HomeNews and OpinionMidwestEffort to discipline Missouri Sen. Josh Hawley ends in failure; critic says ethics process is ‘opaque, arbitrary’
November 17, 2022
Effort to discipline Missouri Sen. Josh Hawley ends in failure; critic says ethics process is ‘opaque, arbitrary’
An effort to discipline Sen. Josh Hawley, R-Mo., for his statements about the 2020 presidential election has received a final rejection from state legal authorities, leaving the man who led the effort feeling “ripped off.”
In two recent letters to Alan B. Hoffman, the retired St. Louis lawyer who led the group seeking punishment, the Advisory Committee of the Supreme Court of Missouri reported it had decided not to pursue the matter and was closing the file. The rejection has not been previously reported.
The group led by Hoffman is an ad hoc collection of 16 individuals, most of them lawyers and St. Louisans, and also including a few prominent Democrats, such as former St. Louis Mayor Vincent Schoemehl Jr. and attorney Jane Dueker. Attorney Mark Pedroli, a St. Louis lawyer with a specialty in government-transparency issues, is also a member.
In February, 2021, the group filed a complaint against Hawley with Alan Pratzel, the chief disciplinary counsel of the Missouri Supreme Court, who by the Court’s rules is in charge of investigating alleged violations of legal misconduct in Missouri.
The group cited Hawley’s Dec. 30, 2020 claim on Twitter that “some states, particularly Pennsylvania, failed to follow their own state election laws” and there had been an “unprecedented effort of mega corporations, including Facebook and Twitter, to interfere in the election.” The group also took note of Hawley’s fist-pump to the crowd outside the Capitol on Jan. 6, which it said had encouraged the violence that followed.
Hawley’s statements, the complaint said, “were false and known by Senator Hawley to be false at the time made or were made with reckless disregard for truth or falsity.” And as a result, the group said, they violated the oaths Hawley took as a Senator to uphold the U.S. and Missouri Constitutions and to practice law in Missouri.
But after nearly 18 months, Pratzel informed the group this past August that he had found “insufficient probable cause to believe that Senator Hawley was guilty of professional misconduct that would justify discipline ….” Hawley’s public statements, he added, “were constitutionally protected.”
The group promptly took the only recourse it could under the state’s disciplinary system, appealing to the Advisory Committee, which is made up of 12 volunteer members, most of them lawyers, appointed by the Supreme Court. A St. Louis lawyer, Dorothy White-Coleman, serves as chair.
In its appeal, the Hoffman group asserted that Pratzel had not offered reasons for his decision – no “analysis of the facts or applicable law … to support these conclusions.” It also argued that if Pratzel were basing his Constitutional protection argument on the so-called “Speech and Debate Clause” in the U.S. Constitution, he was mistaken. That clause protects members of Congress from being sued for their speech in connection with their legislative activities, not for speech that is “political in nature rather than legislative,” the group argued.
But on Nov. 3, the Advisory Committee wrote Hoffman that after having “carefully considered your complaint,” it had “concluded that it agrees with the decision to close the file…. It does not appear that further investigation will result in a different conclusion.” The six-sentence letter provided no additional specifics. It was signed by Melinda J. Bentley, who for the last decade has served as the Committee’s Legal Ethics Counsel.
The next day, Hoffman sent the Committee a new letter noting that Sen. Lindsey Graham of South Carolina had attempted to use the “Speech and Debate Clause” to protect him from a subpoena to testify to a Fulton County grand jury investigating efforts to disrupt the administration of the 2020 elections in Georgia. The Graham case, Hoffman’s letter said, was a perfect parallel to Pratzel’s apparent “conclusion that Senator Hawley’s actions complained of herein are constitutionally insulated from ethical scrutiny.” But the U.S. District Court for the Northern District of Georgia had denied Graham’s request and then the U.S. Court of Appeals had rejected his appeal, Hoffman’s letter noted. In addition, the U.S. Supreme Court refused to block Graham’s testimony.
On Nov. 7, Hoffman sent a second follow-up letter, this one asking the Advisory Committee to provide specifics about its reasoning. “Complainants … request the Advisory Committee to set forth its analysis of the facts and law leading to its determination that Senator Hawley’s actions … were constitutionally protected and its November 3 denial of the Complaint herein on that ground.”
On Nov. 10 Bentley responded with a new letter reiterating that it had decided against opening a disciplinary investigation and was closing the case. The letter, four sentences long, made no mention of the Speech and Debate Clause issue and again offered no specifics concerning reasoning. It said the information Hoffman had requested Nov. 7 was “confidential, per Rule 5.31.” That rule says that “all proceedings and the records of all proceedings” in the Supreme Court’s investigations of ethical conduct shall be confidential unless otherwise provided.
Hoffman said he found it “frustrating and discouraging” that his nearly 22-month encounter with the state’s professional discipline process had ended in “such an unsatisfactory and dismissive fashion. I feel ripped off,” he said.
“It would be different,” he continued, “if the Chief Disciplinary Counsel and the Advisory Committee of the Supreme Court of Missouri had provided a reasoned decision or decisions based on the facts (which were not in dispute) and the law.”
But the Advisory Committee, he continued, didn’t even explain whether it was closing the case because it agreed with Pratzel that Hawley’s acts were “constitutionally protected” or for some other reason. He is left still wondering, he said, what the true reason was.
“The system for enforcing the ethical rules governing Missouri lawyers appears to be opaque, arbitrary, and lacking in meaningful oversight and accountability,” Hoffman said. “That’s a disservice to the citizens of this State. It would seem that reform is needed.”
Bentley did not respond to voice mail messages left on her office phone Tuesday evening and Wednesday morning.
Hawley defended his 2020 election challenges in a January, 2021 oped in which he said he objected to Pennsylvania’s results because it allowed universal mail-in voting during the coronavirus pandemic, which he said violated the state’s constitution. Last summer the Pennsylvania Supreme Court held that the absentee voting law was in line with the state constitution.
Meanwhile, a generally similar ethics complaint growing out of the 2020 election is proceeding on a parallel path against now Sen.-Elect Eric Schmitt. That case was filed in September with the Office of Disciplinary Counsel by The 65 Project, a nonprofit group seeking to “protect democracy from abuse of the legal system by holding accountable lawyers who engage in fraudulent and malicious attempts to subvert American democracy.” Michael Teter, managing director, told the GJR his group has not yet received a response.
Paul Wagman is a former Post-Dispatch reporter and FleishmanHillard executive who is now an independent reporter, editor and communications consultant. He wrote an investigative report earlier this year for GJR on the involvement of St. Louis Republican officials in the election denial myth.