Exclusive: Virginia State Bar case against Israel trip falling apart

Exclusive: Virginia State Bar case against Israel trip falling apart

The Virginia State Bar, the official licensing agency governing attorneys in the Commonwealth, caused a firestorm of controversy with a mass email from President Kevin E. Martingayle to the membership on Friday night, March 27, 2015, cancelling a scheduled mid-year seminar in Jerusalem.

Just two days earlier, however, Martingayle had emailed the membership encouraging sign up for the Israel trip. That March 25 email reads, in part (emphasis and links in original):

In the spirit of March Madness, I am calling “time out.” This time out is for you to consider some education, fun, and adventure.

Please take a few minutes and take a look at the VSB website for information on:

· The Midyear Legal Seminar in Jerusalem November 8-15; and
· The Annual Meeting in Virginia Beach June 18-21.

These VSB events provide terrific opportunities for lawyers and judges to learn, socialize, and network in beautiful, relaxing surroundings.

To ensure that the Midyear Legal Seminar will be a “go,” please confirm your reservation and deposit by April 1. The Midyear Legal Seminars are paid for by the participants and not by bar dues.

Here is an image of the full March 25 email provided to me by a VSB member who received it:

Yet just two days later, in the March 27 email, Martingayle on behalf of VSB unleashed a torrent of accusations against Israel as the basis for the cancellation.

Prof. David Bernstein at Volokh Conspiracy (The Washington Post) received the email as a VSB member and called attention to the situation. The email read (emphasis added):

Dear Fellow Members of the Virginia State Bar,

Certain members of the Virginia State Bar and other individuals have expressed objections to the VSB’s plan to take the Midyear Legal Seminar trip in November to Jerusalem. It was stated that there are some unacceptable discriminatory policies and practices pertaining to border security that affect travelers to the nation. Upon review of U.S. State Department advisories and other research, and after consultation with our leaders, it has been determined that there is enough legitimate concern to warrant cancellation of the Israel trip and exploration of alternative locations.

Undoubtedly, this news will disappoint some VSB members. But we are a state agency that strives for maximum inclusion and equality, and that explains this action. Fortunately, we still anticipate being able to find a suitable location for the November seminar trip, and we will send out further news very soon.

Finally, we are pleased that our members and citizens feel able to express concerns and look to us to protect rights. In the end, we are all part of the same team, and the VSB will continue to stay focused on advancing its primary objectives—public protection, access to justice, and improvement of the profession.

As always, I appreciate having the honor of serving as your president.

Best regards,

Kevin E. Martingayle,

President, Virginia State Bar

The Israel trip cancellation has generated coverage not only at Legal Insurrection (here and here), but also at Power Line (here and here), The Washington Times, The Washington Post, The Weekly Standard, and WTOP, among other outlets.

There has been condemnation by the Speaker of the Virginia House of Delegates, the Greater Washington, D.C. Jewish Community Relations Council, the American Jewish Committee, and B’nai Brith.  The list is growing by the hour.

Defense Based On Communications With Israeli Embassy

VSB has defended itself by pointing to communications with the Israeli Embassy in which VSB allegedly was told that some members of VSB may not be allowed into Israel for the trip.

Here are some quotes attributed to Martingayle and President-Elect Edward Weiner regarding communications with the Israeli Embassy (emphasis added):

The Washington Post:

He said the bar checked the U.S. State Department Web site, which advises that “some U.S. citizens holding Israeli nationality, possessing a Palestinian identity card, or who are of Arab or Muslim origin have experienced significant difficulties in entering or exiting Israel or the West Bank.”

Weiner said the group also called the Israeli Embassy and was told officials could not guarantee that someone in the group would not be questioned or stopped.

WTOP

Kevin Martingayle, president of the Virginia State Bar, says security was a concern when Israel was chosen as the destination for the annual members’ legal summit. But they concluded it was safe.

However, the trip was canceled after it was determined in conversations with the State Department and Israeli Embassy that not every member of the bar would be allowed entry, Martingayle said. He did not elaborate on why, but said simply that every member would go, or none of them would go.

The Washington Times

Virginia State Bar President Kevin Martingayle denied that the trip cancellation was the result of any anti-Semitic views, and said the issue occurred when the bar association realized that many of its members would not be allowed to go on the trip because of Israel’s strict border laws.

Mr. Martingayle said that the petition did not play a part in the bar’s decision to cancel the trip but did draw attention to the fact that many of the VSB’s lawyers would not have an equal opportunity to participate.

VSB never has provided details on which members would be barred on discriminatory grounds (as opposed to legitimate security grounds specific to the person), and how it made that determination. But clearly, based on the public statements, the communications with the Israeli Embassy were deemed critical.

