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Matthew Whitaker as a Mini-Trump?

posted by Adam Levitin

It seems no surprise that President Trump has named Matthew Whitaker as Acting Attorney General:  it turns out that he's a Mini-Trump.  There are two rather remarkable parallels to Trump in Whitaker's history.  First, his involvement with the  operation known as World Patent Marketing closely parallels Donald Trump's involvement with the fraud known as Trump University. And second, both have used charities as their own personal piggybanks. Classy.  

Both World Patent Marketing and Trump University were at core bilking scams:  took payments in exchange for a service and did not provide any meaningful service.  Trump University promised world class real estate investing advice and it gave out packets one could have downloaded from the Internet.  World Patent Marketing promised to help inventors get their products patented and to market, and, according to the FTC, did basically nothing.  Both operations were facilitated by their use of Trump University played on Trump's endorsement and his supposed real estate investing acumen, while World Patent Marketing bonded itself by putting Whitaker on its advisory board and then trumpeting his background as a US Attorney as a way of establishing credibility.  A WPM news release quoted Whitaker as saying, "As a former U.S. Attorney, I would only align myself with a first class organization.  World Patent Marketing goes beyond making statements about doing business 'ethically' and translate [sic] those words into action."  

[Pro tip: when someone calls a company a "first class organization," it's probably not.  When it puts out a news release that it does business ethically, it probably doesn't.  When was the last time you saw a reputable firm put out a news release like this?]

Whitaker apparently did more than just vouch for the company, however.  He also spoke about the company's clients' inventions in promotional videos, and wrote a threatening email in response to a complaint about the company.  The threatening email seems potentially problematic to me in two ways.  First, it violates in spirit, if not in letter, a Model Rule of Professional Conduct for an attorney.  Second, I think it opens the door to civil and criminal liability for Whitaker.  

Whitaker walks perilously close to the line of violating Model Rule of Professional Conduct 4.1 with this letter.  Lawyers write dick letters like this all the time, but that doesn't mean that it's ethical to do so.  MRPC 4.1 says that in the course of representing a client, a lawyer shall not knowingly make a false statement of material fact or law to a third party. When you write a letter on behalf of someone who is paying you in which you name drop your past as a US attorney and warn of civil and criminal liabilities, I think you're acting as their counsel, even without any formal representation agreement.  The statement that Whitaker made is not 100% false—there are criminal libel laws in some jurisdictions—but they're almost never prosecuted, and a complaint to the BBB wouldn't trigger one, not least because the facts alleged remain confidential. Likewise, an on-line review wouldn't necessarily constitute criminal libel because it would have to be knowingly false and defamatory. Of course, Whitaker might just be ignorant, and therefore not acting "knowingly," but this is a case where he should have known before writing.  All in all, Whitaker's letter might not violate the letter of the rule, but it does seem to violate the spirit, and it makes him seem like a grammatically challenged bully.  

Whitaker might also have some civil and/or criminal liability from his involvement with WPM.  WPM settled with the FTC without admitting guilt, but to the extent it engaged in fraud, Whitaker's involvement with the company (and particularly the email trying to squash a complainant) might also open him up to liability for aiding and abetting the fraud (and with it also a violation of MRPC 8.4 on attorney misconduct). His use of an email to advance a civil fraud could also open him up to wire fraud charges.  Yes, there are lots of possible defenses, e.g., lack of scienter.  Still, this is not the sort of background that should be hanging over an Acting Attorney General. 

The Trump parallels don't stop with the scam-association.  They also extend to abuse of charities.  Trump used his charitable foundation to cover his legal settlements and buy vanity portraits of himself. Whitaker took a salary from a charity that in one year exceeded half of the donations the charity received.  That makes it seems as if Whitaker himself was the charitable cause. The IRS has rules against inurement of excessive private benefit.  There's no bright line definition of what's an excessive private benefit, but I think taking home over half of a charity's revenue would readily qualify. That could result in either the loss of the charity's 501(c)(3) status.  

With a hat tip to Taylor Swift:  Grifters gonna grift, grift, grift, and scammers gonna scam, scam, scam.  



Be careful criticizing Der Drumpfenfuehrer. He will post doctored videos of you attacking him and then revoke your press pass.

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