DC Attorney General Karl Racine may have crossed an ethical line when he endorsed Brian Schwalb as his successor. One of four candidates in the AG race vying for the Democratic Party nomination in the June 21 primary, Schwalb previously worked with Racine at Venable LLP, one of the city’s top law firms.
Prior to becoming the city’s first elected attorney general, Racine had been the managing partner at Venable.
Before announcing his candidacy in December, Schwalb was serving as the partner-in-charge of Venable’s DC office. He had previously served as vice chair of the firm as a whole.
During Schwalb’s tenure, Venable has represented clients he said were opposing the District. Many if not all of those cases would have involved Racine’s office, as the Office of the Attorney General (OAG) is the government’s legal representative.
“If it’s not a conflict of interest, it has the appearance of one,” said a senior-level DC government official I spoke with about the endorsement.
“I think Karl Racine is looking out for his own best interest. Venable helped him get that position, and what’s best is for him to keep that bloodline going,” Ryan Jones, an attorney in private practice running for AG, told me earlier this week during a telephone conversation when I asked for his reaction to the endorsement.
“I don’t think Brian is any more suited to do the [AG’s] job than any of the candidates,” added Jones.
“[The] endorsement raises myriad potential conflicts of interest,” said Chuck Thies, campaign manager for Kenyan McDuffie, another candidate for the AG post. McDuffie currently represents Ward 5 on the DC Council and serves as the chair pro tempore.
Bruce Spiva, who previously managed the DC office of Perkins Coie and is the fourth person in the race, did not return my telephone calls to his campaign.
Racine’s endorsement may also have run afoul of rules promulgated by the Democratic Attorneys General Association that prohibit such actions in many cases, according to officials who know the group’s operating policies.
Schwalb asserted during a telephone interview earlier this week that there was “no conflict of interest.” In an email statement sent later that day, he underscored his native Washingtonian roots and offered that he was “honored to have earned the endorsement of the first independently elected DC attorney general” while confirming that “partners and lawyers in our office over the past 7-plus years have worked on a small number of matters in which our clients were adverse to the District of Columbia.”
“We zealously represented our clients, and the OAG zealously represented their client, the District of Columbia,” added Schwalb.
Interestingly, that comment closely matches the one from Racine’s spokesperson at the OAG: “AG Racine met with a Venable employee less than three dozen times regarding the work of the office” within the last seven years, she told me in an email response to several questions I asked about the relationship between Racine, Schwalb and Venable.
She was unable to provide full information about the interactions by my deadline, or a list of the specific Venable cases that the OAG had handled and how they concluded. “Our office is doing a thorough search of any meetings anyone in our office has had with Venable, which will take time since our office has about 700 employees. Though only a small fraction of those employees would have had any interaction with attorneys at the firm, likely when Venable served as opposing counsel in one of our cases.”
The spokesperson also denied there was any conflict of interest. “AG Racine holds himself and the entire office to the highest ethical standards.”
However, the AG spokesperson repeatedly contradicted herself. For example, in what surely comes across as backdoor confirmation that the endorsement could give the appearance of a conflict, the spokesperson said: “Since this endorsement, AG Racine is recusing himself on any legal matters that may arise out of the attorney general race, including any matters involving Brian Schwalb’s work at Venable, if any come up.”
Then there was this: “The fact that AG Racine, in his personal capacity, endorsed Brian Schwalb has no effect on OAG practice, nor could it,” she added.
Wait, wait. Racine never indicated the endorsement was in his “personal” private capacity — and even if he had, what difference would it make in the public’s perception? In a video statement posted on Twitter, his title was visibly — and, I’m sure, deliberately — present on the screen. And why wouldn’t it be? Racine was using the power and influence of his elected office to give weight to a former colleague whose candidacy has yet to generate substantial interest with DC voters and who was seen as trailing McDuffie.
Thus far, many people consider McDuffie the candidate to beat. He has bested the other candidates in fundraising, and he is the only experienced politician in the field. Characterizing himself as “The People’s Lawyer,” he is using his legislative record as an indication of the issues that would guide his work if elected as AG.
Even before the police-orchestrated murder of Minnesota resident George Floyd, McDuffie pushed through legislation he said was designed to treat violence as a public health issue, including a bill that opened the door for the arrival of violence interrupters and required collaboration between police and behavioral health specialists when handling calls involving people with mental health issues. He later ushered through the legislature a law that created an office of racial equity in the council and another in the executive branch. Those actions, among other things, have made him popular in many sections of the city, including some predominantly white communities.
Racine’s spokesperson asserted that the AG had “consulted with ethics counsel in connection with the endorsement and the upcoming election, and he specifically attended a Hatch Act refresher training before this political cycle and mandated the training for all OAG employees.”
