An Open Letter To Crystal Clanton

Here’s my advice to the controversial clerk—if she didn't send an ‘I HATE BLACK PEOPLE’ text, and if she did.

‘Crystal Clanton wrote WHAT?!?!’ (via Getty Images).

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Here’s my promised magnum opus on the Supreme Court clerk hiring controversy that everyone is talking about: Justice Clarence Thomas’s hiring of Crystal Clanton, announced last week by her alma mater, Scalia Law. How often does a SCOTUS clerk hire generate New York Times, Washington Post, New Yorker, and Slate articles?

I’m not surprised by Clanton’s hiring, having predicted it back in 2022. But now that it’s official, I have some thoughts.

First, I’m going to provide a quick recap of the whole saga. Second, I’m going to offer advice to Clanton, in the form of an open letter to her. If you’re familiar with the background, feel free to skip ahead to the letter.

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The Crystal Clanton drama is long and convoluted. Here’s the CliffsNotes version, which admittedly omits a lot of details and nuance.

In a pre-law-school job at Turning Point USA (TPUSA), a nonprofit that promotes conservative politics on high school and university campuses, Clanton allegedly sent text messages to a colleague that said, among other things, “I HATE BLACK PEOPLE. Like f**k them all…. I hate blacks. End of story.” These messages—apparently sent in November 2015, when Clanton was 20 years old—came to light in a December 2017 article in the New Yorker by Jane Mayer, who obtained screenshots. (One such screenshot is included in Mayer’s follow-up piece published yesterday.)

When Mayer reached out to her about the texts in 2017, Clanton—who was no longer at TPUSA by the time the article came out—wrote as follows: “I have no recollection of these messages and they do not reflect what I believe or who I am and the same was true when I was a teenager.” This appears to be her only public statement about the texts. Clanton has also been accused of making other racist comments, including sending an anti-Arab Snapchat; she has not commented on these other allegations, as far as I know.

In October 2021, Kathryn Rubino of Above the Law reported that Clanton had landed a prestigious clerkship with Chief Judge William Pryor (11th Cir.)—a prominent conservative jurist, Supreme Court shortlister during the Trump Administration, and top SCOTUS feeder judge. Outrage ensued. Many wondered why such a plum opportunity should go to an alleged racist—and whether hiring someone like Clanton calls into question the integrity and impartiality of the federal judiciary.

In November 2021, seven House Democrats sent a letter about Clanton’s hiring to Chief Justice John Roberts and Judge Charles Wilson of the Eleventh Circuit (who was Acting Chief Judge for purposes of this issue, with Chief Judge Pryor recused). The letter expressed “grave concern regarding the news that [Chief Judge Pryor] and Judge Corey Maze of the Northern District of Alabama have hired an individual with a history of nakedly racist and hateful conduct as a future law clerk in their chambers.”

The letter gave rise to a complaint against Chief Judge Pryor and Judge Maze under the Judicial Conduct and Disability Act, and that complaint was transferred to another circuit for investigation. Transfer was the right thing to do, since it involved a complaint against a circuit judge, as opposed to a bankruptcy, magistrate, or district judge.¹

Chief Justice Roberts sent the complaint to the Judicial Council of the Second Circuit, where it landed on the desk of Chief Judge Debra Ann Livingston. Under the Act, Chief Judge Livingston had a choice: she could investigate herself, or if she viewed the complaint as more serious, she could convene a special committee.²

Chief Judge Livingston handled the matter on her own. She gathered evidence, including letters from Chief Judge Pryor, Judge Maze, and Justice Thomas. Justice Thomas sent a letter to Chief Judge Livingston in which he wrote, “I know Crystal Clanton, and I know bigotry. Bigotry is antithetical to her nature and character.”

