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Abuse of Power: That Day the Virginia Attorney General Tried to Get Me Fired

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Mr. Herring has no regard for the law, or the rights of Virginians, if their opinions differ from his. He's not afraid to step on Constitutional rights and use his office to silence critics. The only person he puts first is Mark Herring.

When someone tries to get you fired or silence you … you don’t forget it.  When you are a state employee and that someone is an elected Constitutional officer and the highest-ranking lawyer in Virginia, the events and facts stick in your mind.  In February of 2015, Virginia Attorney General Mark Herring tried to either silence me or get me fired.  Maybe he thinks I forgot.  I didn’t.  I remember Mark Herring’s abuse of power.  Perhaps he thinks the good people of Virginia won’t care either.  Today, I give them that chance to care.

The Virginia Attorney General didn’t like an op-ed I wrote for the Richmond Times-Dispatch, so he did the “honorable thing” and called my boss’s boss, another state employee, and tried to get him to silence or fire me.  Eleven months later, my position was eliminated.

That’s who Mark Herring is, and that’s how he operates.  Mark Herring doesn’t deserve re-election, he deserves to be investigated.

Here are the facts:

As I crested the overpass of the I-66 access road on the morning of February 2, 2015, a call came in on my phone from my boss, Daniel Polsby, the former Dean of George Mason Law School.  Dean Polsby only called me on my cell phone about five times in six-plus years.  So, when the big boss called I knew it was important.

On February 1, 2015, the Richmond Times-Dispatch published my op-ed.  The piece explained Mark Herring’s actions on his incorrect and troubling interpretation of a domiciliary statute that would permit illegal aliens to obtain Virginia domiciliary, and therefore qualify for in-state tuition.  The piece was a criticism of Herring, an analysis of the possible effect of his action, and a call to action for the General Assembly.  Herring didn’t like it.

Rather than rebut the piece, contact the author, ignore it, or just send out a host of surrogates to take issue with it, Mr. Herring did exactly what Americans rightfully fear of their government.  He tried to use his office to impose upon another state agency his view and punish me for my opinions.

Herring’s actions were unethical and a flagrant abuse of his office … not to mention the predictable actions of a weak, cowardly, partisan politician.

Here is exactly what happened next.

My boss explained that he was headed to main campus because he had been “called into a meeting” that morning with George Mason President Angel Cabrera because the “Attorney General was angry” about something I wrote.  The Dean wanted to know from me the gist of the piece before heading into that meeting.

Now, you might ask me, “Rich, by what right are you out there writing op-eds with George Mason’s name attached to them?”

Well, I had just spent the last two years writing, speaking, and appearing on radio, TV, and in print on behalf of George Mason across the Country.  In fact, Mason heralded my dozens of appearances by circulating links to my interviews and columns, and by working with a PR company to place my pieces. In fact, the University’s webpages still link those stories.

I want you to read that again because it is critically important.  I was not only appearing routinely on radio and TV coast-to-coast due to my expertise, but George Mason actually was paying a PR firm to arrange some of these appearances.

My accidental celebrity started when I helped the local NPR affiliate with daily coverage of the Bob McDonnell trial.  That meeting was a referral through the University PR office to me.  So, I gladly answered the questions on background.  As a result, I earned an invite to help analyze the case.

I then did the legal analysis of that case every day for 6 weeks, and again through the appeal and Supreme Court case.  George Mason ate up the coverage.  One University PR employee told me a quote of mine about that case picked up by the Associated Press one day appeared in a record number of publications.

The University Communicators Group published all of my appearances to University brass, and the Law School routinely published many more links to my pieces and appearance across its webpages.  As this led to more invitations to speak and appear, I accepted them.  I was never restricted from speaking or writing on any subject.  And again, in some instances, the University paid to help get me placed.  

Of course, I made appearances on dozens of stations without those University contacts.  I still do radio and TV analysis on politics and the law.  So, my appearance in the Richmond Times-Dispatch was no surprise to anyone, nor was it in any way a particularly controversial piece relative to others I had printed and for which I had been heralded.

All that changed when a Constitutional officer of the Commonwealth didn’t like my piece, and according to my boss, called our University President to complain. Only the President knows the substance of that call.  Did Herring or a surrogate ask to have me fired?  Did he ask to have me silenced?  I don’t know the contents of the call.