In a Sunday night, March 29 updated explanation, VSB again emphasized the communications with the Israeli Embassy, in pertinent part (emphasis added):

On Friday March 27th, we canceled the Virginia State Bar’s planned Midyear Legal Seminar trip to Israel. The decision was based primarily on a U.S. State Department advisory: http://travel.state.gov/content/passports/english/country/israel.html, “Entry, Exit & Visa Requirements.” We were forced to conclude there were potential difficulties some of our VSB members might face in obtaining entry to Israel. Additionally, we were well short of the required number of confirmed attendees necessary for the trip to proceed.

President-elect Edward L. Weiner, chair of the Midyear Legal Seminar Committee, communicated with the Israeli Embassy. An embassy official expressed a desire to facilitate the trip but acknowledged that security protocols are strict and could lead to exclusion or restriction of some VSB members.

In the face of this information, we felt it necessary and appropriate to forego this trip….

As explained in a prior post, the State Department advisory sheds no light on whether any particular VSB member or group of members would in fact be barred entry. Israel receives tens of thousands of visitors each year from Muslim countries, without problem.

The State Department advisory speaks only of some unspecified number of cases in which some people have been more intensively questioned or delayed entry, just as happens at U.S. ports of entry.  (See this CAIR alert for complaints about U.S. entry policies.)

Rather, the personal communication with the Israeli Embassy was key to VSB’s defense of its actions, as quoted above.

Israeli Official Denies, VSB Walks Back Claims

An Israeli Official I have communicated with, however, denies both the nature and the substance of the alleged communications described by VSB. That Israeli Official denied the general accusation that VSB members would be barred from the Israel trip based on religion or ethnicity: “Absolutely false. A pathetic and baseless allegation.”

As to whether there even was a substantive conversation on the topic, the Israeli official said: “We are not aware of any conversation with the Embassy on this issue.” That Israeli Official added: “We deny that anyone at the Embassy said ‘not every member of the bar would be allowed entry.’  Anyone who would suggest that is lying.”

I reached out to both Martingayle and Weiner for comment and reaction. Martingayle did not respond (he has not responded to any of my emails asking questions or seeking an interview), but Weiner did respond.

Weiner stated that he was the only one, to his knowledge, from VSB to have a substantive communication with the Israeli Embassy.  Weiner acknowledged, however, that the Israeli Official’s denials were accurate.  Here is the email exchange:

WAJ:

I understand you are in trial today, but hopefully you can give me a quick response to this specific issue as I am writing about this today.

An Israeli Official with whom I communicated denies that the Embassy had a conversation with VSB regarding entry requirements, as attributed to you in The Washington Post :

Weiner said the group also called the Israeli Embassy and was told officials could not guarantee that someone in the group would not be questioned or stopped.

Do you have a reaction to this denial? Can you provide information about the call, including who were the participants?

I hope you will respond so I can include your position.

Weiner (emphasis added):

I agree. Although I asked about entry requirements, I was told that was a security matter . The embassy could not speak to and couldn’t make representations about what security would require.

Weiner follow up:

I would add that I understood the man couldn’t speak to how people would be handled upon attempting to enter Israel when I couldn’t tell him who the people were

WAJ:

To your knowledge, were you the only one from VSB to speak with the Embassy?

Weiner:

Yes only I spoke with the embassy of any substance. My assistant made some preliminary calls to find a person to speak with

So the key defense, that the Israeli Embassy not only could give no assurances that members would be able to attend, and but even suggested that some VSB members would be barred entry to Israel, has no substance to it.

At worst, by Weiner’s own account, an Embassy employee said that he couldn’t comment on who would or would not be allowed to enter Israel without knowing the identities of the people.

That not only makes perfect sense, it actually contradicts the VSB claim that discriminatory policies would bar whole classes of people.

Unanswered Questions

So how did VSB go from a March 25 email calling on members to sign up, to a March 27 cancellation email accusing Israeli of broad discrimination necessitating that VSB cancel the trip to protect members?

I had an email exchange with Weiner on that as well:

WAJ:

Back to my original question:

I saw you quoted today in The Washington Post.

Weiner said that it was his idea to hold the November event in Jerusalem but that such plans are contingent on sufficient participation. With an April 1 deadline for having 60 members signed up, the group had only about 25, he said. “We were looking way short,” he said.

Was there any sort of penalty or other fee that would have applied had the trip been cancelled on or after April 1?

Weiner:

The April one date was imposed by airlines and hotels who would not hold blocks of rooms or seats. So the trip would just be canceled ,no big deal .this is just a voluntary trip offered to our members. The press seems intent on making some political social issue here -there is none. I am amazed at where the word boycott ever ever came from…..

