the same. So does a single word that serves both as those firms’ central operating theme and as their final epitaph: greed.

OPEN LETTER #3 TO PRESIDENT-ELECT TRUMP: A JOB FOR JEFF SESSIONS

Dear President-elect Trump,

Sometimes your lack of impulse control works for you. For example, on Friday night, you lashed out at the Broadway hit, Hamilton. With the stroke of a few tweets, you dominated the weekend news cycle. The fun ended Sunday morning, when Vice-President-elect Mike Pence told CBS’s John Dickerson that Hamilton was “a great show.”

Pence “wasn’t offended” by a 90-second post-performance comment on behalf of the cast and producers. Your tweets had demanded an apology from them, but it turned out that you now owe one — for misstating the facts and challenging First Amendment principles.

You achieved a larger objective. Your twitter tantrum diverted popular attention from: your thumbs-up group photo after meeting with business partners developing a Trump-branded luxury apartment complex in India; white nationalists convening in Washington to celebrate your election; and your selection of National Security Adviser-designate Mike Flynn, who called Islam a “cancer” and a “political ideology hiding behind religion.” He’s also a board member of ACT for America, which the Southern Poverty Law Center calls “far and away the largest grassroots anti-Muslim group in America.”

Master Distracter

Your Hamilton tweets also moved the spotlight away from your attorney general-designate. In 1986, President Ronald Reagan’s Republican Senate put Antonin Scalia on the Supreme Court and made William Rehnquist chief justice. But even at the height of the Reagan revolution, Alabama’s then-U.S. attorney Sessions became only the second nominee in 48 years to be rejected for a federal judgeship. Now he’ll be your attorney general.

In a normal world, Sessions’ earlier defeat would doom your nominee. But you’re normalizing the abnormal. When Steve Bannon is the baseline for comparison, even Jeff Sessions looks good. He shouldn’t.

Sessions on the Merits

The junior senator from Alabama is one of its most conservative members. He opposes: any path to legalizing undocumented immigrants, gay marriage, abortion, and the legalization of marijuana. He voted against reauthorizing the Violence Against Women Act. His portfolio is a distressing compilation of what you seem to mean by “Make America Great Again.”

Sessions is far out of step with most Americans. (Hillary Clinton’s popular vote victory — 1.5 million ballots and growing — proves that you are, too.) But resigned to his confirmation, I propose a bipartisan assignment for him: restore the integrity of the FBI. It will require a public investigation into events culminating in your election.

Roll the Tape

In October, polls showed you losing so badly that you were likely to cost Republicans the Senate. Three months earlier, FBI Director James Comey had announced that no reasonable prosecutor would bring criminal charges against Hillary Clinton for her use of a private email server while she was secretary of state. But in an unprecedented press conference, he’d opined about her recklessness anyway. That kept your “Crooked Hillary” rally theme alive. Even so, as summer turned to fall, the email-gate story was losing its legs.

On October 25, your key surrogate, Rudy Giuliani appeared on Fox & Friends. When a host asked whether you had anything other than “some more inspiring rallies” planned for the remaining 14 days of the campaign, Giuliani chuckled.

“Yes,” he grinned.

“What?” a co-host asked.

“You’ll see,” Giuliani answered in a full-throated laugh. “We’ve got a couple of surprises left. I call them surprises in the way we’re going to campaign, to get our message out there. Maybe in a little bit of a different way. You’ll see, and I think it’ll be enormously effective.”

Giuliani then discussed how “all of these revelations about Hillary Clinton, finally, are beginning to have an impact.”

On October 26, conservative radio talk show host Lars Larson interviewed Giuliani.

“There’s a kind of revolution going on inside the FBI about the original [July] conclusion being completely unjustified and almost a slap in the face of the FBI’s integrity,” Giuliani said. “I know that from former agents. I know that even from a few active agents who, obviously, don’t want to identify themselves.”

The same day, Giuliani appeared with Fox reporter Martha MacCallum. As the interview ended, he interrupted her to volunteer, “And I think he’s [Trump] got a surprise or two that you’re going to hear about in the next few days.”

MacCallum tried to conclude the interview, but Giuliani kept pushing: “I mean, I’m talking about some pretty big surprises.”

Finally, MacCallum took the bait.

“I heard you saying that this morning,” she said. “What do you mean?”

“You’ll see,” Giuliani laughed.

Friday, October 28

Only days after Giuliani’s teasers, Comey violated Justice Department guidelines with a letter informing Congress that the Bureau was reviewing additional evidence relating to the Clinton email investigation. Immediately, Giuliani backpedaled.

“I don’t know anything about leaks from the FBI or the Justice Department,” he told CNN’s Wolf Blitzer. “I haven’t talked to anybody in the FBI or Justice Department.”

When Blitzer confronted Giuliani with the Lars Larson interview, Giuliani responded, “Well, the information I’ve been getting is from former FBI agents. If I did say that, that was wrong.”

In 48 hours, Giuliani had gone from “I know that even from a few active agents who, obviously don’t want to identify themselves” to “the information I’ve been getting is from former FBI agents.”

But Giuliani’s distinction didn’t help the Bureau. Whether the leaks came directly from active agents, or whether active agents leaked to retired agents who then went to Giuliani, they originated within the FBI. In addition to professional responsibilities of confidentiality under the ABA Standards on Prosecutorial Investigations, agents sign employment agreements that have sharp non-disclosure teeth. Certain FBI personnel working on the Clinton investigation also signed a “Case Briefing Acknowledgement,” agreeing that “due to the nature and sensitivity of this investigation, compliance with these restrictions may be subject to verification by polygraph examination.”

Lie detectors!

Wednesday, November 2 

Less than a week before Election Day, another FBI leak produced a new bombshell. Bret Baier of Fox News cited “two separate sources with intimate knowledge of the FBI investigations” for what turned out to be a bogus report. He said that the Clinton investigations would likely to lead to an indictment. You milked that one. As rally crowds responded with “Lock her up” even more loudly than before, some members of your mob added, “Execute her!”

By Thursday, Baier admitted that he’d spoken “inartfully” about the false FBI report. By Friday, he was in full retreat: “That just wasn’t inartful, it was a mistake and for that I’m sorry.”

When MSNBC’s Brian Williams grilled your campaign manager Kellyanne Conway on whether you would stop using the earlier false report in your stump speech, she smiled and said, “Well, the damage is done to Hillary Clinton…”

Sunday, November 6

Then Comey sent another letter confirming that his earlier missive had been a false alarm. But by then, early voters had cast 40 million ballots — almost 30 million of which came after his October 30 letter. Meanwhile, you’d spent the week telling crowds that Clinton’s problems were “bigger than Watergate” and that criminal investigations into her dealings would continue for years into her presidency.

When confronted with Comey’s latest exoneration of Clinton, Kellyanne Conway kept her smile as she told MSNBC, “We have not made this a centerpiece of our messaging… This has not been front and center of our campaign.”

Sessions could put Rudy Giuliani under oath and ask him to name his FBI sources — active or retired. After all, if this had happened to you, hearings in the Republican Congress would already be underway. Now they’ll never happen. To “Make America Great Again,” start with the FBI, if you dare.