NRO Outs Kos’ Armando II

Since this seems to be “DailyKos controversy” day at OTB, I’d like to revisit an issue that no doubt most of my readers have moved beyond, to the extent they much cared to begin with. In the wee hours of the morning June 9, I wrote an extensive post detailing a controversy stemming from NRO media columnist Stephen Sprueill’s “outing” of Daily Kos dairist Armando’s identity.

The morning of the 14th, I had a very cordial email exchange with Armando followed by an equally cordial one with Spruiell. It seems to me that both men legitimately believe they have behaved perfectly honorably and are befuddled by the position of the other. I started the post you’re now reading, never quite finished it because there are a lot of threads to follow, and it wound up orphaned in my draft folder. I’m finishing and posting it now mostly to achieve closure on it, having promised Armando that I would do so.

Armando wrote a thorough post at Swords Crossed attempting to debunk the charges made by Spruiell. First, he offers plausible evidence as to the identity and motivations of Spruiell’s anonymous tipster, whom he identifies only by pseudonym. The behavior described is both creepy and despicable.

Spruell did no digging of his own but instead relied on the harassment campaign Flunknut had been peddling for nearly two weeks. Spruell, with the vision of a Yearly Kos gotcha dancing in his imagination, failed to understand that I did not want such information published.

I’m rather sure Spruiell knew damned well that Armando wanted his identity secret. As to the lack of digging, I’m sure he clicked the supplied links and confirmed the connection between the pseudonymous “Armando” and the attorney of the same first name and photograph.

Spruell, for some unknown reason, believed I would be embarrassed by my work. I am a proud of ALL my work. I am proud of all my blogging.

That’s almost surely true. He’s a partner in a firm, has extremely prestigious clients, and was a front-page blogger on the most trafficked and influential political blog in existence. The samplings of Armando’s writings I’ve seen are quite lucid and, contrary to my impression of Daily Kos, argued with the reasoned skill one might expect of a seasoned attorney.

The reason Spruiell might have thought Armando would be “embarrassed,” however, is hardly “unknown.” Indeed, Armando notes it in the first of many posts on the subject at Swords Crossed: Big corporations generally and Wal-Mart and the pharmaceutical industry in particular are hated by many in the Netroots.

As to the merits of the case, I’m afraid that I come down to the conclusion that I frequently chided undergraduates for on their term papers: “Both sides have some good points.” With somewhat more nuance, I’d say that Armando and Spruiell are talking past one another because they simply can’t agree on basic premises.

The main charge made against Armando by Spruiell is failure to disclosure professional conflicts. In the initial post, he writes,

During his time filling in for Kos as the “front page diarist” he wrote a number of pro-corporate articles, of course without disclosing that he is a corporate attorney promoting these same issues for his clients. For example, in this post he takes the pro-corporate position that modern anti-trust law is based on activist judges’ rulings and not as the law as written. He fails to mention that he recently represented Wal-Mart in an anti-trust capacity in Puerto Rico.

Following my email exchange with Armando, I actually read the “this post” link in detail with the benefit of a full night’s sleep. I have to agree with him that there is no reason he needed to disclose his Wal-Mart relationship here. The post is a lucid but very dry, academic recitation of the evolution of judicial application of the Sherman Anti-Trust law. That the courts’ view of the law is arguably “pro-corporate” when compared with the language of the law is undeniable, but the post is hardly an advocacy piece. Indeed, it could well have been a Slate “Explainer” article.

That said, I wouldn’t go so far as to say that “Stephen Spruiell of National Review Is A Liar” for thinking differently. His contention is that bloggers are journalists and have a duty to divulge any potential conflict, regardless of how small. While I agree with Spruiell–and disagree with Armando–that bloggers are journalists (although generally not “reporters,” there’s a difference) it does not follow that conflicts that are distant and theoretical need to be disclosed on a per-post basis. As noted in my initial post, “I routinely disclose—on a per post basis—potential conflicts with even my wife’s employer if I’m aware of them.” I don’t, however, mention my wife’s firm, or my status as a DoD contractor, unless I believe it has specific relevance to what I’m writing about.

In that exchange, Spruiell writes, “If Armando doesn’t think that writing about antitrust issues without informing readers that you represented Wal-Mart in an antitrust case is a failure to disclose, I guess we’ll have to agree to disagree on that one.” This prompts Armando to retort, “Stephen Spruiell of National Review Is Also Stupid.”