How was Justice Thomas able to vouch for Clanton back in 2021, since she had yet to clerk for him? It so happens that Justice Thomas’s wife Ginni hired Clanton after she left TPUSA—and she even lived with the Thomases for about a year during this period. And it was actually Justice Thomas who recommended Clanton for a clerkship with Chief Judge Pryor (a reversal of roles, since usually Chief Judge Pryor is recommending clerks to Justice Thomas).

In December 2021, Chief Judge Livingston dismissed the complaint. You can read her six-page order, issued in January 2022, at Above the Law, but I’m going to rely on a helpful summary by Bill Rankin for the Atlanta Journal-Constitution:

In her ruling, Livingston cited one of the Turning Point USA’s executives who said Clanton treated everyone with “kindness, respect and fairness.” This person also said “the media reports are not accurate,” Livingston wrote….

In his letter [to Livingston], Pryor said Thomas told him that Clanton “was a victim of a pernicious attempt to portray her as a racist.” Thomas also said Turning Point USA had conducted an internal investigation and found that a “rogue employee” had compromised the accounts of several co-workers. After discovering this, Turning Point fired that employee, Thomas said.

The reason Clanton never spoke out against the allegations is because she is bound by a non-disclosure agreement [NDA] with her former employer, Pryor wrote.³ Upon learning this, Pryor said, he reached out to Charlie Kirk, founder and executive director of Turning Point, and asked him to explain what had happened. In his letter to the court, Pryor quoted a passage from a letter Kirk had sent to him in response.

“The media has alleged that Crystal said and did things that are simply untrue,” Kirk wrote. “I have firsthand knowledge of the situations reported on and I can assure that the media has made serious errors and omissions. The sources of these reports are a group of former employees that have a well-documented desire to malign Crystal’s reputation.”

The employee who was fired had “created fake text messages to be used against other employees,” Kirk wrote.

To date, however, we have never received any details about this “group of former employees” supposedly out to get Clanton, including the ex-employee who allegedly “created fake text messages to be used against other employees.” So we’re left with significant doubt over the accuracy of this explanation (for reasons set forth in Jane Mayer’s latest New Yorker piece and Ruth Marcus’s new Washington Post column, among other places).

This “she was framed” explanation also didn’t persuade Representatives Jerrold Nadler (D-N.Y.) and Hank Johnson (D-Ga.). In March 2022, they sent a letter to the Judicial Council of the Second Circuit and the Committee on Judicial Conduct and Disability, in which they criticized the narrow scope of Chief Judge Livingston’s investigation—which focused on whether the judges conducted adequate due diligence before hiring Clanton, not the truth of the underlying allegations that she sent racist texts. The legislators’ letter called for the appointment of a special committee to look into the matter.

In response to the Nadler and Johnson letter, the Committee on Judicial Conduct and Disability reopened the matter in July 2022, ordering the Second Circuit Judicial Council to appoint a special committee. But Chief Judge Pryor and Judge Maze objected, asserting that the Committee lacked the authority under the judicial-misconduct statute to direct a circuit’s Judicial Council to reopen a matter.

Their arguments prevailed: in October 2023, citing guidance it obtained from the Executive Committee of the Judicial Conference, the Second Circuit Judicial Council “unanimously decline[d] to reconsider the Council’s order of January 13, 2022.” The order itself is no longer online, but it’s discussed and quoted in this National Law Journal piece by Avalon Zoppo and this Business Insider piece by Jack Newsham (which report that the order was spare and conclusory, not disclosing the guidance provided by the Executive Committee).

And this takes us to the present. Justice Thomas hired Crystal Clanton to clerk for him during October Term 2024, and she’ll start at One First Street this summer.

Now, here’s my open letter to Crystal Clanton.

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Dear Crystal,

Congratulations on your clerkship with Justice Clarence Thomas. Clerking for the Supreme Court is a privilege and an honor, and you must be very proud.

A SCOTUS clerkship is frequently a launching pad for a distinguished legal career. But your progress through the profession could be hindered—and understandably so—by the widely publicized allegation that around nine years ago, you sent text messages containing the following words: “I HATE BLACK PEOPLE. Like f**k them all…. I hate blacks. End of story.”

