March 01, 2018

Defining Moments: John McKay

Melanie Bragg

One of my favorite interviews for my forthcoming book Defining Moments: Insights into the Lawyer’s Soul was with John McKay, former U.S. Attorney for the Western District of Washington and now Seattle University School of Law professor. John was chosen as a Director of the ABA Young Lawyers Division (YLD) by Judy Perry Martinez for her year as Chair of the YLD, 1990–1991. John and I worked together as Directors that year. We focused on our service projects and learning leadership skills in the YLD. John says, “You know what I loved about young lawyers is that we all worked together on things that mattered, and everyone agreed they mattered, especially pro bono work—helping people who are powerless. In the Young Lawyers Division, we did a lot of drinking in the suite, but the thing that brought everybody together was that we had to work on projects that actually helped people. We didn’t say, hey, who’s a Democrat and who’s a Republican. It didn’t make any difference.”

McKay’s Lead Line: Tell the Truth No Matter the Cost

I interviewed John in Seattle just after he was fired as U.S. Attorney for the Western District of Washington. I had been to his office when he was the U.S. Attorney and knew that he loved his job and was very successful in that position. While my lengthy interview had many highlights, when I asked John what his “Lead Line” was, he did not hesitate to say, “Tell the Truth No Matter the Cost.” He has experienced several situations where this principle has guided his life.

 

Family Dinners and the Lazy Susan

First and foremost, family is what John cherishes. He says, “I’m one of 12 children, and that’s pretty defining in a lot of ways. In our family, everything came down to a big round table in our house, where we ate dinner. My mother had a lazy Susan in the middle of the table. She didn’t put the meat on it, because if you put the meat there it just didn’t work. She would walk around and give us the meat. What happened around that table was my parents would lead a conversation about what was going on in the world. My earliest memories were of wanting to participate in the conversation. I’m the fifth of 12, so I had four older siblings and seven younger siblings, so the way that conversation went, and what we talked about was probably the most important thing that happened to me and why I became a lawyer.”

 

Finding His Voice at the Dinner Table

I asked him how that dinnertime conversation shaped his life, and he said, “Wanting to have a voice on what was happening. My parents would talk about what was going on in the world, what was going on in our immediate neighborhood, and what was going on in our family. It was more outward than inward. We talked more about what was happening out there and what our roles should be rather than who hit whom and our own internal squabbles. It was more like a classroom and a Socratic dialogue where we were called on, and our contribution related totally to our preparation and thoughtfulness. It was the pressure to participate that I remember feeling in the third grade.”

 

Landing in D.C. for the First Time

John got into politics early and became the campaign manager for Joel Pritchard, the only Republican congressman in Washington State. They won. He describes the first time he went to Washington like this: “I was his campaign manager at 21, and he won the election. I remember I was scared my first time going to D.C. I landed at National Airport and looked at the monuments and thought, ‘Oh, my God. That’s not the space needle down there. That’s the Washington Monument. You ain’t going to summer camp, boy. This is big time.’” Even though he was scared, he began to start thinking, “So what?” He says, “I remember humming a tune to myself like, ‘Let’s see what happens next.’ I developed a ‘this isn’t scary, this is fun’ attitude. And what comes around the corner in life is how you react to it, how you handle yourself, how you treat others, and I learned that there. This wasn’t just a class, this was real. People had real problems.”

 

Telling the Truth, No Matter the Cost

Several times in his career he has had a chance to tell the truth no matter the cost, and although it has not been easy, it is something that he passionately believes you must do in order to stay true to yourself.

He says, “When you know that doing the right thing is probably going to hurt you and maybe hurt some people around you, then you have to have a sense about yourself. I’ll tell you about the sense I had when I got the phone call to tell me I was fired as U.S. Attorney. It’s a sense that you’ve got to take some of the dirt, and it’s going to hit you, and it’s going to hurt, but the alternative is to look at yourself in the mirror and say, “I didn’t do the right thing when I should have done the right thing.”

John had already been in that position a long time before with an FBI memo he wrote as a White House Fellow. He recalls, “That’s hard because you know something bad is going to happen. I knew the minute I wrote the FBI memo as a White House Fellow I would have long-term consequences. When I wrote that memo, I knew that I was giving advice that they didn’t want to hear. I knew it would be hard for them to hear it, but it was like an elephant in the room—someone had to say it. Actually, the more important thing to me was that I didn’t want to do it, but it was the right thing, so I had to. I think it really has made a difference for me in my life.” He continues, “There are a few other times in my life where I had to do the same thing. You’ve got to stand up, and you’ve got to say the thing, even when it’s going to hurt you.”