I do know the outcome of that call.

After the meeting, Dean Polsby either called or spoke to me in person and said these exact words, “the good news is, they didn’t fire me and they didn’t tell me I had to fire you.”  Of course, I was wondering why President Cabrera even called my Dean, and why the President didn’t tell the AG to go fly a kite.

That afternoon, the Dean appeared in my office and told me he had to “put me on the bench.”  He explained that I couldn’t write or say anything publicly in George Mason’s name.  He said I couldn’t write anything at all, other than writing my local newspaper in my personal capacity over maybe a local land issue.  We had a brief discussion where he attempted to say the University was taking the position that because the President supported in-state tuition for illegal aliens, my column could be viewed as “insubordination” and I could be fired.

That was nearly as big a pile of rubbish as the AG’s opinion on domiciliary status.

Let me repeat this … the University … to the extent it thought I had broken some rule or policy, never afforded me any administrative hearing on the issue as it would have been required to do so under its own policies.  They didn’t do that because I didn’t do anything wrong or outside the duties they permitted and trumpeted.

I liked and admired my Dean.  I still do like him.  In fact, I apologized to him for his being in the middle of this Herring and Cabrera-made debacle.  I served at his pleasure.  Frankly, one of the jobs of an assistant dean is to keep your boss’s boss off his back.  I suppose I failed at that, forgetting that the President is an advocate for giving illegal aliens in-state tuition.  Encouraging an illegal alien to enter or stay in the United States is a federal felony, something I wrote about years ago while an assistant Dean at Mason. Again, nobody complained then.

The University reaction to the AG’s intimidation was not a profile in courage.  Of course, that’s exactly why this type of abuse of office is so outrageous.  The University shouldn’t be put in a tenuous position by a powerful elected official.

After the Herring intimidation, the Dean told me that the University could limit what I say as an employee under existing law.  That was and is a true statement.  Since he cited case law to me, it was also proof that the University did some research about how it would silence me to meet the demands of the AG.  It would, essentially, completely change my job duties.

What the Dean left out was that the University was going to limit me going forward because of the AG’s complaint.  They had placed no limits on my previously.  The only intervening factor now was the AG’s complaint.

Herring had successfully silenced me … he thought.

Perhaps my favorite line of the exchange over this matter was when the Dean told me “only tenured law professors can lose their minds and say what they want.”  Ironically, as word spilled out about this “benching,” many tenured law professors were aghast that the President would do this.  Few if any realized that this came from a Herring complaint to the President.  An amiable man, Dr. Cabrera’s judgment was overcome by his political sympathies.  And, to be sure, he was rattled by a complaint from the AG.

For several weeks after this episode, I turned down repeated interview requests, waiting for sanity to kick in.  In fact, for the first few weeks, I turned down requests with bogus excuses to my media sources because I did not want to make the Law School or my Dean look silly by explaining what really happened.

The Attorney General of Virginia twisted the arm of the University to shut down my political speech unfavorable to him, and the university caved like cheap suits.

If not for my love of the Law School I would have I gladly would have outed the AG at that time.  I thought doing so, however, would be bad for my law school during our recruiting season. Make no mistake, I come forward today because this next week is about Mark Herring, and the public has a right to know who he really is.

The Dean later reduced the University directive to silence me to writing.  Obviously, it didn’t mention the AG.  It just limited my free speech and changed my duties to eliminate speaking and commenting as a member of the Mason family.  I later clarified that I could, in fact, appear and write wherever and whatever I wanted, if I didn’t use George Mason’s name.  The Constitution’s pretty good about that.

I was now a black sheep to an institution I helped served quite well.

The President yielded to the AG’s intimidation because frankly, he was sympathetic to the political policy at issue. And the AG got what he wanted, abusing the power of his office to do it.

I suspect the University thought the restriction would dry up all my appearances.  It did not.  It turns out my performance and expertise earned the respect of media contacts, and I continued to appear, often referred to as “Rich Kelsey, Virginia legal expert,” or “Rich Kelsey Legal and Political commentator.”  Unmistakably, however, requests for my time dropped because media want to run a title under a guest’s name that is self-authenticating.