Sprieull, do you know anything about ethics? Please consult an expert on the subject. According to Spruiell, every lawyer has a conflict if he writes about the law. ANY law. This is so stupid as to be beyond belief. But even if that were the actual standard, I still had no conflict as all I did was provide an uncontroversial recap of how antitrust law has developed. Writing an accepted FACT surely can not be a conflict can it Mr. Spruiell? Is noting the existence of a case called Marbury v. Madison a conflict? Ridiculous.

While I take Armando’s point here, he’s constructing something of a strawman in addition to his ad hominem and poisoning of the well. Sprueill is arguing that, if one represents a client in anti-trust cases, one has a conflict when writing about anti-trust cases. Again, I disagree with him–and agree with Armando–that the specific post on the subject in evidence is highly non-controversial and therefore “disclosure” is at best optional. Having a contrary opinion, however, does not constitute stupidity, let alone “mendacity.”

Indeed, one of the posts Armando cites in his defense includes this paragraph:

Yeah, Stephen, he had some serious conflict-of-interest issues. And yeah, he isn’t very good at addressing them. You know what, though? That’s his hell to deal with. His private hell. And you went and publicized it. Hard to imagine why Armando’s bitter.

Given my skepticism over the anti-trust “conflict,” I emailed Sprueill and asked for other examples. He responded,

I do have other examples, although I think in the antitrust post he still should have disclosed that he had recently worked on a major antitrust case. That seems like a common-sense disclosure to me.

But take Armando’s post from last June, in which he first downplayed any possible connection between the drug thimerosal and autism, and second wrote the following paragraph about liberals and there anti-corporate positions:

“For example, in the discussions I’ve seen of the Kelo case on eminent domain, the frame of the discussion was not whether the decision is correct as a matter of Constitutional law, and I must say that, to me, there is little doubt the majority is correct, but rather on whether it helps big corporations. That simply is not the correct way to evaluate a court decision. That is what the Save Terri Schiavo people wanted.”

In the first case (thimerosal), Armando failed to disclose that he is a partner in a law firm that represents Wyeth and GlaxoSmithKlein, two major pharmaceutical corporations that both have exposure to thimerosal lawsuits because they used the drug in vaccines. Second, he takes issues with liberals making their Kelo arguments on the basis of whether the Court’s decision helps big corporations — without disclosing that he is a big corporate lawyer.

Spruiell has a point here, especially on the thimerosal issue. Now, that post is largely an excerpt from a NYT article on the matter with little editorial comment of his own. And it was in a diary entry rather than the front page. Still, had I been in Armando’s position, I would have disclosed my conflict. That’s true even though I am inclined to believe that Armando’s stated position on the matter is genuine, and not a reflection of his professional relationship with big pharma.

[UPDATE: Armando assures me via email that “I did not know thimerosol was a Glaxo product. Indeed, I do not know it now, I take your word for it. My firm has not handled anything related to thimerosol.” That’s fair enough. Glaxo is a gigantic firm and there’s no reason an attorney for a firm representing the company on some matters would have its entire inventory memorized.]

The positions I take on this site are always my own but, when there is a conflict that the reader should know about, I disclose it. Then again, I blog under my real name and disclosure is therefore relatively easy. Having to protect one’s “secret identity” adds a whole new layer of conflict (see any episode of “Smallville” for examples) since one can scarcely maintain anonymity and simultaneously tell people that you’re a partner in a firm that represents clients X, Y, and Z.

At the end of the day (well, mid-morning, anyway) I’m basically where I started. Sprueill was well within his rights to post this story, which required “outing” Armando’s identity. The controversy it generated on both sides of the blogosphere is evidence that it was newsworthy and, even though pseudonymous, Armando is a public figure owing to his prominence as a front page blogger on the most important, highly trafficked political blog in existence. It’s not something I would have done and I think the “ethical violations” for which Armando is being castigated are minor at best. But that’s something about which honorable and bright people can disagree.

UPDATE: In email discussion pursuant to this post, Armando wonders where one draws the line on these “conflicts.”

Finally, you stated previously that giving your full name is enough disclosure for lawyers. Is that true? How about the law firm name? And if just the name is good enough, would it be right to publish the law firm name? The client list?

National Review
has many private lawyers who write for it. Should they disclose their law firm’s name? And should it be published? And then what is proper in writing about the law firms?

Frankly, I think you ignore the hypocrisy and disingenuousness of Spruiell. He has opened a Pandora’s box for harassment.

