Some will argue that Rob Porter’s (ostensibly) quick expulsion from the White House once the fullness of his conduct became public and inescapable should become the paradigm for how all alleged abusive conduct is dealt with across the board — in all walks of life. Yet, should it?
As background, even John Kelly no longer could abide having a high-powered man sitting two seconds from the Oval Office who, accused by two ex-wives and a girlfriend of domestic abuse, could not gain full FBI security clearances. And so, even President Trump’s most ardent supporters couldn’t blame the president’s chief of staff for summarily firing Porter (calling it a resignation) once all the cards were on the table — including the photograph published in the Daily Mail of the ex-wife who says Porter hit her.
{mosads}What if the accused instead were a hedge fund manager, or a rheumatologist, or an executive at a real estate company, and the behavior did not carry over into the workplace, as apparently was the case with Porter? Sure, the employer could, and should, consider discipline or even termination, and maybe even make sure due process rights are in full force.
The current national conversation has gone in the un-vacillating direction of zero tolerance for one (credibly) accused of any misconduct, no matter who, when or where — for example, Sen. Al Franken, who resigned amid harassment allegations. Yet, not so many years ago, the American public was willing to vote Bill Clinton into office twice despite public accusations of sexual misconduct. And just one year ago, before Harvey Weinstein literally broke the mold, President Trump won the presidency despite taped comments about what famous men can do to women.
In Porter’s case, one of his ex-wives did obtain a restraining order, though neither of his exes nor his girlfriend appeared to have filed a criminal complaint. Porter denies the allegations. So, with that backdrop, if he were the hedge fund manager, physician or real estate executive, and his alleged conduct had absolutely nothing to do with his workplace activities, should he — based on the allegations alone, even with a photograph — be fired? We can’t look to Harvey Weinstein or Matt Lauer for guidance; it appears their conduct derived from the power they exerted in the workplace.
One could argue that because he worked in the Oval Office, Porter’s firing should be a done deal. Or, is his alleged conduct such that any person, in any industry, who did it should be removed from his work? Does the Porter incident fairly draw a line on how far society will or should go? Meaning, as we all have now heard many #MeToo moments — some gut-wrenching, some “merely” awful and wrong — where is the line on how to deal with them?
I am not intending here to defend the appalling behavior of men such as Porter (or his former colleague, David Sorensen), or to say that harassment of any sort should be allowed or excused. And Porter’s conduct, given his position, has to be an unquantifiable disqualifier (particularly when you add to it his lack of security clearance). Clean out your desk, period. An independent investigation — but after the fact, and not while he is next to the president. Still, should how his case was resolved — and there remain questions about what the White House knew, when — be the template for every non-White House offender who comes down the pike?
I do not have a simple answer to that question. As a white-collar criminal defense lawyer with many years of experience, due process runs in my veins. I sometimes rail against prosecutorial abuse of the system, but not when it comes to credible allegations of violence. I therefore write this in the hope of furthering the national conversation, a conversation that must not be stilted by the participants simply retreating to their corners to talk into their respective mirrors about their own steadfast views on a subject.
Joel Cohen, a former state and federal prosecutor, practices criminal defense law at Stroock & Stroock & Lavan LLP in New York. He is an adjunct professor at Fordham Law School and the author of “Broken Scales: Reflections on Injustice.”