A Counterpoint On Crystal Clanton—From A Leading Libel Lawyer

There’s no reason for Crystal Clanton to say anything about the controversy surrounding her, according to Libby Locke of Clare Locke.

(via Getty Images)

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As I expected, I received a fair amount of criticism over my open letter to Crystal Clanton. But the content of the criticism surprised me.

I thought I would receive complaints from readers who wanted me to speak more harshly about Crystal, a future law clerk to Justice Clarence Thomas who allegedly sent racist text messages to a co-worker around nine years ago. Instead, I received complaints from readers who disagreed—strongly—with my advice that Crystal engage with her critics.

Their argument, in a nutshell: Crystal’s critics aren’t acting in good faith; they’re simply looking for ways to attack outspoken conservatives like her and Justice Thomas. Since the haters will never accept either (1) exculpatory evidence if she’s innocent or (2) an apology if she’s guilty, she should ignore them—and get on with her career and her life.

In my open letter, I mentioned that if someone accused me of sending racist texts, I’d hire a defamation lawyer. One of the lawyers I had in mind was Libby Locke, co-founder of Clare Locke, one of the nation’s top plaintiff-side defamation firms. I interviewed Libby and Tom Clare, her partner in both law and life, for my podcast—shortly after they helped secure a $787.5 million settlement for their client, Dominion Voting Systems, in Dominion v. Fox.

I heard from Libby after publishing my Crystal Clanton post. Libby respectfully disagreed with my advice, and I appreciated her perspective as a seasoned defamation and crisis-management lawyer.

Given my commitment to free speech and viewpoint diversity, I’m always happy to share opinions that differ from my own. So here’s what Libby had to say, which I’ve turned into the form of a Q&A.

David Lat: So, Libby, where did I go wrong in my advice to Crystal Clanton?

Libby Locke: I often agree with your analysis, David, but you’re totally wrong on this situation. Your advice is that of… a journalist!

DL: Fair enough, since that’s what I am. And I’ll confess that the conceit of an open letter to Crystal Clanton was partly my device for getting into this story as a journalist.

But what’s so problematic about advising Crystal from a journalist’s perspective?

LL: Your advice was given through the lens of putting the public’s perception and optics first and foremost, not necessarily Crystal’s best interests. Those things can be—and quite often are—very different.

DL: Say more. Isn’t it in Crystal’s interest to rehabilitate her reputation?

LL: Here’s the bottom line: she’s winning! She’s clerking on the U.S. Supreme Court for Justice Thomas, after a clerkship with Chief Judge Pryor. What more could a young conservative lawyer ask for? And no matter what she says, she will never appease or convince those who are out to get her.

DL: Well, let’s go through the two scenarios outlined in my letter.

First, let’s say she never sent any racist texts, but was instead framed by ex-colleagues out to get her. Why wouldn’t she want to clear her name?

LL: By making statements about those who framed her, she’s giving them a defamation lawsuit. She will draw into discovery those around her whom she loves and respects, who have mentored her over the years.

Can you imagine Chief Judge Pryor or Justice Thomas having to sit for depositions? And the years of additional media attention should such a claim be filed? And the significant risk that the lawsuit doesn’t actually result in an adjudication of the issue on the merits?

And let’s say that, after years of litigation, she somehow ultimately prevails. Do you really think the same press breathlessly reporting on the issue over the past few months will do vindication pieces for Crystal at the end of the case? Zero chance. “Editorial discretion” about what to cover and what’s “newsworthy” and all that nonsense will be the excuses invoked for not covering anything positive about her.

I’m usually in the camp of advising clients to give firm denials, but in this situation, given the facts as they now stand—including the statement she previously gave to Jane Mayer—Crystal is doing 100 percent the right thing by ignoring the noise, addressing the situation privately on an as-needed basis, and working hard and kicking butt in her clerkships.  

DL: Fair points. You’re persuading me that this could turn out to be a giant mess—not just for her but also for Chief Judge Pryor and Justice and Mrs. Thomas, even if Crystal is innocent.

But let’s say she’s guilty. Let’s say she sent the racist texts. Why shouldn’t she confess and apologize?

LL: Even if she admits she sent the texts, she’ll never be forgiven by her detractors. It will only tarnish Pryor’s and Thomas’s reputations, as well as the reputations of Turning Point USA and Ginni Thomas—the very people and institutions who are making her a winner in this battle.

DL: Look, I’m the last person to minimize the importance of a SCOTUS clerkship. But it’s the starting point of a career, not the end.

As things currently stand, Crystal can have a great legal career, but only if she stays on the conservative side of the aisle. After her clerkship with Justice Thomas, I’m sure she could get a job at a right-of-center litigation boutique like Cooper & Kirk or Consovoy McCarthy. But as long as this cloud hangs over her, there will be some opportunities that will be forever off-limits to Crystal. She’ll never work in Biglaw. She’ll never be a federal judge.

Aren’t those factors worth considering?

LL: Crystal isn’t limited to Cooper & Kirk or Consovoy. We’d love to hire her here at Clare Locke! And why would she want to go to Biglaw when she has these other opportunities on the table? Why would she pick the JV squad when she can play in the NFL?

DL: Ha! Fair enough. Thank you for your time and insights, Libby; I appreciate your wisdom, and I suspect that Crystal will as well.

Readers, what do you think? As always, I welcome your views in the comments.

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