Watchdog Flags Ethics Landmine for Biden Admin in Landmark Affirmative Action Case

Solicitor General Elizabeth Prelogar received a waiver to argue a case involving her former employer

Kevin Daley • January 5, 2022 5:00 am

A watchdog group is asking the Justice Department about its decision to waive ethics rules and let the administration’s top Supreme Court lawyer argue a landmark affirmative action case involving her former employer, the Washington Free Beacon has learned.

Protect the Public’s Trust filed a Freedom of Information Act request Wednesday for information about Solicitor General Elizabeth Prelogar’s involvement with a legal brief the administration filed urging the Court to reject a lawsuit accusing Harvard of bias against Asians. Prelogar, a former Harvard employee, is barred by the Biden administration’s ethics pledge from participating in the case without a waiver.

The request seeks all records relating to the decision to grant Prelogar a waiver, as well as communications involving Prelogar and the case, Students for Fair Admissions v. Harvard.

An ethics screwup would be an unwelcome addition to the case, which is a sensitive matter for the Biden administration. President Joe Biden had to resolve a dustup with Asian Democrats over the dearth of Asian nominees to top political posts early in his term. And some Asian affinity groups have quietly expressed frustration with Vice President Kamala Harris, who they say prioritizes her black roots over her Indian ones.

The Harvard case is the biggest piece of pending business before the Supreme Court. Beyond accusing Harvard of anti-Asian discrimination, the plaintiffs are urging the justices to forbid consideration of race in college admissions.

Harvard paid Prelogar $10,500 for teaching and unspecified consulting services in 2019 and 2020. President Joe Biden issued an executive order on his first day in office that requires executive branch personnel to recuse themselves from matters involving their former employers and clients for two years, effective from the date of their appointment. The Free Beacon reported on Prelogar’s potential conflict in August.

Prelogar obtained a waiver on Nov. 18, according to the U.S. Office of Government Ethics. The timing of the waiver is of particular concern to Protect the Public’s Trust.

The government submitted a legal brief urging the Supreme Court not to hear the case on Dec. 8, only three weeks after Prelogar obtained her waiver. Prelogar was the top signatory on the brief and is listed as counsel of record, indicating she is the administration’s point man for the case.

It’s possible the Justice Department crafted its brief in that three-week window. But given the high stakes and public attention the case implicates, the watchdog group believes it is much more likely government lawyers have been working on the case for months. That raises the possibility that Prelogar did work on the case without authorization.

The solicitor general gathers input from stakeholders across the government when crafting legal positions, a process that can take months. The justices had called on the Justice Department to give its views months earlier, in June 2020. And since the plaintiffs are urging the Court to demolish the foundations of affirmative action, it’s likely the case generated considerable deliberation inside the administration. The waiver itself notes the dispute is a “precedent-making case.”

“The case is high profile and of considerable importance to the department and the administration,” the waiver reads. “It raises a constitutional question that may have far-reaching and long-lasting effects on universities across the nation.”

All told, Protect the Public’s Trust says the waiver timeline doesn’t match the facts surrounding the dispute.

“Considering that there is no shortage of legal talent in the solicitor general’s office, the American public has to wonder why Ms. Prelogar’s involvement was so irreplaceable,” said Michael Chamberlain, director of Protect the Public’s Trust. “At this point, the circumstances raise a number of questions of whether the proper procedures were followed and whether the waiver process was appropriately applied.”

The waiver elsewhere indicates Prelogar received permission to work on the case at an earlier juncture, but that authorization and supporting details haven’t been made public. Per the waiver’s terms, Prelogar is only authorized to work on the Students for Fair Admissions case. She may not work on other matters involving Harvard. It also claims that she did not work on admissions issues as a Harvard employee.

Prelogar was an appeals lawyer in the Justice Department before joining former special counsel Robert Mueller’s investigation into Russian interference in the 2016 election. She left public service for private practice after the Mueller probe and taught a course on appellate advocacy at Harvard Law School.

The plaintiffs in the Harvard case allege that the university discriminates against Asian applicants and engineers the racial makeup of each incoming class. The justices are scheduled to discuss the case in private conference on Friday, and a decision as to whether they will hear the case could be announced as soon as Monday.

The Justice Department declined to comment for this story.

The Harvard case is No. 20-1199 Students for Fair Admissions v. President and Fellows of Harvard.