 

Being Fired as U.S. Attorney at the Top of His Game

Years later, John paid the price for standing up when he was fired from his position as U.S. Attorney. He says, “One thing I regret about being fired is that I did a lot of work in law enforcement as the U.S. Attorney, the chief federal law enforcement official. There are a lot of stories from drug tunnels to human trafficking to amazing stuff, and I feel like I worked hard on those issues. I cared a lot about them, and my experience is defined by getting fired.” In fact, his office had just had a four-year performance review with rave reviews. The review is supposed to be done every three years, but ironically the same guy who ended up firing him called him up at the end of three years and said, “We know your office runs so well, we’re going to put you off for a year.” John says, “The Xerox paper was still warm. It had just happened. It was the most recently reviewed office out of the 92 offices, and the reviews included several best practices, which rarely get handed out. So, I knew that about my office, and now or shortly thereafter, I was being fired. I knew there would be a reason. It would have to come out. But I couldn’t denounce it. I couldn’t say this was wrong.”

John gives this whole concept some deep thought before speaking and tells me, “I look back on it now and I can see why I got fired. . . . Because I was never afraid to speak out in private, usually in private, but remember this is post-9/11. A lot of things happened where the Justice Department and the government were pushing the bounds of the Constitution to keep us safe. From Guantanamo, to wire-tapping, gathering intelligence, trying to prevent and disrupt terrorism, and the use of statutes. On at least two occasions, I spoke out in those meetings and raised questions about constitutionality of actions being undertaken by the government.”

He goes on to explain, “One time it was a meeting with the Attorney General, and I thought to myself, ‘This is unconstitutional. I don’t think we can do this.’ There were probably 50 U.S. Attorneys, the Attorney General, and no staff in the room. And there was no discussion of the topic.” He says, “I remember thinking to myself, if I stand up, it will look like I’m grandstanding, and I don’t want to do that. Someone else would surely raise this issue because it was so obvious.” John waited. He said, “The Attorney General of the United States was running the meeting. I was sitting toward the front. I couldn’t even look behind me to see if people were reacting. I waited and I waited. I thought, this meeting is going to end, and 50 presidentially appointed U.S. Attorneys, with the presidentially appointed Attorney General of the United States, have just discussed an issue of a very questionable constitutionality, and no one mentioned it.” Finally, McKay stood up and said, “Mr. Attorney General, I’m concerned about this aspect of this discussion. It makes me think that it is constitutionally dubious if someone is looking at this, and what’s our responsibility?” I might as well have farted in the room. You should have seen the look on his face. I did not want to be the one to stand up and say it. But, one of us had to do it. So, I did it. I just didn’t expect it was going to be solely me. That was fairly early on in my tenure as U.S. Attorney, and I know I did the right thing from my standpoint. How could I have left that meeting saying, ‘How come nobody said anything’ when I was one of the people? I know for a fact that from that time on, I was seen as someone who was not going to go along with everything. That, more than anything else, is why I got fired. They knew I wasn’t reliable to do whatever they said.”

 

Law Professor

After the U.S. Attorney position ended, McKay became a professor Seattle University School of Law. He uses his experiences to teach law students how to use their voices for justice. He says, “I tell my law students, you are all going to have a moment, and the moment is going to look like this. Someone’s going to call you in, and they are going to tell you to do something that you know is wrong. And there are going to be stakes. You will see the stakes like this. You might lose your job. You might lose your house. Your family might not be in good shape for the next few weeks. You might not become partner. Or you know you should stay silent. You have to decide whether to say something, especially if they instruct you to do something that is going to be on you.”

 

The Lessons Learned

As lawyers, we can never let our guard down on the oversight we have in our profession and the high degree of fiduciary duty we have to our clients. We have so many opportunities each day to wiggle our way out of the truth, for our clients, for ourselves, but we must stand firm like John McKay.

In this increasingly conflicted world, where one person says something is true and another person calls it “fake news,” it is hard to tell what is true and what is not. But being committed to being the best you can be and to always telling the truth no matter the cost is an ideal we all should strive for. John McKay is a shining example of a man who, at every turn in his career, chose to tell the truth, no matter the cost. He withstood the storms and came out a better person on the other end.

Please contact me with any feedback. I would love to hear from you at melanie@legalinsightinc.com.

 

 

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Melanie Bragg has long enjoyed a reputation as one of Houston’s fiercest attorneys in her representation of children, the elderly, and mentally disadvantaged people. Her firm, Bragg Law PC, is a general civil firm in Houston, Texas. She also writes and produces legal education programs through Legal Insight, Inc. (founded by Bragg in 1993). Her writing credits include Crosstown Park, an Alex Stockton legal thriller, HIPAA for the General Practitioner, chapters in How to Capture and Keep Clients, 2nd Edition; Effortless Marketing: Putting Your Unique Qualities to Work, 2nd Edition; and The Conscious Lawyer: How the Practice of Mindfulness Will Increase Your Bottom Line, as well as the upcoming book, Defining Moments: Insights into the Lawyer’s Soul, to be published by the American Bar Association (ABA) Flagship Division. When she is not writing, Melanie devotes her time to her work as Chair-Elect of the Solo, Small Firm & General Practice (GPSolo) Division and to sharing ideas with fellow authors. She is interested in your feedback and ideas about how solos, small firms, military, and government lawyers can lead richer, happier lives and thereby improve the delivery of legal services to the public. Melanie can be reached at melanie@legalinsightinc.com.