The Kagan Fraud

"Kagan Admits Authorship of ACOG Memo; More Questions Expected

Under questioning from Sen. Orrin Hatch – the first Republican to ask her about the American College Of Obstetricians And Gynecologists partial-birth abortion memo – Elena Kagan admitted her authorship of the memo." Human Events blog, 6/30/10

This type of behavior is why I stopped practicing law. Here we have an attorney who persuaded a group to present a false statement to a court of law. This is behavior which is subject to attorney discipline, and, considering the import of the case(s) in which this false statement was presented, potentially disbarment.

What did Kagen do? Simple. She was presented with a report which had the following language:

"[A] select panel convened by ACOG could identify no circumstances under which this procedure [intact D&X abortion], as defined above, would be the only option to save the life or preserve the health of the woman.” (Good review here, with links to the full documents in PDF format.)

At the time, Kagan was a political hack in the employ of the Clinton Administration. She knew the above language was "disastrous" to any attempt to overturn the federal ban on partial birth abortions -- a Clinton goal.

But, she also knew that the report by the supposedly non-partisan ACOG would be presented to a federal judge who would review it as evidence and give it at least some weight.

So, what did she do? She asked ACOG to change its conclusion. Not change its language. She asked ACOG to delete the disastrous language and substitute the following:

“An intact D+X, [partial-birth abortion] however, may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman, and a doctor should be allowed to make this determination." id.

This isn't a change of "wording," it is a change, in the opposite direction, of meaning. It isn't what ACOG said in its original report; it is essentially the opposite. ACOG could not believe both statements to be true.

Nonetheless, ACOG complied with the request and the altered report was presented to several federal judges and was accepted by them as evidence which was relied upon at least to some degree in making their judgments. (ACOG's role in this fraud is despicable and far reaching, including, apparently, making the assertion that they had not had contact with anyone concerning their report when, in fact, they had met with the Clinton administration (including Kagan) earlier and had (at least) the conversations with Kagan as related herein. But, ACOG ain't up for SCOTUS...)

Her actions (and the actions of the other lawyers complicit in this fraud) violate the Professional Rules of Responsibility on many levels:

"Rule 3.4: Fairness to opposing party and counsel

A lawyer shall not:

(a) unlawfully obstruct another party' s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act;

(b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law; ... "

"Rule 8.4: Maintaining the Integrity of the Profession; Misconduct

It is professional misconduct for a lawyer to:

(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;

(b) ...

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

(d) engage in conduct that is prejudicial to the administration of justice;

..."

This is reprehensible behavior for any lawyer. It is even worse when that lawyer is a "public servant" on the public payroll advising the President of the United States, and especially reprehensible when the intent is to affect public policy through the employment of fraudulent documents.

It is unfortunate, but such behavior is common amongst attorneys. That doesn't mean, however, that when it is rooted out, it should be ignored -- especially when it is perpetrated by a potential Supreme Court Justice!

Someone should immediately file a disciplinary complaint against her. She should be chastised, disciplined and, potentially, disbarred.

Unfortunately, it is more likely that this political hack who is willing to perpetrate fraud on the Judicial System will soon be writing opinions from the highest bench.