Alaska lawyers could be losing Clarkson's anti-union crusade at half the price

Last summer the Dunleavy administration chose to hire the $600-per-hour Washington, D.C. lawyer who claims President Trump is above the law.

This was not long after the state hired a Chicago law firm at $350 an hour to deal with the Inland boatmen’s Union ferry strike. The state contracted with Clark Baird Smith of Chicago on July 22 at $350 an hour.

The ferry system strike ended on Aug. 1.

The next day the state signed a $50,000 contract with Trump’s lawyer, Consovoy McCarthy, at $600 an hour for “work that spun off of the Inlandboatmen’s dispute” related to dues collection, Deputy Attorney General Ed Sniffen told a legislative subcommittee Friday.

The no-bid Consovoy contract was for $50,000. Most of the money was gone by the end of September.

“What was so compelling to go and single-source to the Consovoy firm with their ‘discounted’ rates of $600 an hour?” Anchorage Rep. Matt Claman asked Sniffen at a hearing Friday.

It was William Consovoy, Trump’s lawyer and the major figure at the firm, who made news last fall by saying that if Trump shot someone on Fifth Avenue, nothing could be done to him as long as he is president.

Sniffen said the “constitutional law expertise” of Consovoy’s five-year-old firm was a key factor in the no-bid deal.

The original deal turned out to be a starter contract, It was later increased to $100,000 and in December a new contract for $600,000 was approved.

This is all to push the anti-union crusade that Attorney General Kevin Clarkson wants to take to the U.S. Supreme Court. He wants to make it harder for unions to collect dues, pushing a theory that expands upon the so-called Janus case.

In the Janus case, the U.S. Supreme Court ruled that those who are not union members can’t be required to pay an “agency fee” as a substitute for union dues.

Clarkson claims to know that the Supreme Court really wanted to make a broader ruling that applied to union members, allowing them to stop paying dues whenever they wanted, instead of once a year.

Clarkson, who is willing to spend any amount of state money to advance his ideology, claims the state needs clear evidence from every union employee at all times that they want to pay dues.

Every federal court, as well as state courts, arbitrators and state labor relations agencies that have dealt with the issue have said that the Janus case does not mean what Clarkson claims.

There is no sign that Clarkson or anyone else in state government has calculated what the case will cost, how many years it will take or what the odds are of losing.

It appears that if the Legislature tries to block the Consovoy funding, the Dunleavy administration will move money around in the law department budget to pay Trump’s lawyer.

The questioning of Sniffen by Reps. Andy Josphson and Claman, both attorneys, examined the financial folly of hiring Outside attorneys for the crusade instead of using one or more of the 160-some civil lawyers already on the state payroll to push this simple case.

Sniffen mentioned the BP-Hilcorp sale as an example of a complicated question that requires lawyers with expertise in a specific field.

The anti-union crusade is not at all like the BP-Hilcorp sale.

I suspect that Clarkson picked Consovoy to elevate his personal reputation among the nation’s right-wing legal establishment and earn points with organizations that might help fund the crusade, join it in the years ahead or even take it over.

The record in state court is a losing one, so far. “We can’t judge the game by the half-time score,” Sniffen said.

Halftime or not, the state didn’t need to hire Trump’s lawyer to lose.

A retired Alaska attorney wrote on his blog about this matter a few months ago, reflecting on how spending more on a lawyer won’t help a losing cause. He noted that after the Fairbanks city government spent a fortune on one such venture, the members of the Tanana Valley Bar Association declared that they would have been glad to lose it at half the price.

Josephson said he has read the Janus case thoroughly and that assistant attorney generals handle more complex cases all the time.

Sniffen’s long-winded and unpersuasive justification for hiring Trump’s lawyer was as follows:

“When we were considering outside counsel on this matter, the attorney general was very concerned with having a firm that had experience in interpreting Supreme Court decisions like the Janus decision, and experience with constitutional questions that the Janus decision raised. I think he knew this was going to be an important and potentially contentious issue. And he wanted to have some of the best advice that he could have in the country. And he settled on this firm as a firm that could provide the state with that assistance. And I think you know at the end of the day it’s something that’s gonna benefit everyone. We’re going to get to the bottom of it, one way or the other. It’s going to be a well-informed, you know, analysis. So other than just pointing out the depth of experience they have that we really don’t have at the Department of Law in these specific kind of issues, we decided that having outside counsel would really help us in this matter,” Sniffen said.

Claman said it may be several years before the case gets to the U.S. Supreme Court and in the meantime, the state is paying top dollar to an Outside firm to lose.

“Having lost badly in the trial court, can we really afford to go forward? Is that a smart use of resources? I’m not seeing it,” Claman asked.

Clarkson is “deadset on bringing this case at all costs to the U.S. Supreme Court without making a meaningful evaluation of the risks and benefits of success and the costs of doing so,” Claman said.

But Sniffen claimed that the man he referred to as “General Clarkson,” is all about protecting constitutional rights. Sniffen also claimed there is a careful process before making recommendations on appeals in every case, including this one.

Sniffen claimed the decision to keep spending on this matter was “vetted very carefully” and he mentioned a cost-benefit review, etc.

But the facts contradict his claims.

Clarkson announced his long-term strategy months ago. There was no vetting. There was no cost-benefit analysis.

Had there been a cost-benefit review, the state would not have increased its commitment to Consovoy McCarthy from $50,000 in August to $100,000 in October and $700,000 in December.

As to the case, Anchorage Judge Greg Miller granted a temporary restraining order against the state on Oct. 3, but Clarkson already had his eyes on the prize.

“This Superior Court decision is just the first — a speed bump — in a much longer legal battle which will likely reach the U.S. Supreme Court,” the general said after losing the first round.

So much for being “vetted very carefully,” in Sniffen’s words.

After the first speed bump, the state broke an axle a month later when Miller granted a preliminary injunction. The state offered no new arguments after the first speed bump, but asked that the judge declare the state the winner, which he declined to do.

Clarkson wants to move his crusade to the U.S. Supreme Court and has not presented a realistic analysis of how much it might cost or the chances of success. The Legislature is not hearing the truth about this.

As Josephson wrote last fall, “Clarkson's is not an Alaska-inspired lawsuit. Like Donna Arduin, it's from Outside, driven by national, far-right, Koch-funded think tanks.”

Your contributions help support independent analysis and political commentary by Alaska reporter and author Dermot Cole. Thank you for reading and for your support. Either click here to use PayPal or send checks to: Dermot Cole, Box 10673, Fairbanks, AK 99710-0673.