The president of the United States this week filed suit in federal court in Milwaukee seeking to overturn the results of the November presidential election results in Wisconsin, one of a number of key states won by president-elect Joe Biden.
And this has to do with the Olympic world — how?
In a turn that perhaps not even a Hollywood scriptwriter might dream up, the president’s lawyer in the Wisconsin case, William Bock III, was until recently — very recently — also very publicly general counsel for the U.S. Anti-Doping Agency.
Connecting the dots, the president is now being represented by the same lawyer who until days ago was the very capable chief litigator for USADA at the same time the highly controversial Rodchenkov Act, which USADA has ferociously championed, sits on the president’s desk, awaiting the president’s signature.
Does this seem appropriate?
Bill Bock // Kroger, Gardis & Regas, LLP
USADA is supposed to be politically neutral. Can you be any more non-neutral than trying to overturn a presidential election?
Too, Bock and USADA chief executive Travis Tygart keenly understand that some significant portion of the athlete community in the United States strongly supports the Black Lives Matter movement. Now the USADA lawyer is representing the 45th president in an election action?
Let’s start with one of the rules of lawyering, which non-lawyers may not fully appreciate.
An attorney, as every law student learns, is supposed to represent a client “zealously.” So even if President Trump has essentially lost every similar lawsuit he has filed in any number of other jurisdictions, if Bock wants to step away from USADA to howl at the moon in federal court in Wisconsin, we all get to make choices in life.
“Bill is an exceptionally talented litigator,” reads a statement that was published Thursday in a publication called Indiana Lawyer, attributed to former Indiana House Speaker Brian Bosma (R-Indianapolis), “and has extensive experience in both election and sports law.
“One of Bill’s strongest drives is to establish a fair, open and level playing field in all arenas. As he has in so many other matters, if the rules are not being followed, he will get to the bottom of it and find the truth.”
The truth is that Joe Biden won the election, and — absent an unforeseeably freakish event — will be sworn in January 20 as the 46th president of the United States.
In court Friday in Milwaukee, U.S. District Judge Brett Ludwig — a Trump appointee — said the case seemed “really bizarre.”
Ludwig scheduled another hearing for next Thursday. What’s truly bizarre, meantime, is that even if Trump through Bock were to succeed, and Wisconsin’s votes were to flip, Biden would still win the presidency. Biden has 306 electoral votes, Trump 232. The Electoral College meets December 14; Congress counts the electoral votes January 6.
Another truth: USADA expects the athletes it tests to be accountable, and then to be not just legally but ethically upstanding about what they’re doing and why. Indeed, USADA has made it clear it expects American athletes to hold themselves to a higher standard.
So what about Bill Bock, Travis Tygart and USADA in this context?
Did they — or USADA — do on behalf of the athletes what they expect the athletes to do?
In 2007, when Bock came on board, USADA put out a release saying he was the new general counsel, Tygart saying, “Bill shares our commitment to protecting the rights of America’s clean athletes to compete on a level playing field and to the importance of ethical decision-making to achieve the Olympic ideals,”
Now, 13 years later, did USADA put out a similar release explaining that Bock was stepping away either temporarily, or for good? No.
Search the USADA website and all you’ll find is — nothing. Literally. That is, Bock’s status as general counsel has disappeared from the site.
Bock’s profile at his Indianapolis-based law firm says that he served as USADA general counsel “from 2007 to 2020.” Nothing more.
A reasonable take is that Bock is on a leave of absence that, when this Trump lawsuit meets its expected end, will turn into a thanks-very-much-you’re-done from USADA with some exceptions — such as, say, the Alberto Salazar appeal, because of the effort required to get someone else up to speed.
Moreover, Bock, a recurring if not regular voice on Twitter amid the heady days of the Russian doping scandal, suddenly — abruptly — turned his Twitter account private.
Why? Attorney-client privilege? Work product? For goodness sake, the most public and vocal user of Twitter in the entire world is now his client. What secrets could there possibly be? We all know that the president thinks there was, in his words from a 46-minute address released on social media, “great voter fraud.”
Has USADA ever put out a release noting that Bock’s son, William Bock IV, has worked at the White House — both as an intern while in school at Patrick Henry College (motto: for Christ and for Liberty) and then after, as a paid “researcher and executive assistant?”
The connection might otherwise be unremarkable but for two factors.
One, as my professors at the Northwestern journalism school — steeped in Chicago-style politics — taught long ago, it’s worth asking how and why Bock IV came to have such sought-after positions.
Two, the Rodchenkov Act.
USADA wants the Act signed, sealed and delivered because it would give the agency broad reach and, theoretically, unilateral leverage in a global anti-doping system that over the past 20 years has been carefully hammered out so that one country — say, the United States — would not hold more power than any other.
USADA’s main problem in pursuing actions is that it is not a state actor — which, among other things, means it does not have subpoena power. A subpoena, in simple terms, means you get to order someone to answer questions in hopes of telling you what you want to know.