Herring wanted to make sure a no one could any longer hear a conservative legal voice who criticized him.

Ultimately, I shared the truth of the story with several media sources I knew and trusted, and I told them that the AG’s intervention likely marked my time at the law school. In fact, several weeks after the event, I was in the Dean’s office prior to our senior staff meeting when he said to me, “I think we are ok.  I think this will all blow over and we just have to wait about 10-12 weeks.”

I didn’t follow up on that comment.

I think, either the Dean slipped up or he was signaling me.  I did the math.  What would 10-12 weeks have to do with any of this?  We would have a new Dean.  I took that to mean, the University had figured out how to resolve this issue under color of transition.  The new dean would pick his team, and I would not be on it.

That is how soft tyranny and public corruption work.

Replacing me is any dean’s right.  Being intimidated to do so or asked to silence me by another elected official, that is not right.

There certainly isn’t anything particularly special about me.  I am a reasonably smart lawyer who talks well in sound bites.  George Mason Law can replace any non-tenured employee quite easily.  Indeed, they already replaced one of my replacements. Assistant Dean’s come and go.

Anticipating my departure, Dean Polsby pulled me aside in May of 2015 and prepared me for my job being eliminated.  He followed up with a nice note, saying of me, no one has put more sweat equity into the success of the law school.

The new Dean eliminated my position after he found a replacement for me and gave that individual a new title.  Eliminating your position is a euphemism for … you’re fired.

As I have written, we are all replaceable.  Assistant Deans ultimately serve at the pleasure of a Dean.  However, to understand how odd it would be to get rid of me without undue political pressure, consider the following:

I graduated from George Mason Law in 1999.  At graduation, I was selected by my classmates as a student speaker.  I had run the law school newspaper while there, winning a national award.  I was a Dean’s Scholar, a Moot Court Board member, and one of two winners of the Dean’s service award.  In law school, I served as a student representative to the Board of Visitors.  Board members and a prior administration credited my advocacy in 1999 with the Board of Visitors’ extraordinary decision in a special session to increase funding to the law school.  That was a watershed moment for a law school that had then fallen to the third tier.

After graduation, I served as a board member of the Alumni Board, and I later became the President of the Law Alumni Chapter.  I taught as an adjunct at the law school, teaching an innovative class focusing on litigation, e-discovery, and computer forensics.  After the sale of my technology company, I was honored to come home to Mason to join the administrative team.

While at Mason, I conceived of, pushed for, and ensured the creation of its now most successful, student-oriented, Law Center.  I merged my business experience and legal expertise to push for and create the Center for the Protection of Intellectual Property.  In 2014, only 10 months prior to the Herring intimidation, I was elected by the graduating students as the faculty speaker at their graduation. Indeed, here is Dean Polsby introducing me before that speech.  None of this even addresses my contributions as a speaker and commentator.

Then along came Mr. Herring and the power of the government to intimidate.

Universities are teaming with the unproductive and unpopular.  My forthcoming book on Higher Education looks at that issue.  In my case, Mason eliminated a guy who created a profitable center, who was popular with the students, who had a rich unique history with the School, and who was appearing coast-to-coast on radio and TV raising its profile. That’s odd.  But that is what happens when the powerful abuse their power.

Leaving Mason sure was tough, and I didn’t want to do it.  In fact, I tried to mend fences with the new Dean, who absolutely did not want to keep me. **

The impetus for the departure started with the attorney general of Virginia, a man who thought it appropriate to use his office to try to fire a state employee with whom he disagreed.

I am certain Mr. Herring is betting that most Virginians don’t care about this inside baseball stuff at Mason.  Cynically, Mr. Herring is betting that he is cruising to re-election and at the end of the day, Virginia voters only care about on what political team one plays.

Character, abuse of office, or political skullduggery, Herring thinks, do not matter to decent Virginians.

Mr. Herring is up for a new term.  We are his boss.  I can’t fire him by myself, and I certainly can’t convince every strong Democrat to switch his or her vote over this matter.  I understand political reality. In an increasingly divisive, partisan, angry political climate, team and party trump country.  That is true for both “sides” of the political divide.

