Before a federal judge has even handed down her decision in the high-stakes lawsuit accusing Harris County's bail system of being unconstitutional, the county has already begun preparing for appeals. Mainly: By hiring a swanky Washington, D.C. lawyer who had been a controversial contender for President Donald Trump's solicitor general pick, and a self-described close friend of Attorney General Jeff Sessions.
Harris County Commissioners Court voted Tuesday to hire Charles "Chuck" Cooper to help defend the 15 county judges in any potential appeals in the bail lawsuit. If it becomes necessary, Cooper will defend the county in appellate federal court against claims that the county's misdemeanor bail system punishes the poor, keeping them jailed on low-level offenses before trial just because they can't pay an arbitrary bail amount.
The move comes three weeks after closing arguments wrapped up in a contentious preliminary injunction hearing. If U.S. District Judge Lee H. Rosenthal grants the injunction in the coming weeks, Harris County may be forced to make significant changes to its bail system before possibly heading to trial on the case, when Rosenthal would rule on the merits.
County Commissioner Rodney Ellis was the lone commissioner sharply opposed to hiring Cooper, calling attention to both the controversial causes that Cooper defended in the past and also the financial burden on taxpayers caused by adding yet a third private law firm to the county's army of lawyers working on the case.
"If we say we are a county that is for reform, I think hiring an attorney who has a long record of defending egregious discriminatory practices at best makes us seem contradictory," Ellis said in an email to the Houston Press. "At worst, we appear disingenuous about our desire to reform a broken justice system that inarguably discriminates against people of color and the poor.
“As a Commissioner who represents a majority-minority precinct, it is my duty to protect residents' rights as well as the interests of taxpayers who must pay for a broken bail system that favors the privileged and punishes the poor.”
Cooper is perhaps most known for defending California's Proposition 8, the ban on gay marriage, and for signing a brief on behalf of the federal government in support of Bob Jones University — which was trying to enforce a ban on interracial dating in the name of "religious freedom." Cooper also notoriously argued employers should be able to deny work to those with AIDS in 1986.
"When we hire counsel to represent county officials, we are looking for someone who's well known in the field and highly regarded," Robert Soard with the Harris County Attorney's Office said. "So the fact that he may have represented causes or persons with whom we may disagree, it's not that much of a factor."
Soard said Cooper was selected because of a prior working relationship between Cooper and one of the private law firms already on the case, Winston & Strawn. Despite Cooper's high-profile status, Soard said his rates are not more expensive than those of the current private attorneys on the case, who charge between $300 and $600 per hour. So far, the county has spent approximately $2 million paying these lawyers to defend the bail system, a system Ellis has called "indefensible."
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Cooper began work with the U.S. Department of Justice under the Reagan Administration, starting in the Civil Rights Division and ultimately heading the DOJ Office of Legal Counsel until leaving for private practice in 1988. Before Trump considered him for solicitor general — the lawyer who argues on behalf of the federal government before the U.S. Supreme Court — Cooper had already argued before SCOTUS seven times. He voluntarily withdrew his name from the hat for the top gig, opening the door for George Conway, Kellyanne Conway's husband, to emerge as Trump's next best pick.
In a statement about his withdrawal, Cooper said: “After witnessing the treatment that my friend Jeff Sessions, a decent and honorable man who bears only good will and good cheer to everyone he meets, had to endure at the hands of a partisan opposition that will say anything and do anything to advance their political interests, I am unwilling to subject myself, my family, and my friends to such a process.”
Soard said after Rosenthal's decision Cooper will advise county judges about whether they should appeal, if it gets to that point. The county has already filed a contingent motion to stay Rosenthal's ruling, which would seek to immediately block a preliminary injunction until the county can finish any appeals.
Soard said the decision to appeal won't be made until county officials see the judge's decision — but this filing appears to be a sure sign that the county does not plan to go quietly.