However, when I asked the spokesperson for the date that the ethics counsel provided the guidance, if it was in writing and whether I could receive a copy of it, she told me the next day that “advice provided by our ethics counsel is not publicly available and is subject to attorney-client privilege.”
Raise your hand if you’re surprised.
Racine himself issued a statement that said: “According to DAGA’s rules, attorneys general can endorse candidates in their individual capacity – and that’s what I did.”
Except clearly that is not the way he presented the endorsement of Schwalb. And Schwalb’s campaign even tagged Racine’s official Twitter account — rather than his personal one — when it tweeted out the endorsement video.
A day later, the AG spokesperson pulled out a section of the DC Code — D.C. Official Code § 1–1163.36 (b)(1) — to suggest that it shows Racine has the right to endorse a candidate. Indeed, it does say, “This section shall not prohibit the Chairman and members of the Council, the Mayor, the Attorney General, or the President and members of the State Board of Education from expressing their views on a District of Columbia election as part of their official duties.” However, the law goes on to make clear that it is not meant to “be construed to authorize any member of the staff of the Chairman and members of the Council, the Mayor, the Attorney General, or the President and members of the State Board of Education, or any other employee of the executive or legislative branch to engage in any activity to support or oppose any candidate for public office, whether partisan or nonpartisan, an initiative, referendum, or recall measure during their hours of work, or the use of any nonpersonal services, including supplies, materials, equipment, office space, facilities, telephones and other utilities, to support or oppose an initiative, referendum, or recall matter.”
This all points to the problematic nature of elected officials making endorsements — all the more so when it comes to selecting their successor. I don’t think they should lend their names, if you will, to candidates running for council or AG or mayor while they hold positions in those institutions. The title each official has is a public resource that comes with certain advantages. So when Racine’s title is used in a political campaign — as it is here — I see it as a misuse of government property.
Schwalb’s endorsement is not the first time Racine has jumped into the political fray. He has proved himself a man with big ambitions. In 2020, he endorsed Brooke Pinto in the Ward 2 council race and Janeese Lewis George, who was running against incumbent Brandon Todd, in the Ward 4 race. That same year, he got behind Ed Lazere, a nonprofit budget analyst, in his bid for an at-large council seat. The former two won; the latter lost. In 2016, Racine supported Robert White for his at-large council run and Trayon White in his bid to unseat LaRuby May as Ward 8’s representative on the DC Council. Both Whites had been briefly employed in Racine’s office.
Interestingly, Racine had said in 2020 that he would run for reelection as AG, though he seemingly kept toying with the idea of challenging Bowser. Then, last October, he abandoned both ideas, choosing to end his political career — at least for now.
Soon after, Robert White announced his mayoral bid. Racine quickly endorsed him, even becoming a surrogate on the campaign trail. The results from a recent Washington Post poll suggest that White’s climb to victory is steep if not impossible.
Racine’s next career move isn’t clear. However, his waffling about whether to seek reelection or grab the next political rung suggests a man who wants to have influence and who wants to remain in the game.
During a recent oversight hearing before the council’s Committee on the Judiciary and Public Safety, however, he described himself as a capitalist and said he likes making money. If he decides to step into the role of lobbyist or rainmaker at a large law firm or corporation, he will be well-served by his past affiliation with the Democratic attorneys general group and the fact that he aided the election of at least four council members. Ushering in the next AG would be further enhancement.
Except that he may have tarnished his reputation and his image by endorsing someone from a firm that many perceive as representing primarily wealthy clients and who has had very little direct interaction with DC residents or on issues of specific interest to them.
“Karl defined himself as a populist. Now he has gone back from whence he came. He is trying to install another denizen of K Street,” said another political operative with whom I spoke last week.
Racine may have also stirred concerns of some Black voters about diminishing their enfranchisement. Some whites interested in racial equity have likewise considered the potential impact of Racine endorsing a white candidate when there are African Americans who are considered strong contenders.
After all, Racine isn’t just the first elected AG for the city. He is also a high-level Black leader who has drawn national attention and prestige. Some people are worried that DC’s declining African American population will eventually result in a reduction in political representation and clout. That reality may be years away, but few of the people I spoke with are ready to have the outgoing AG usher in that era by opening the door for his former colleague’s election.
John Capozzi, a Ward 7 resident who has been active in local politics, has endorsed Spiva for AG. He told me that while he likes Schwalb’s management style, “I am disappointed with Karl’s endorsement.
“An endorsement like that sends a message to people in the community about who we want in office,” added Capozzi.
None of that will matter to Racine. Once he leaves office, it’s quite likely he will have minimal interaction with average DC residents. However, if Schwalb wins, that will be another chit he can spend in his capitalist machinations when the time is right.
This article first appeared in TheDCLine.org