I do think lawyers writing for National Review on legal issues or public policy issues where their firms have an interest–especially if they are partners in said firm–should disclose any conflicts. How exactly it should be done if the conflic t is less specific than “I work for this firm representing the particular issue I’m writing about” cases is, admittedly, something I haven’t given much thought to and not something I could outline at the moment.

In my own case, my affiliation with the Defense Department is mentioned in my About section and I write about defense issues, routinely, without mentioning it in a separate disclosure. I only disclose it as a potential “conflict” if I’m writing about the program or agency employing me (which is almost never) or the issue of contractors working for the federal government (maybe once or twice in the history of the site). Regular readers know that my wife is a VP at a polling firm that does work for numerous Republican candidates. I typically only disclose that if I’m criticizing the work of a competing polling firm or lauding one of their candidates (I say nothing if I’m criticizing one of their candidates, as I frequently do). That satisfies my sense of ethics on the matter; whether it would pass Sprueill’s test, I can’t say. Certainly, if he “outed” me as a contractor with a wife working for a polling firm, though, it would not be a shock to my regular readers.

Armando seems to think that I’m being naive in dismissing Sprueill’s desire for a “gotcha” of a DailyKos blogger during the Yearly Kos hoopla. I’m not; I just presumed it obvious. As I noted to him in our exchange,

But, for example, when the Left Blogs attacked young Ben Domenech for his numerous indiscretions–which were certainly much more obvious/serious than nondisclosure of theoretical conflict of interest–my take on the situation was analytical (and anti-Domenech) rather than motivational. I take it as a given that Left bloggers writing about Right bloggers in a “gotcha” case are partly motivated by partisan considerations and vice-versa.

That they took particular enjoyment in “outing” Domenech’s misdeeds and forcing him from the perch to which he’d recently risen may not be the best manifestation of human nature but it’s hardly worthy of much analysis.

UPDATE:
Quoting myself vis-a-vis defenses of Domenech by conservatives at the time, “Whether the accusers are meanspirited seems beside the point with regard to the evidence.”

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Len says:

    You demean yourself. Really, you do. Playing in the mud like this. I have to say, I expected better.

  2. Fersboo says:

    You demean yourself. Really, you do. Playing in the mud like this.

    Hmmm, I wonder if it would be considered ‘playing int the mud’ if Armando was a right-of-center blogger.

  3. Bithead says:

    Oh, I do so love the smell of panic in the morning….

  4. I think the essence of the “conflict of interest” is part that what you write about could reap you a benefit (or pay back a favor) and part that we would evaluate the logic and opinion differently if we knew the source was not disinterested.

    If you represent a company which would benefit from one view vs another and don’t disclose, you are hiding a conflict of interest. The Kelo and anti-trust are lesser examples of this. I would say that people should now read any Armando post and assume there is an undisclosed conflict that is at least as close as the drug company one. He has shown he does not see that as a conflict, so would presumably post again with such a level of conflict. Beyond that, the blogs are free so you get your moneys worth.

  5. alex says:

    What hasn’t been mentioned yet is that from a purely ethical standpoint, disclosing the names of your clients -past or present- can in and of itself be an ethical problem for an attorney, especially an attorney with high profile clients. There are serious issues of confidentiality at play here that are not being addressed. I’m no fan of Kos and his minions, but I have to side with Armando here. Having said that, as a new attorney, you won’t be catching me or any of my new associate colleagues posting anything partisan in nature under our real names…wouldn’t be prudent for business or our careers.

  6. James Joyner says:

    Alex: Actually, I noted that in passing in my original post: “I/m not sure whether publically noting that one’s firm represents a client is even advisable from a legal ethics standpoint.”

  7. McGehee says:

    Perhaps the sensible thing to do is simply assume any attorney commenting on any issue has some undisclosed conflict of interest and filter accordingly.

  8. Truthteller says:

    Beyond the smoke and mirrors, I firmly believe the Armando outcry is a response to his employer questioning his priorities, and/or time distribution. You can’t post 200 comments in a day, write a story and not have that detract from your work, so I think all these moralist arguments are mostly bluster. I am willing to bet that clients were billed for time whilst blogging- in fact I guarantee it, the guy is a blogging addict of amazing proportions.

  9. Eric Odom says:

    Good post. Will you guys be keeping an eye on http://www.bloggingman.org next year? It’s the conservative version of Yearly KOS. Should be interesting.