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Why is an Arizona State University law clinic defending Kari Lake?

Kari Lake, the GOP Senate hopeful from Arizona, still contests her narrow loss in the 2022 Arizona governor’s race and proclaims herself the state’s “lawful governor.” The former television newscaster also baselessly disputes President Donald Trump’s 2020 election defeat and says Joe Biden is an “illegitimate president.” Her lawyers have been sanctioned by the state supreme court court for making “false factual statements.”

But now she has found a defender in what might seem like an unlikely place: a law clinic at Arizona State University.

In August, some university donors and alumni were flummoxed to see the Arizona State clinic listed as “Counsel for Defendant Kari Lake” on a motion to dismiss a defamation lawsuit filed against her by a Republican election official. In the suit, Stephen Richer, recorder for Maricopa County, alleges that Lake falsely accused Richer of intentionally sabotaging the gubernatorial election to help her opponent, resulting in violent threats against Richer and his family. In its motion for dismissal, the university clinic argues that Richer’s suit is an attempt to squelch Lake’s free-speech rights.

The clinic, which is formally known as the ASU Sandra Day O’Connor College of Law First Amendment Clinic, often takes controversial cases. But this isn’t just any case, and Lake isn’t just any client. By defending her, the clinic has thrust the university into a national debate about the line between heated political rhetoric and defamatory speech that may endanger individuals and undermine public confidence in elections. It’s also a curious partnership for a politician who has railed against the university, which she has described as a “very liberal campus” caught in the clutches of “wokeism.”

The Lake case is a great opportunity for law students to work on a potentially precedent-setting legal matter, said Gregg Leslie, a longtime media lawyer and executive director of the clinic. The clinic’s motion argues that the lawsuit is invalid because of Arizona’s anti-SLAPP law — short for Strategic Lawsuits Against Public Participation. Such laws allow courts to dismiss claims designed to stifle speech. Arizona recently broadened its law, expanding the parameters of who can bring an anti-SLAPP case, and Leslie says the clinic wants to test it.

“It’s just an important case to take,” he said, “and that’s why we took it.”

Caroline Wren, a senior adviser to Lake, said it “absolutely makes sense” for Lake to use the clinic, even though she has private lawyers on her defense team as well. “It’s a free-speech issue, and they’re the free-speech clinic.”

Scott Palumbo, an Arizona State law graduate and major donor to the school, said he was stunned to learn that a public university he attended would represent Lake. He described the politician as “the antithesis” of what Arizona State teaches law students to be.

“She attacked the very foundation of our democracy — exactly what we as Arizona State law students were told not to do,” Palumbo said.

Tom Ryan, an alumnus of the law school who has been critical of Lake, said he was “upset that my school is involved in helping her out.” He continued, “but that’s a personal thing. More importantly, why is this legal clinic being involved with somebody who has way more than enough money, has way more than enough attorneys, on an issue where they’re more likely than not to get their butts kicked?”

The First Amendment Clinic, created at Arizona State in 2018, is funded by a grant from Stanton Foundation, a private nonprofit founded by longtime CBS president Frank Stanton. Leslie said the grant covers the clinic’s overhead, along with his salary and that of a legal fellow. Leslie gets some travel money from the university, he said, but he “can’t think of any university money” going toward Lake’s defense.

Donors like Palumbo, however, argue that the university is providing Lake with the free labor of its law students and other intangible benefits.

“She’s trying to use the gravitas of the university as another pawn to claim she’s a legitimate, credible person,” Palumbo said. “They gave her that opportunity and it doesn’t sit well with every graduate I’ve spoken with.”

Lake has mounted numerous legal challenges related to the electoral outcome, but she has not yet persuaded a court that the election was stolen or that Richer, the Maricopa recorder, did anything wrong. She continues to contest her election loss in court.

For Leslie, the clinic’s director, the case isn’t so much about Lake and her views as her right to express them. “Some of the claims, you might just want to roll your eyes at,” he said. “But on the other hand, people have the right to say, ‘I think we need to look into this more.’”

In a separate dismissal motion, Lake’s private lawyers said that Richer is a public figure and that “being criticized and responding to ‘outrageous’ claims is part and parcel with public life.”

Richer told The Washington Post that he is less concerned with who represents Lake than in holding her accountable for her “repeated specific false statements that do damage to me.”

“At the end of the day,” Richer said, “that is what is going to matter.”

Richer’s lawyers include the faculty director of Harvard Law School’s Democracy and the Rule of Law Clinic; and pro bono attorneys from the nonprofit group Protect Democracy, which describes itself as a “nonpartisan anti-authoritarianism” organization.

Legal clinics, which offer law students practical experience, are ubiquitous in law schools. So is criticism of their work, even from their own universities. Robert Kuehn, who co-chairs an American Association of Law Schools committee on political interference in law clinics, said the institutions “are supposed to exercise independent, professional judgment and render candid advice.” It would be “completely inappropriate,” he said, for a university administrator to overrule or second-guess a clinic taking on a client, no matter how polarizing.

Kuehn, a law professor at Washington University in St. Louis, said he sees “a little hypocrisy” coming from critics of the clinic’s decision to take on Lake. Rejecting Lake “because they don’t like her,” he said, would amount to “viewpoint discrimination.”

Leslie, the director, said that Lake’s private lawyers asked if the clinic would help them press their legal case based on some of its prior work and expertise in First Amendment issues. Leslie said he told Stacy Leeds, the law school’s dean, about the case in July, before signing a representation agreement with Lake’s team. (Leslie would not provide the agreement to The Post, which he said could be privileged, and the university has not responded to a public records request for the document filed Wednesday.)

Leslie said he did not get any pushback from the dean, who “was perfectly fine with it.” Nor did he hear from other university officials, he said.

Leeds declined an interview request, but the law school said in a statement that “the First Amendment protects everyone,” and that the clinic “likewise accepts a wide variety of clients exercising their constitutional rights.”

Apparently caught off guard by the clinic’s decision was the university’s president, Michael Crow, a prominent figure in higher education. In email exchanges with The Post, Crow said he “heard about the case from the media.” When he learned about it, he asked “what is this?” Crow wrote. “The response was that it was a law clinic advancing some new angle of law about free speech for political candidates.”

Crow declined to directly answer whether he had felt blindsided by the decision or if he had expressed displeasure to anyone about it. “Lake is anti-ASU,” Crow said, taking issue with her election denials and noting that she had “called for my removal.” Lake has previously accused the university of “banning conservative thought” and promised to start “cleaning up shop” at ASU if elected governor.

“I don’t believe that the case has to do with her — the insurrectionist supporting person,” Crow wrote, “but rather some aspect of the law. But not being a legal scholar Dean Leeds is really who you should talk to.”

Leeds, who was copied on the email by the university’s president, still declined to talk about it.

This post appeared first on The Washington Post

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