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Lloyd's Op-Eds

Times Union - July 19

"Having it both ways"

Clinton has a tendency to want all sides of an issue to work in her favor

Recently resurrected controversy over Hillary Clinton's 1975 legal defense of a rape suspect is but one volley of distant thunder that will steadily intensify and dominate the debate through Election Day 2016 if she runs for president, as expected.

Vital issues at stake in the election, including health care, the economy, climate change, national defense and homeland security, will take a back seat, as usual, when a Clinton seeks office. The current Clinton controversy, about Hillary's responsibilities as a lawyer, will be one of a hundred swirling around her, ranging from serious, as this one is, to the pantsuit stupidity that she has now wisely pre-empted.

In 1975, while working for the University of Arkansas legal aid clinic, Hillary was appointed by a judge to represent a 41-year-old man charged with raping a 12-year-old girl. As part of a zealous defense — as all lawyers are obligated to provide — Hillary secured a plea deal resulting in one year of jail and four years of probation. The accused had faced a possible sentence of 30 to life.

Criticized for this work, first in the 1980s and recently by the Washington Free Beacon, a neo-conservative "truth squad," Hillary properly pointed out "...I had a professional duty to represent my client to the best of my ability which I did," but she also reported that the judge had denied her request to be relieved of the appointment. Separately, she stated "I had him (the accused) take a polygraph, which he passed — which forever destroyed my faith in polygraphs."

Hillary's request to be relieved and using it to defend herself are unfortunate. Competent and vigorous defense of presumed innocents charged with the worst crimes is the bedrock of American criminal justice. Hillary's polygraph comments are not merely unfortunate but blatantly breach attorney-client privilege and violate the lawyers' code of professional responsibility.

The proper, indeed mandated and noble defense of a rape suspect followed by these explanations, excuses and improper revelations are characteristic of Hillary's pattern of not simply wanting but demanding to have it both ways and claiming that this is virtuous.

Hillary's early career legal representation of Arkansas' indigents was not merely commendable, it was noticed, and she was appointed by President Jimmy Carter as chairwoman of the Legal Services Corporation in 1978, at the legally tender age of 30. And as chairwoman she successfully lobbied Congress to triple the appropriation that ultimately funds civil legal services programs throughout the country. Her tenure was the high water mark in LSC's funding and effectiveness on behalf of poor Americans seeking equal access to justice. Because LSC grantees were so effective at, among other things, suing the government in civil rights, immigration and public entitlements cases, LSC was targeted by the administrations of Presidents Ronald Reagan and George H.W. Bush.

Every year those regimes proposed legislation to stop legal services from suing government agencies in welfare, immigration and voting rights cases and to prohibit them from engaging in any class action litigation. Every such attempt failed until the Bill and Hillary co-presidency. In 1996, with the active participation and acquiescence of Hillary, all those crippling restrictions on legal services were enacted, and the LSC appropriation was reduced by more than 30 percent — a moment widely considered the worst in the LSC's 40-year existence.

When Hillary sought the Democratic presidential nomination for 2008, she constantly cited her work on behalf of LSC to the shock and dismay of legal services lawyers attempting to represent their clients with their hands tied behind their backs and inadequate funding.

When I was a senior adviser to Gov. Eliot Spitzer, I experienced the destructive effects of Hillary's "have it both ways" tendencies. During the Oct. 30, 2007, Democratic presidential primary debate, Hillary flip-flopped several times when asked if she supported Spitzer's decision to allow undocumented aliens to obtain drivers' licenses. The moderator, Tim Russert, pointed out her inconsistencies and in the ensuing shouting match she suffered the first serious setback to a candidacy almost universally expected to be successful. Precisely two weeks later she asked Spitzer to abandon the license initiative, because it and her vacillation were hurting her candidacy. He complied, to the detriment of his stature and the state's best interests.

Hillary's pattern of taking both, and sometimes all, sides in controversies is the antithesis of making "Hard Choices," as she ironically titled her recent memoir. The advent of several seasons during which we relive Hillary's choices, hard, easy and often equivocal, is clearly upon us.

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