However, I have come to understand a great deal more about Virginia and her magnificent Virginians since I moved here with my wife in 1996.  Virginia voters are smart, savvy, loyal, and fiercely independent.  They can see through a transparent politician.

Decent people of every political stripe in Virginia will completely understand the gravity and impropriety of Mr. Herring’s actions.  The truth be told, the new Dean was not likely going to ever retain me.  That’s not the point.  The point is, your attorney general tried to silence and fire me as a state employee because he didn’t like my political opinion.  No decent Virginia could ever sanction that.

Virginia is the cradle of our Republic.  Indeed, it was George Mason who fought at the Constitutional convention to block the power of government from easily extinguishing the liberty of its citizens.  While he ultimately did not vote for the new Constitution, its best features reflect his determination to stop a powerful and abusive government.

From the founder, George Mason sprang our Bill of Rights.  A few hundred years later, Mark Herring tried to use his office through George Mason’s name-sake to stamp out my political speech.  That’s irony.

Mark Herring abused his officeHis conduct is worthy of investigation, not affirmation.

You don’t have to support my political views. You don’t have to support the candidate of the GOP. Decent Virginians, however, must draw a line in the sand for Constitutional officers who will abuse their office and work to get people fired for their opposing political opinions.

Mr. Herring doesn’t deserve your vote, and the people of the Commonwealth don’t deserve Mark Herring.

On February 2, 2015, Mark Herring, the Virginia Attorney General tried to get me fired or have me silenced for my political opinion.  I am hoping that’s not acceptable to you.  If it were you, it would never be acceptable to me.

 

** The new dean and I were never going to work together long, and his decision to eliminate my position almost certainly had nothing to do with Mark Herring. As I told Dean Polsby and the new Dean, a Dean has the right to have his own team.  Of course, none of that excuses Mark Herring’s bald effort to silence me.

Richard Kelsey

Author: Richard Kelsey

Richard Kelsey is the Editor-in-Chief of Committed Conservative.

He is an Attorney, a former Assistant Law School Dean, Law Professor, and Virginia state court law clerk. Dean Kelsey was also the CEO of a technology company specializing in combating cyber-fraud. He is a regular commentator on legal and political issues in print, radio and on TV.

Rich graduated from George Mason law school, clerked for the Arlington Circuit Court, and later joined an AM LAW top 10 law firm practicing commercial litigation. He left the firm to be counsel and CEO to a consulting firm, rising to CEO of Turiss, LLC, a technology firm specializing in computer forensics, digital investigations, and fighting cyber-fraud through civil intel services and new technologies. Upon the sale of the company, Kelsey returned to Mason Law, where in the years before his return, he both taught at the school and served as President of the Law Alumni Association. Kelsey was the Assistant Dean for Management and Planning.

At Mason, Dean Kelsey taught legal writing and analysis and an advanced litigation seminar. In 2014 he was elected by the graduating class as the faculty speaker at their graduation. While serving the former George Mason Law, Kelsey conceived of, planned, and brought to fruition Mason’s Center for the Protection of Intellectual Property, known as CPIP.

Rich has appeared on radio, TV, and in print hundreds of times as both a legal expert and political and legal commentator. He provided the legal analysis for all stages of the Bob McDonnell trial and appeal for numerous outlets including NPR and WMAL. He writes on occasion for the American Spectator and CNSNews.com. He returned to private practice in September of 2016, and he is working on a book/expose on legal education.

In his free time, Rich is part of the baseball mafia of Northern Virginia, serving on numerous boards and as a little league and travel baseball coach.

Rich has many opinions, and they are his own. His Twitter handle is @richkelsey.

2 COMMENTS

  1. Although I no longer live in VA, I have been following the 2017 election. I took the time this evening to read in it’s entirety your article on AG Herring. Thank you for taking the time to write it. It’s a shame that political leaders can no longer tolerate a difference of opinion and have descended into character assassination of those with whom they disagree. Please keep on speaking, writing and exercising your First Amendment rights because right unused leads to rights being lost.

    • Tanya … thank you so much for taking the time to read about this. I appreciate that. I promise to keep working hard to speak on issues to give Americans another conservative view. Regards, Rich

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