These are, quite obviously, reprehensible sentiments. And I’m guessing they are views you don’t currently hold, especially since you’re about to spend a year clerking for America’s Top Black Jurist. So you need to clear your name and recover your reputation.

With all due respect, your handling of the situation thus far has been… suboptimal. Perhaps you have not been well-advised. I’d like to help.

There are two possibilities here, and you know which one is true: either you sent the racist texts, or you did not send the racist texts.

Let’s start with the scenario in which you did not send any racist texts, Snapchats, or other communications. Instead, you were framed by a malicious former colleague or colleagues at Turning Point USA (TPUSA), as claimed by your former boss, TPUSA founder and executive director Charlie Kirk.

As of now, to the best of my knowledge, your only public statement on the matter is your 2017 email to Jane Mayer of the New Yorker: “I have no recollection of these messages and they do not reflect what I believe or who I am and the same was true when I was a teenager.” While various allies or surrogates have spoken out on your behalf, you have stayed silent all these years, except for the email to Mayer.

If you’ll forgive me for using a legal term of art… WTF?!?!

You have “no recollection of these messages”? I’m sorry, but that is not how most people would react if falsely accused of making incredibly offensive, racist statements. Here’s what I’d say:

I can assure you, with 100 percent confidence, that I have never in my life sent any texts declaring that “I HATE BLACK PEOPLE.” I will swear, affirm, or do whatever else you want me to do to assure you of this fact. I will sign an affidavit. I will take a polygraph test (yes, I know they don’t work). I will fly to the Vatican, look the Pope in the eye, and tell him, “I have never sent an ‘I HATE BLACK PEOPLE’ text.”

If anyone claims otherwise, that is an absolute, disgusting lie. They should be prepared for the Mother of All Defamation Suits (and I know a lot of really good defamation lawyers, including several who have appeared on my podcast).

Given the gap between your statement and mine, you can see why many people view yours as a weirdly worded, mealy-mouthed, half-hearted non-denial. And I’m not talking just about hard-core left-wingers who hate you and your future boss; I’m talking about moderate, open-minded, persuadable people, too.

Since news of your hiring by Justice Thomas broke, I’ve heard from several defenders of yours. They insist that you did not send any racist texts, claiming that such conduct is utterly inconsistent with the person they know you to be. When I pressed them on why you sent such a mild-mannered response to Mayer if you are truly innocent, one source chalked it up to what they described as your “demure” personality, and another suggested that you’re being circumspect because of your claimed NDA with TPUSA. (I refer to your “claimed” NDA because there is some dispute over whether any such NDA exists.)

If it’s true that you never sent any racist texts, the time has come to issue a vigorous denial that leaves no room for doubt (and I’m happy to publish your denial on Original Jurisdiction, if you want to give me that scoop). According to Mayer’s latest New Yorker piece, when you were asked directly back in 2017 if you sent the racist texts, you declined to answer. But I’ve heard from sources who claim that you now deny sending them, at least in private conversations. Assuming that this is the truth—and you’re already saying it privately, which might violate your supposed NDA—you might as well do so publicly.

You don’t have to be as over-the-top as my sample statement, but you do need to be clear and direct. Something like this would suffice: “I unequivocally, categorically deny sending any text declaring that ‘I HATE BLACK PEOPLE’—and to say otherwise is defamatory.”

But at this late stage, given everything else that has come out, a mere denial is unfortunately not enough. You also need to give chapter and verse on any ex-colleague or ex-colleagues who framed you. Right now, because this claim is so bare-bones, it sounds like a whitewash to many people—perhaps an effort by Charlie Kirk to “do a solid” for Justice and Mrs. Thomas, or maybe to curry favor with them.

