Michael Delaney’s role as a lawyer in a notorious N.H. sexual assault case creates problems for his judicial nomination

By Jim Puzzanghera
The Boston Globe
6 minute read

In many ways, former New Hampshire attorney general Michael Delaney was a logical choice to be nominated to a vacancy on the US First Circuit Court of Appeals in Boston, and at first he appeared to be on a glide path for confirmation.

The 53-year-old Democrat from Lynn, Mass., had a distinguished legal career as a prosecutor, a state official, and in private practice. His political connections, both with New Hampshire’s two Democratic senators and with a former Republican senator, Kelly Ayotte, who tapped him as her deputy when she was the state’s attorney general, left open the possibility of bipartisan support.

But Delaney also has a stain on his resume, one that now is creating turbulence for his confirmation. The brewing controversy raises questions about whether one incident by a respected lawyer acting on behalf of a client should sink his nomination.

At issue is Delaney’s defense of the elite St. Paul’s School in a civil suit stemming from the 2014 sexual assault of Chessy Prout, then 15, by an 18-year-old senior, Owen Labrie, at the Concord, N.H., institution.

Delaney, then in private practice, filed a controversial motion objecting to Prout’s request to remain anonymous if the case went to trial, a move the Prout family and advocates for sexual assault survivors said was intended to force a settlement by the family.

The move infuriated Chessy Prout and prompted her to go public. She has since become an advocate for sexual assault survivors, including writing a book about her experience.

Her father, Alex Prout, said the family was dumbfounded when they heard last spring through New Hampshire contacts that Delaney was being considered for the nomination.

Alex Prout said they immediately began contacting officials to express their strong objections, including in calls with the Justice Department official vetting potential candidates and in a joint Zoom call with staffers for New Hampshire Senators Jeanne Shaheen and Maggie Hassan, who would recommend nominees to President Biden.

Prout also voiced her objection in a Globe opinion article. Her parents wrote an op-ed for an Asheville, N.C., publication and attended Delaney’s confirmation hearing.

Their campaign reached Senate Republicans, who seized on the controversy. Minority leader Mitch McConnell spoke on the Senate floor last month to decry Delaney’s nomination the day after several Republicans sharply questioned Delaney about his actions in the St. Paul’s case during his Feb. 15 confirmation hearing.

“To me, this is something that is disqualifying in your background,” Senator Marsha Blackburn, a Tennessee Republican, told Delaney. “Actions like this send a chilling message to young women in this country and I find it unacceptable and I will not be voting for your nomination.”

Delaney struggled to defend his actions in the 2016 civil suit, which ended with a settlement. The Prouts also have accused Delaney of tampering with witnesses in the criminal case, which he denies.

Delaney, then an attorney at the McLane Middleton law firm, told senators he was representing his client, St. Paul’s School, and denied the motion was intended to intimidate Chessy Prout, adding that the confidential settlement prevented him from discussing some aspects of the case.

“I have tried through my work as attorney general and as a front-line prosecutor to represent the interests of victims in all that I did,” he said. “I would ask this committee to consider the totality of my record over nearly 30 years as it reviews my qualifications.”

Several committee Republicans have joined Blackburn in declaring their opposition. Others are undecided.

“I was very inclined to support him because of Kelly Ayotte, but I don’t know,” said Senator Lindsey Graham of South Carolina, the committee’s top Republican. Graham said he was not impressed with Delaney’s performance at his confirmation hearing.

The White House said Biden remains committed to Delaney’s nomination as do Shaheen and Hassan, who are working to convince their colleagues he should be confirmed.

“Chessy Prout deserves a lot of credit for her continued advocacy on behalf of victims,” Shaheen told the Globe. “I don’t agree with everything she’s put out in this case . . . and that’s why it’s important to look at Mike Delaney’s entire record and see the good work that he’s done over many years.”

Many Judiciary Committee Democrats aren’t sold yet. Only Senator Mazie Hirono of Hawaii has said she’s a definite yes, although several committee Democrats said they hadn’t focused on the nomination and no vote has been scheduled. The panel’s chair, Dick Durbin of Illinois, said Tuesday that he’s still “taking a look” at Delaney’s record. And Senator Richard Blumenthal of Connecticut indicated he had unspecified concerns and wanted to review Delaney’s answers to written questions submitted by committee members after the hearing.

But opposing a Biden judicial pick is politically difficult for Democrats because of their narrow Senate majority. It also would mean derailing a nominee strongly backed by Shaheen and Hassan. Delaney was among “a number of candidates” they submitted to Biden, but the choice was his, said Hassan spokesperson Laura Epstein.

The political dynamic was evident in the response to questions from the Globe about Delaney by Representative Anne Kuster, a New Hampshire Democrat. Kuster, a sexual assault survivor herself, not only wrote the introduction to Chessy Prout’s 2018 memoir butalso brought Prout as a guest to the 2018 State of the Union Address.

“We have an epidemic of sexual assault in our nation and we must ensure that survivors are believed and protected,” Kuster said in a written statement to the Globe. Asked about Delaney by a Globe reporter in the Capitol on Tuesday, Kuster said, “I think the statement will stand for itself.”

The St. Paul’s civil case followed a high-profile 2015 criminal trial in which Chessy Prout remained anonymous. Labrie was acquitted of felony rape charges but convicted of misdemeanor sexual assault and endangering the welfare of a child. The assault was part of a campus contest known as “Senior Salute” in which graduating students competed to have sex with younger classmates.

After Labrie’s conviction, the Prouts sued the school, saying that the assault was a “direct result of [St. Paul’s] fostering, permitting, and condoning a tradition of ritualized statutory rape.”

Several victims-rights advocates have written to the committee supporting Delaney, who received the highest rating from the American Bar Association.

“He made work on sexual assault and sexual assault victims a priority,” said Kristie Palestino McKenney, the former director of the Granite State Children’s Alliance, who wrote a letter of support. She said the idea that he would pressure a young sexual assault victim to give up her anonymity “is just not, not Mike Delaney.”

But Kenyora Parham, executive director of End Rape On Campus, which works to end campus sexual violence and support survivors, said Delaney’s participation in a legal tactic used by other schools in such cases should disqualify him from serving as a federal judge.

“Maybe it was one time. We don’t know. But one time [is] too many,” said Parham, who has written to the committee to oppose Delaney’s nomination and has been encouraging sexual assault survivors to contact their senators. “It’s the same as a sexual assault survivor being assaulted. That’s one time too many.”