July 2020 Bar Bulletin
By Peter A. Talevich
“Do the right thing — even if it is the most difficult for you personally and may result in you losing your job.” It’s one thing to write these words. It’s another to live them. As it turns out, the next KCBA President John McKay has done both.
John grew up in a family of twelve children on Capitol Hill, in the post-war days where families of that size and in that neighborhood were common. The parents of this brood were John, a doctor who fought in World War II in the South Pacific, and Kathleen (“Katie”), a trained nurse. Katie and the elder John instilled in their children a sense of service leadership, which has animated their children’s careers and lives. The family attended Saint Joseph Parish, blocks away from their home, and were actively involved in the church. My father Tim, from a family of merely ten kids and the same age as John, grew up a few blocks away.
John’s Capitol Hill upbringing is a source of pride for him and most others who grew up in that place and time. To understand this a bit more, consider the reaction to an article written for the Seattle Times by Danny Westneat in March 2007. Westneat wrote positively of John’s career, but mistakenly described him as growing up in Queen Anne, not Capitol Hill. In a memorable follow up article entitled “What the Hill Was I Thinking,” Westneat described the hundreds of calls and emails he received from Capitol Hill natives “defending” John from such an accusation and extolling their own pride in Capitol Hill. “Life isn’t supposed to be so local anymore,” Westneat wrote. “Sure seems we miss it.”
John attended school at his parish St. Joe’s, then Seattle Preparatory School back when it was an all boys’ school. He then attended undergraduate at University of Washington and law school at Creighton University (the school at which his parents had married). In between, he served on the staff of Representative Joel Prichard (R-Washington).
John’s first full time legal job was with Lane Powell, where he worked with future judges like Thomas Zilly and James Robart. The values instilled in him at an early age quickly aligned with his private legal practice. During his first weeks at Lane Powell, an attorney told him, “We do pro bono at this firm.” And so John did. In addition to excelling as an advocate for his paying clients, John immediately joined a committee which set forth then-radical proposals to increase the diversity of the bar’s governing body. In the 1990s, during one of many periods where civil legal aid funding was imperiled, he served as chair of the Equal Justice Coalition, part of the brand-new Access to Justice Board. As explained by Ada Shen-Jaffe, who served as Director of Columbia Legal Services and Evergreen Legal Services, “John built the EJC into a national model for educating and mobilizing support for the notion that access to justice for people who would otherwise be shut out of the justice system is a fundamental right.”
After his second stop at Cairncross & Hempelmann, where John served as managing partner, his career took one of many surprising twists. He accepted the position of President of Legal Services Corporation, the federally funded nonprofit tasked with funding legal aid in the United States. I was in middle school finishing soccer practice one day when John showed up to meet my dad. At dinner that night, he talked to my family about his new job. I then lacked the understanding of our legal system to fully understand the challenge he faced and how truly unusual it was for a Seattle attorney in private practice to take this job — but I knew it was important.
John’s appointment came at an existential moment for the body. Originally formed during the Nixon administration with bipartisan support, Legal Services Corp.’s existence had been threatened during the Reagan administration. After regaining its previous level of funding in the first Bush administration, Legal Services Corp.’s survival was again at issue after the Republican Revolution of 1994. John, a lifelong Republican at that time, used conservative principles to appeal to those who viewed funding legal aid as a disfavored liberal priority. (Years later, John would quietly disclose that he no longer identified as a Republican.) With bipartisan support, the organization was able to maintain its historic funding levels. This is not to say that hard compromises were avoided, but funding for legal aid in Washington and other states is in a much better place today because of John’s leadership. He was also criticized by his fellow conservatives, but this would not be the first time that some mistook John’s principle for disloyalty.
Eight days after the September 11 attacks, President George W. Bush nominated John to be the U.S. Attorney for the Western District of Washington. John’s older brother Mike had served in the position under the first President Bush. John and Mike were only the second set of siblings to both serve in the position, which created issues of its own. Upon coming across an office policy with which he disagreed, John wondered, “What knucklehead put that in place?” The answer, it turns out, was his brother — who reports, “John could not wait to tell me about that conversation and his decision to change my good work.”
In those earliest post-9/11 days, John worked to balance the need for law enforcement to prevent future attacks with the preservation of civil liberties. He vocally supported the controversial Patriot Act and worked to enhance law enforcement cooperation with deployment of the “LInX” system. He would not tolerate discrimination against or blame to the Arab-American and Muslim communities, and resisted suggestions from main justice or the administration to take actions in the War on Terror that would violate the civil liberties of others. John shared with me the horror he experienced as a child, then still vivid in his mind, upon learning of the Japanese Internment, and he carried the view in his service that security could not come at the expense of civil rights — the Constitution provides for both.
Toward the end of my first semester of law school in December 2016, I read in the newspaper that John had resigned as U.S. Attorney to “return to the public sector.” I naïvely sent him a text congratulating him on his next move. But as we would all later learn, his resignation was not voluntary, and there were other top prosecutors who suffered the same fate. Whether it was his determination that no credible evidence supported voter fraud charges related to the 2006 Washington gubernatorial election, his avid support for the LInX system, or (most shockingly) his insistence on resources to solve the murder in the line of duty of Assistant U.S. Attorney Tom Wales, John had come to be viewed as insufficiently loyal to the administration.
At first, John went quietly. But Attorney General Alberto Gonzales and his subordinates then suggested that John’s termination, and those of his respected colleagues in several other offices, were performance based. No longer free to be silent, John and his colleagues spoke out and testified before Congress. John’s replacement ultimately ended up being a career prosecutor in that office rather than an interim political appointee. Indeed, President Bush (possibly chastened by this experience) later signed a bill preventing indefinite service of an unconfirmed interim appointee of the Attorney General.
But John already had a landing spot, albeit one that was not initially intended to be long term. John had started a visiting professor position at Seattle University School of Law teaching National Security Law and Constitutional Law of Terrorism. While I did not take a class from John while I was at Seattle — John was rumored to be a tough grader — I attended several of his classes for fun. I surmise that John taught not only to impart knowledge on these topics, but also to encourage his students to be a certain type of lawyer. Every class included real-world advice on practicing law in an ethical manner. His favorite? Do the hardest thing first every morning. John, not surprisingly, was exceedingly popular with students.
John has recently slalomed through significant public accomplishments like earlier in his career. He was an early advocate of the initiative legalizing marijuana in Washington, finding the societal effects of criminalization to exceed any benefit. John is believed to be the first major former law enforcement official to take such a position, which is now commonplace around the country. In 2013, he made a multi-year commitment to lead the U.S. State Department Rule of Law project in Ramallah, Palestine. He advised prosecutors and law enforcement on establishing systems and, again controversially, spoke out against the Israeli settlements in the West Bank.
Through his career, John has inspired others (myself included) to commit to diversity and inclusion, to commit to access to justice and pro bono, and to act with integrity regardless of your legal practice. His leadership of KCBA will advance these goals — like most everything else he has accomplished as an attorney.
Peter Talevich is a litigation partner at K&L Gates LLP. He is a former chair of the KCBA Young Lawyers Division and the 2018 KCBA Outstanding Young Lawyer.