If this story is true, and you were falsely painted as a racist, then you need to name some names. You need to identify the supposed “rogue employee(s)” who made it look as though you sent racist texts. You then need to provide receipts—overwhelming documentary evidence proving the existence of The Plot Against Crystal Clanton (which, again, I’m happy to publish in these pages). Ideally you’d get support from Charlie Kirk and TPUSA in this endeavor.⁴

Now let’s turn to the tougher scenario: you did send the “I HATE BLACK PEOPLE” texts. Even some of your defenders—like Professor Steven Lubet, author of a Slate piece titled Let Crystal Clanton Move On—assume you did. What should you do then?

Come clean. Confess error. Admit that yes, you did send the racist texts. And then apologize to the world, without reservation or restraint.

Explain how ashamed you are—and how shame is what prevented you from confessing when initially caught. When Jane Mayer from the New Yorker reached out to you in 2017, you panicked. You were 20 years old, you were not being well-advised (or advised at all), and you lied—in a really dumb way. And you’re sorry and ashamed for the lying as well.

And then try to explain your former racism, if you have an explanation that is both compelling and true (because I’m not telling you to make anything up; lying has gotten you into enough trouble already). Did you grow up in a racist community? Were you raised by a racist family? We don’t get to pick our families, so there’s no shame in having racist relatives; even Barack Obama had a racist grandmother.

But make clear that you say all these things—that these events took place almost a decade ago, that you were a clueless 20-year-old, that you grew up in a racist family or community—by way of explanation, not excuse. Today, you realize the wrongness of your former racism, you are deeply ashamed, and you are sorry beyond words.

And then pledge to take action. Publicly promise that after your clerkships are over, you will do whatever you can as a practicing lawyer—maybe in pro bono work, or better yet, in a full-time position—to fight the scourge of racism.

How will the world react if you apologize? Haters gonna hate: some folks on the left will continue to condemn you, say “I told you so” to anyone who ever defended you, and dismiss your apology as “too little, too late.” They will also accuse Charlie Kirk, Judge Pryor, and Justice Thomas of lying (although the judges could argue that they were misled by Kirk, not knowing participants in a cover-up).

But if you admit your wrongdoing, explain that you’re more pained and ashamed about this than anyone, and apologize, I think it’s fair to ask your critics: “What more do you want from Crystal Clanton? Would you want her not to have a change of heart? Would you prefer her to be a lifelong racist, instead of a reformed one?”

Sadly, the honest answer to these questions—at least from some on the left—might be, “Yes, we prefer that Crystal Clanton remain racist, which enhances our ability to brand all conservatives as racist.” But if you confess and ask for forgiveness, many moderates—myself included—will be willing to give you a second chance. And we’ll be joined even by some liberals like Professor Steven Lubet, an outspoken critic of your future boss, who wrote as follows at Slate:

Character attacks have been a recurrent feature of American politics since at least the time of Thomas Jefferson…. Office seekers know that character attacks come with the territory. But that should not be true of young people who find themselves involuntarily embroiled in controversies, and it is especially unfair when the attacks are based on youthful incidents, from years earlier, that have dubious bearing on whom they have become.

One reason I’m especially willing to give you a second chance is that I can relate to your plight, although on a much smaller scale. When I was in college, I was the resident conservative firebrand at the Harvard Crimson, and I wrote a number of offensive columns—including some making fun of gays and lesbians. I’m ashamed of many of these columns now. But again and again, I’ve owned up to them—which is why I’m linking to them again here—and I’ve apologized. I do so again today.

I believe these writings were the product of my internalized homophobia, as a kid who grew up in a conservative, Catholic family and community, in the 1980s and 1990s. But I say this by way of explanation, not excuse. I’ve said it before, and I’ll say it again: I’m sorry. And in the years since I came out, I’ve tried to be a voice for LGBTQ+ rights (especially in trying to normalize gay parenting, which is why I speak frequently in these pages about my kids). I feel so much better after acknowledging and apologizing for my past wrongdoing—and you will too.