WAJ (emphasis added):

Why not just cancel the trip for insufficient sign up? The reason it’s called a boycott is because of the broad accusation of Israeli discrimination as a key reason for the cancelation in the March 27 email. How does the organization go from encouraging people to sign up on March 25 to an accusation two days later that discriminatory policies would prevent some members from attending?

As of this writing, I have not received an answer to that last question.

It’s a question that needs to be answered.

If VSB had simply cancelled the Israel trip for insufficient sign up, no one would have cared. The April 1 deadline at which the trip would effectively self-cancel was just a few days away, and the sign up was far short.

This all makes no sense.  I have my theories, but let’s let the evidence come forward.  VSB needs to make all its records available.

Judicial Watch Files FOIA Request for Legal Insurrection

To that end, this afternoon Judicial Watch filed a Freedom of Information Act Request on behalf of Legal Insurrection and Virginia resident Daniel Halper (who writes for The Weekly Standard and is a Virginia resident). That FOIA request is embedded below.

We will get to the bottom of this.

It’s becoming more and more clear that VSB owes its members, the citizens of the Commonwealth of Virginia, and the people of Israel an apology for the way in which this was handled.

FOIA Request to Virginia State Bar – Judicial Watch 3-30-2015

UPDATE 3-31-2015, 6:47 p.m. I received the following email from Edward Weiner asserting that I inaccurately quoted his emails. In fact I quoted them precisely. He is asserting that I said he never had a substantive conversation with the Embassy. I didn’t say that, in fact I quoted him saying that he had substantive conversations. I said that as the result of his email admissions there appeared to be no substance to the claims made about Israeli Embassy statements:

So the key defense, that the Israeli Embassy not only could give no assurances that members would be able to attend, and but even suggested that some VSB members would be barred entry to Israel, has no substance to it.

The sub-heading also makes clear the reference:

Turns out key communications with Israeli Embassy used to defend cancellation were non-substantive.

The key communications attributed to the Israeli Embassy on the point at issue were non-substantive, which is not the same thing as saying there were no substantive communications at all.

In any event, here is Weiner’s email, in full:

Dear Prof. Jacobson,

You misquoted my earlier email to you by saying that there were no substantive conversations with a representative of the Israeli embassy. I will try to clarify again. I asked my assistant to call the Israeli Embassy to learn who I might speak to about a group trip to Israel. I then did have a conversation of SUBSTANCE with a gentleman from the Israeli Embassy, Office of Regional Affairs.

At the peril of being further misquoted, I will continue to engage. You ask: Why not just cancel the trip for insufficient sign up? In retrospect it sure would’ve been a lot easier.

Allow me to put this in perspective. The Virginia State Bar has approximately 50,000 members. Each year, the Midyear CLE (Continuing Legal Education Seminar) generally draws 65 to 80 members – certainly one of our smaller programs.

Israel was selected as the location for 2015. The proposed trip was advertised for months. At the end of March, with an April 1 deadline to secure airline and hotel reservations, we were only at 1/3 of the 60 (I believe we had 17 people signed up) attorneys needed to make the trip “a go”. When we sent out the March 25 email message regarding our summer convention in June, President Martingayle included a reminder about the deadline for the Israel trip. Shortly after that, we received a petition that some of our members would feel unwelcomed in participating. At that moment, we had more members opposed to the trip than were signed up for it.

When it was decided to cancel the trip on March 27, we were wholly unaware of any efforts to boycott Israel. We now find ourselves in the midst of a political issue that we never saw coming and which played absolutely no part in our decision either to go to Israel in the first place or to cancel the trip. I assure you there was no intent to discredit Israel. The cancellation of the trip was not intended to opine on Israel’s security measures. To further clarify, the quote in President Martingayle’s March 27 letter is as follows: “It was stated that there are some unacceptable discriminatory policies and practices pertaining to border security that affect travelers to the nation.” It is important that this quote not be presented as President Martingayle’s opinion since it was taken from U.S. State Department advisories and is being presented as such and not the broad accusation that you made it out to be.

The VSB has not and will not in any way imply that Israel’s security concerns or entry procedures are improper. We fully recognize that every country has its own particular security concerns and entry procedures, as does the United States. However, we were made aware that we could not guarantee that all of the VSB members would be allowed into the country without prolonged scrutiny (proper or improper). We recognize that obtaining that assurance in advance from other potential VSB destinations also might be problematic.

Unfortunately some chose to label the Virginia State Bar joining a boycott of Israel. That is not the case. Our actions were not taken with any political agenda but merely to remain inclusive for all members of the Virginia State Bar.

We certainly did not intend to offend anyone by proposing this trip, or by canceling it.

Please be accurate in your Blog.

Ed Weiner
Edward L. Weiner
Weiner, Spivey & Miller,PLC
10605 Judicial Drive, Suite B6
Fairfax, VA 22030

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