I suspect that the 9/11 Commission public hearings introduced most people to Jamie Gorelick. In contrast to ineffective questioners such as Bob Kerrey, Jim Thompson, or Richard Ben-Veniste, Gorelick—and fellow commissioner Tim Roemer—proved an incisive cross-examiner, someone with impressive knowledge of the myriad issues associated with the commission.
How, then, to explain the contrast between the brilliant Gorelick of the commission hearings and her intellectually pedestrian motions in the civil case? Partly, of course, it’s a matter of role: as a 9/11 commissioner, Gorelick was seeking the truth; as a lawyer in the civil case, she’s representing a client.
Even given her role as an advocate, though, how does this Gorelick passage advance her client’s legal case?
A patient was brought to the hospital claiming an atrocious deed had been done to her; the hospital staff rendered her assistance, as they should have done; and subsequently, when the police officers and prosecutor carrying out the investigation asked a hospital employee for information, the employee cooperated. There is nothing tortious, much less a violation of civil rights, in this conduct.
[The claim, of course, is that the “hospital employee,” former SANE nurse-in-training Tara Levicy, provided false and misleading information when she “cooperated,” and that her supervisors either looked the other way or simply failed to perform their duties.]
Or how does this passage help Gorelick legally?
[The lacrosse players] contend that Duke and its employees violated their legal rights by providing the police with information about the alleged rape during the investigation. They also contend that the University had a legal obligation to quell public debate about the alleged rape. In essence, Plaintiffs argue that the University had a legal duty to stand between themselves and the prosecutor, and to try to prevent the police and prosecutor from investigating them for a very serious crime.
[Nothing even resembling such a claim was ever made.]
Federal judges have a reputation as no-nonsense jurists; it’s hard to see how such transparently absurd descriptions of the case will enhance Gorelick’s credibility.
Nor is there any obvious legal explanation—given that motions to dismiss assume all plaintiffs’ facts as true—for Gorelick’s strange assertion that the Group of 88 enjoyed an academic freedom exception from complying with Duke’s anti-harassment policies; or her claim that Levicy actually have given honest testimony, despite the wording to the contrary of the Attorney General’s report.
Such passages do, however, serve another interest of Gorelick’s client: maintaining the narrative of the case that Duke has presented to its alumni. Some alumni followed the case closely: recall the 88-cent donations to the alumni fund; or Jay Bilas’ public demand that Richard Brodhead and Bob Steel resign.
But most alumni (unsurprisingly) know about Duke’s response to the case via communications from Duke and from the alumni magazine, whose narrative suggested that after a brief initial difficulty (and perhaps an extremist statement from a scattered professor or two), the university did everything it could to bolster the players. In this narrative, the lacrosse players are nothing more than gold-diggers, out to get money from the university that stood behind them in their time of trial.
This narrative was relayed effectively when Charlie Rose interviewed members of the Duke family, in a July 4 broadcast.
CHARLIE ROSE: Let me talk about today.
has gone on to be a great university. Duke University
MARY DUKE BIDDLE TRENT SEMANS: It really has. It really has.
CHARLIE ROSE: You’ve both contributed to that, the endowment and the trustees.
MARY DUKE BIDDLE TRENT SEMANS: Uncle Buck, grand pa, it is what they wanted.
CHARLIE ROSE: Uncle Buck is James Buchanan Duke.
MARY DUKE BIDDLE TRENT SEMANS: That’s right. I’m telling you, I’m sure they would be amazed at how fast it has grown . . .
CHARLIE ROSE: So Duke went through this great difficulty with the problems with lacrosse.
ANTHONY DREXEL DUKE: Yes.
CHARLIE ROSE: And you’ve got some lawsuits going. Has the university -- how has it handled this? What damage has it done to the university?
MARY DUKE BIDDLE TRENT SEMANS: I don’t think a whole lot. The giving to the university has not been arrested in any way. It hasn’t gone down. We had more applications, I think, than ever. And that means something. We have very loyal alums.
CHARLIE ROSE: People still want to go.
MARY DUKE BIDDLE TRENT SEMANS: Yes, they do.
ANTHONY DREXEL DUKE: When I go down there and I take a bunch of them out for dinner and so forth, it’s almost as though it never happened among the students, current enrollment.
CHARLIE ROSE: Even though there are lawsuits.
MARY DUKE BIDDLE TRENT SEMANS: They all talk about it a little bit.
CHARLIE ROSE: Fingered a lot of people that they thought should have done this or that.
ANTHONY DREXEL DUKE: Well, everybody has got their different opinions on that. But I find that student -- among the student body, they are unaffected. They love the university as much as people who went before this incident. And I think it’s going to come through. I personally am very fond of Dick Brodhead.
CHARLIE ROSE: He’s the new president they got from Yale.
MARY DUKE BIDDLE TRENT SEMANS: That’s right.
ANTHONY DREXEL DUKE: And he’s a heck of a good guy. I think that he was caught a little bit as a young president, as a new president, I should say. And maybe he didn’t take the right advice for a few days or something.
CHARLIE ROSE: But he got control.
ANTHONY DREXEL DUKE: He got control. But there were some problems on the way towards getting control.
MARY DUKE BIDDLE TRENT SEMANS: And what a dreadful thing to happen to somebody who has just come. It is just an awful thing.
ANTHONY DREXEL DUKE: Anyway.
“Maybe he didn’t take the right advice for a few days or something.” “He got control.”
When, exactly, did Brodhead get control?
- In mid-April 2006, when he declined to investigate allegations brought to him that Duke professors were abusing their classroom authority in dealing with the lacrosse players?
- A few days later, when he responded to the arrests of Reade Seligmann and Collin Finnerty by saying, “Whatever they did was bad enough”?
- In June 2006, when he issued an open letter minimizing the (by then massive) evidence of the players’ innocence?
- In summer 2006, when he wrote to Friends of Duke that a trial would give the falsely accused students their chance to be “proved innocent”?
- In fall 2006, when he used his interview with 60 Minutes to denounce the lacrosse players for their “highly unacceptable behavior”?
- In the spring 2007 semester, when he declined to enforce the Faculty Handbook against Karla Holloway (who distributed malicious rumors about Duke students via e-mail) or Grant Farred (who publicly accused Duke students of perjury)?
- In April 2007, when he wildly asserted, “The Group of 88 are a group of professors who signed a petition to assist students who felt threatened.”
The Duke family didn’t say—and Rose, unfortunately, didn’t press them—on exactly when in the timeline above Brodhead “got control.” Their view of the case must have left them mystified as to why Duke settled at least three lawsuits (from the falsely accused players, from former coach Mike Pressler, and from the Dowds) that flowed from the administration’s conduct.
The Duke family’s interview raises another question: if, during this period, Brodhead “didn’t take the right advice,” from whom was he getting this wrong advice? That’s a question that, doubtless, Jamie Gorelick would prefer never be answered.