A number of years ago, I sent someone a thank-you note. It was a very belated note, so I apologized for its tardiness. This person responded with words I’ll always remember: “It’s never too late for gratitude.”

I’ll leave you with these words, Crystal: it’s never too late for the truth. And it’s never too late to apologize.

Once again, congratulations on your clerkship with Justice Thomas, and best of luck in the years ahead.

Sincerely yours,
David

[UPDATE (3/3/2024, 7:38 a.m.): This turned out to be my most controversial column since my commentary on the university presidents’ testimony at the antisemitism hearing. Some of you really liked it, and some of you really… didn’t like it. For common critiques of this piece and my responses, please check out the comments section. Thanks to everyone who shared their feedback, both positive and not so positive.]

[UPDATE (3/7/2024, 3:35 p.m.): For a very different viewpoint from my own, please see A Counterpoint On Crystal Clanton—From A Leading Libel Lawyer. The lawyer in question is Libby Locke of Clare Locke—one of the nation’s top defamation lawyers, an expert in both crisis- and reputation-management—and she argues that Crystal Clanton should ignore the haters.]

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1. It would not have been appropriate for Judge Wilson to investigate and rule on an ethics complaint against Chief Judge Pryor—a fellow circuit judge, with whom he has an ongoing professional relationship (and maybe even a friendship, as longtime colleagues often do).

In contrast, it was not the right thing for Chief Judge Kimberly Moore of the Federal Circuit to investigate and rule on the complaint against her longtime colleague, Judge Pauline Newman—with whom she has had, shall we say, a complex relationship over the years.

2. To learn more about the ins and outs of the Judicial Conduct and Disability Act, listen to Professor Arthur Hellman’s remarks on this webinar about the controversy over Judge Pauline Newman of the Federal Circuit.

3. The existence of an NDA preventing Clanton from denying that she made racist statements is disputed. According to Jane Mayer’s New Yorker piece from yesterday, “If there was an NDA, Clanton also didn’t mention it to a lawyer to whom she referred my questions in 2017. The lawyer, Robert Grabemann, told me that he hadn’t prepared an NDA for her and wasn’t aware that one existed. Stephen Gillers, a law professor at NYU who is considered a leading authority on questions of judicial ethics, said the claim that an NDA prevented Clanton from telling the truth earlier ‘is simply not credible,’ adding, ‘I’ve seen my share of NDAs, and I can’t imagine one that would forbid a person to deny making racist statements.’”

4. It has been suggested to me that you might not get any help from Charlie Kirk or TPUSA in clearing your name because they might have entered into non-disclosure/non-disparagement agreements with the “bad apple” ex-employees. The claim here is that there’s a web of interlocking NDAs that are trying to prevent “mutually assured destruction”: Kirk and TPUSA have tons of dirt on the ex-employees, and the ex-employees have tons of dirt on Kirk and TPUSA (which was clearly a problem-plagued workplace). So they’ve all agreed to remain silent—and have no incentive to clear your name, since it would inflict massive reputational damage on all of them.

But any agreements between Kirk, TPUSA, and the ex-employees aren’t binding on you. And to the extent that you have your own NDA with TPUSA, I’d urge you to just go ahead and breach it. Based on Kirk’s current posture of trying to help you, perhaps because he wants to stay on the good side of the Thomases, it seems unlikely that TPUSA would sue you for breaching the NDA.

And you shouldn’t think of breaching any NDA as somehow immoral or unethical. You went to Scalia Law, a hotbed of law and economics, so presumably you’re aware of efficient breach. In this case, breaching the NDA is the most rational course of action for you—and ethical as well, I’d argue, since it actually advances the truth.

(A footnote to this footnote: even the late Professor Charles Fried, who argued in Contract As Promise that contracts have a strong moral component, walked that back somewhat—another example of his commendable willingness to change his mind.)