In the BALCO matter some 15 years ago, without subpoena authority, USADA managed to pry documents out of Congress to get the job done. In the Lance Armstrong affair in 2012, it also managed a workaround but was very clear, on page 3 of some 200-plus pages in what is called the “Reasoned Decision,” that “none of the evidence” came from a U.S. law enforcement investigation into Armstrong.
Bock was the lead author of that “Reasoned Decision,” which — to his credit — reads like a John le Carré page-turner.
What the BALCO and Armstrong matters, in particular, taught Tygart, Bock and others in the U.S. anti-doping scene is that for its many high-profile successes, USADA needed more. It needed something akin to subpoena power — but to get that power while holding on to its status as an independent agency.
Travis Tygart in Paris in 2018 // Lionel Bonaventure/AFP via Getty Images
Why the distinction?
A doping case must be proven to a standard that’s called “comfortable satisfaction,” defined as “greater than a mere balance of probability,” meaning more than 50-50, “but less than proof beyond a reasonable doubt,” meaning rock-solid, 99 44/100 percent, no ifs-and-or-buts.
In a criminal case in the United States, the standard — as is well known from thousands of TV shows and movies — is proof beyond a reasonable doubt. In such a case, too, an accused is afforded the protections of the Fourth, Fifth and Sixth and Fourteenth Amendments relating to matters such as search and seizure, the right to remain silent, double jeopardy and more.
Because the Rodchenkov Act has been written about mostly in the sports pages, the key piece of it, Section 6, has gone almost entirely unremarked upon — understandable because most sportswriters have not grasped the awesome authority it would give USADA.
Section 6 says that the Departments of Justice and Homeland Security, as well as the Food and Drug Administration, shall — for emphasis, shall — “coordinate with USADA with regard to any [defined] investigation … to include sharing with USADA all information” those agencies possess “which may be relevant.”
Shall is a no-wiggle-room word. It means must.
For USADA, this would be the mother lode: access to FBI 302s, the code-name for the reports agents write, and more. Much more.
Unclear — and sure to be a matter of challenge going forward — is whether, if the measure becomes law, USADA, by virtue of such evidence-sharing, becomes a “state actor” and thus any and all those accused might be able to invoke constitutional protections; whether a sanction imposed in a doping tribunal might invoke a compelling double jeopardy argument in a criminal matter, or vice versa; and more. Much more.
Also unclear is whether the Rodchenkov Act might spur Russia, China and others to write their own versions of such a law. On Thursday, John Ratcliffe, the U.S. director of national security — that is, America’s top spy — wrote an opinion piece in the Wall Street Journal under the headline, “China is National Security Threat No. 1,” declaring the Chinese strategy is “rob, replicate and replace.” If that’s the case, why wouldn’t China accept the invitation, the tit-for-tat, in advance of the 2022 Beijing Winter Games and go one step further than the Rodchenkov measure — and include American athletes?
The hypocrisy of the Rodchenkov Act, meanwhile, is almost unbelievable. It applies only to those “major international sport competition[s] governed by the “Code,” meaning the World Anti-Doping Code. That careful drafting excludes any entity that has not signed on to the Code. Who has not signed? Among others, the U.S. pro leagues — the NFL, NBA, NHL and MLB — and the NCAA. Those enterprises are doping-free? That’s a good one. Any hope of getting those entities to sign on to the Code now? Like snow in Dubai.
Further, this act is named after a gentleman who is now in hiding in the United States via the Witness Protection Program for reasons never disclosed. A man who is a proven liar and cheat, not the hero he is made out to be in the movie Icarus but rather the man who under oath acknowledged saying, “I do not give a fuck about fighting the doping,” In that instance, he sought to explain away the remark by saying he had been emotional when making it — all the more reason to believe he was telling the truth.
Why would President Trump sign a bill called the Rodchenkov Act? Isn’t there an argument that calling it that would be like sticking your thumb in the eye of the Russian president?
The Act, which made it through the House in 2019, passed the Senate on November 16. That day, USADA was certainly alert enough to issue a statement attributed to Tygart that thanked various Washington officials and said, “It is a monumental day in the fight for clean sport worldwide and we look forward to the Act soon become law and help change the game for clean athletes for the good.”
Eight days later, the measure went to Trump’s desk.
Unclear is the chronology by which Trump and Bock connected on the Wisconsin lawsuit.
Transparency, accountability and public policy would suggest that, as ever, sunlight would make the best disinfectant.
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Update:
On December 4, Trump signed the Rodchenkov Act into law.
In a statement issued by the White House, Trump, noting a potential executive privilege exception to section 6, said, “My Administration will treat section 6 of the Act consistent with the President’s constitutional authority to control the dissemination of information, the disclosure of which could impair national security, foreign relations, law enforcement, or performance of the President’s constitutional duties.”