By: Aaron Sibarium

The Harvard Law Review retaliated against a student editor for allegedly leaking documents to the Washington Free Beacon and demanded, as part of the journal’s disciplinary process, that he request their destruction, according to emails obtained by the Free Beacon. The demand came as the law review was under a document retention order stemming from multiple federal probes, raising questions about whether the journal was also trying to interfere with a government investigation.

The Justice Department told Harvard on May 13 that it was investigating reports of racial discrimination at the journal, according to the New York Times. A week later, the law review instructed a student who was cooperating with the government in that investigation, Daniel Wasserman, to round up the documents he’d allegedly shared.

The journal told Wasserman to “[r]equest that any parties with whom you have shared Confidential Materials … delete or return them to The Review.” The instruction, conveyed by the law review’s disciplinary committee on May 20, came as the journal was investigating Wasserman for allegedly leaking documents to the Free Beacon, whose report on the law review’s racial preferences had triggered probes by the Department of Education and the Department of Health and Human Services in addition to the Justice Department.

People who participate in such probes are protected from retaliation by federal law. But two days after the journal asked Wasserman to round up documents, it informed him that he would be receiving a “Formal Reprimand” in his law review file.

“This Formal Reprimand informs you that your actions violate Law Review policies and do not reflect our community expectations,” the journal’s disciplinary committee wrote on May 22. “Continued violations may give rise to additional disciplinary proceedings.”

The reprimand was retracted five days later after the Justice Department accused the law review of retaliating against Wasserman and instructing him to destroy evidence, according to the New York Times.

Jason Torchinsky, a former official in the Justice Department’s civil rights division, said that the journal’s actions verged on witness intimidation and could get the law review in even deeper trouble with the government.

“What do they call it when a criminal tries to intimidate the witness?” Torchinsky said. “If you know someone is a witness in a federal investigation, and you try to intimidate them into stopping cooperation with the government, that in itself is its own offense.”

In a May 27 email retracting the reprimand, the law review claimed it had not known Wasserman was cooperating with the government at the time that it disciplined him. But the Justice Department had identified Wasserman by name in a letter sent to Harvard on May 21—a day before the reprimand was issued. Those dates were not included in the New York Times article, which asserted that Harvard did not disclose Wasserman’s identity to the law review until after it had reprimanded him.

The Times did not cite a source for that claim but simply stated it as a fact. Harvard general counsel Jennifer O’Connell did not respond to a request for comment about when the school conveyed Wasserman’s identity to the law review.

As early as May 9, the journal had accused Wasserman of “sharing confidential Law Review documents outside of the Law Review,” a finding the journal said was based on Wasserman’s downloads of the law review’s files.

HHS and the Education Department had cited materials from those files when they launched their investigations two weeks earlier. The timeline could strengthen the government’s retaliation claim, said Dan Morenoff, the executive director of the American Civil Rights Project, since it suggests that the law review believed Wasserman was behind the leak that led to the probes, even if it did not yet know he was cooperating with the government.

“The journal would need to confront the timeline’s clear implication that they knew Wasserman was the source of the live investigation into their discrimination,” Morenoff said. Even if they didn’t know he was a government witness, the Equal Employment Opportunity Commission says that whistleblowers “are protected from retaliation” if they complain about discrimination to a “newspaper reporter.”

“Courts have treated talking to 60 Minutes about illegal discrimination as protected opposition to illegality for the purposes of retaliation,” Morenoff said. “One might expect them to treat Wasserman’s alleged cooperation with the Washington Free Beacon the same way, regardless of what they knew or didn’t know about his cooperation with the federal investigation.”

The Harvard Law Review did not respond to a request for comment.

Under pressure from the Justice Department, the journal also retracted its demand that Wasserman request the destruction of files he allegedly shared. It claimed on May 27 that it had never asked Wasserman to destroy those files because its request to “delete or return” them only applied to the copies he had disseminated, not the originals on the law review’s servers, according to emails between Wasserman and the journal.

While that explanation would likely hold up in court, attorneys who reviewed the emails said, the exchange suggests that the journal’s response to a legal and media firestorm was to attempt to get the incriminating documents back—not to address the unlawful race discrimination detailed in those documents.

“These are purportedly the cream of a leading law school, aided by a presumably qualified outside counsel,” Morenoff said. “It’s hard to imagine how they could have conceived that such a request would be honored by a law-enforcement agency or how—if it were—that could possibly redound to their benefit.”

William Trachman, the general counsel for Mountain States Legal Foundation, said that the journal’s instructions to Wasserman were a risible attempt to hide its guilt.

“If the law review knows that the federal government possesses the smoking gun proving its discrimination, asking for it back is both bold and laughable,” Trachman told the Free Beacon. “The best course would be to acknowledge its violations of federal law and beg for forgiveness, not try to keep its guilt secret for a little bit longer.”

The episode is the latest example of how the law review has sought to rewrite history as it stares down the barrel of the Trump administration. Law review president G. Terrell Seabrooks published a “factsheet” last week purporting to debunk the Free Beacon story that led to the investigations. While the factsheet claimed that the journal had implemented a race-blind policy for editor selection, three current and former editors said they had never heard of that policy, which does not appear in the journal’s operating manual. Sometime after May 4, the law review also removed language from its application packet asking applicants to disclose their race.

Harvard has insisted that the university is separate from the law review and does not have oversight of its admissions policies. The agencies investigating the journal—whose tax forms state that it is “functionally integrated” with the university—are examining whether that claim is true.

The Trump administration has cut $550 million to Harvard based in part on the law review’s practices. Documents obtained by the Free Beacon show that the journal uses race to select both editors and articles for publication, with at least 10 different memos citing an author’s race as a reason to kill or advance their piece. Some submissions have also been penalized for not citing enough minorities.

Hours after the Free Beacon published the documents on April 25, the law review launched an investigation into the identity of the leaker. The probe continued even after HHS and the Education Department announced three days later that they were investigating the law review—and despite the fact that Harvard’s non-retaliation policy protects student whistleblowers.

“The University has an interest in encouraging the reporting of wrongdoing, and members of the community must be free from fear of retaliation to support that interest,” the policy reads. “The University expressly forbids anyone to take any form of retaliatory action against any member of the Harvard community who … opposes actual or perceived violations of Harvard University’s policy or unlawful acts.”

          (FreeBeacon.com)

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