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Part I: Pen Pal Joey

Updated: Apr 13

Sometimes, when I look over my ever-increasing to-do list, I am reminded of something Robert Benchley wrote: “Many people have come up to me and asked me how I manage to get so much work done and still keep looking so dissipated.” In my case, the dissipation probably comes from taking the time to answer emails from correspondents who I really should ignore. One of those correspondents is Fort Smith lawyer Joey McCutchen, who earlier this year decided to send me a series of very strange emails.

I have a previous history with McCutchen, which I suppose I should write about someday, but the bottom line is this: he has some highly inaccurate, but enthusiastically held, views about the law. I’ve ignored him in the past; perhaps if you read the emails from him I’ve reproduced below, you’ll understand why.

A few months ago, McCutchen’s latest salvo of emails began with a strange Freedom of Information Act (FOIA) request: he wrote the Attorney General demanding, among other things, copies of correspondence between her office and mine. McCutchen was kind enough to send me a copy.

Dear Mrs. Rutledge or designee, With this email, I hereby request copies of, or access to, the following public records, pursuant to the Arkansas Freedom of Information Act, Ark. Code Ann. Section 25-19-101 et seq:
  1. Any and all letters, memos, emails, electronic documents, other documents, or other notification or documentation of any type between the Arkansas Attorney General and Dan Greenberg regarding a proposed initiated act to put a cap on non-economic and punitive damages in medical injury lawsuits.

  2. Any and all letters, memos, emails, electronic documents, other documents, or other notification or documentation of any type between the Arkansas Attorney General and the Advance Arkansas Institute regarding a proposed initiated act to put a cap on non-economic and punitive damages in medical injury lawsuits.

  3. Any and all letters, memos, emails, electronic documents, other documents, or other notification or documentation relating to a ballot measure or amendment to limit non-economic and punitive damages in civil medical care cases. I ask that you make the record available for inspection and copying or provide the records within three working days of the request, as FOIA requires. I request that the documents be provided electronically if this is feasible. If not, I am requesting paper copies. Please notify me in advance if the anticipated cost to me of supplying the requested information will exceed the sum of $100.00. If you have any questions with regard to this request, please contact me. If this request needs to be sent to another person or entity, please notify me immediately and provide the name of the person or entity that the request needs to be supplied to. Thank you for your assistance in this matter. Joey McCutchen Trial Lawyer “Protect the 7th Amendment; it’s the one that protects all the rest.” The McCutchen Law Firm P.O. Box 1971, 1622 North B Street Fort Smith, AR 72902 Office: (479) 783-0036 Fax: (479) 783-5168 Toll Free: (800) 871-0036 CONFIDENTIALITY NOTE: The contents of this e-mail, including all attachments, may be privileged by the Attorney-Client privilege, the Electronic Communications Privacy Act, 18 USC §§ 2510-2521, and other applicable statutes and regulations. In the event that you received this e-mail in error or are not the intended recipient, please delete the e-mail and all attachments immediately and notify the sender at the e-mail address specified above. Thank you.

One reason this was a strange request is that the state Freedom of Information Act specifically exempts correspondence with the Attorney General. Sending that FOIA request to the attorney general is kind of like sending a FOIA request to Taco Bell – the only consequence of such a submission will be that the recipient of the FOIA request will think that the submitter is an idiot. (Another reason this was a strange request is that it contained the kind of stuffed-with-legalese “confidentiality note” appendix that has no legal import at all, but which is beloved by second-rate lawyers, but I guess that’s neither here nor there.)

It’s my view, however, that a dumb FOIA request sometimes deserves a smart- aleck reply, so I emailed him back:

Joey, Maybe I just don’t get your sense of humor, but you may wish to note that the state Freedom of Information Act specifically exempts the correspondence of the Attorney General. — Signed, Dan Greenberg, Attorney at Law To which, nine minutes later, he responded: I have no sense of humor when a dark money non profit is taking away 7th Amendment rights under the guise of freedom. Sent from my iPhone

Our email relationship spiraled downwards from there, and I suppose my next response to him was a bit intemperate. In fairness, though, I think it was warranted:

Dear Joey — Regrettably, your latest email suggests that — as usual — you have no idea what you’re talking about.
  1. All of the Advance Arkansas Institute’s spending is fully disclosed every year, as is required by federal law. 2. There is no 7th Amendment right that is affected by regulation of damage awards, as any remotely competent lawyer knows. Please tell your mom and dad I said hello. Do they write their racist and anti-Semitic letters all by themselves, or do you help with them? Cordially, Dan Greenberg

Perhaps my P.S. deserves some elaboration. Importantly, whatever I say about Joey McCutchen, I want to distinguish him from his father Joe McCutchen. Unlike Joey — who has only been sending me bizarre emails for the last couple of months – the elder McCutchen has been sending out insane communiqués for decades, in which he regularly explains that Jews secretly control the world, that Jewish theology commands the eradication of all non-Jews, etc. The elder McCutchen used to send my dad letters full of outrageous lies about me back when I was an elected official, complaining (for instance) that I refused to say the Pledge of Allegiance and arguing that this showed I was more loyal to Israel than the USA. (To be clear, and to repeat myself: both of the elder McCutchen’s statements were utterly false.)

The younger McCutchen, my more recent correspondent, has in contrast demonstrated no interest in racist or anti-Semitic ideas at all, confining his political activism to obviously non-racist goals – such as leading rallies in Fort Smith against changing Southside High School’s mascot (currently, the “Rebel”) and fight song (currently, “Dixie”). Surely the younger McCutchen’s cultural- preservation instincts have nothing to do with racist sympathies and everything to do with his aesthetic appreciation of the noble historical traditions of the high school he graduated from three decades ago.

Joey McCutchen didn’t precisely explain it that way to me in his next email, but he came close. He began by demanding that I reveal all of the Advance Arkansas Institute’s donors to him (we keep our donors’ identities confidential, precisely because we don’t want our donors to be the target of harassment by, just for instance, half-literate lawyers from Northwest Arkansas). I’ll let you read the rest of his letter:

…I’ll appreciate you sending me directly any and all correspondence between you and the AG. That way, you and AAI can be transparent and I won’t have to do a lot of legal research. My mother passed way approximately 22 years ago. If you want my thoughts on any issues, please just ask. I speak for myself. But, don’t think you can play the race card and distract me from my mission of preserving freedom and our constitutional rights- and exposing the truth. My reputation on race speaks for itself and I won’t be bullied. I look forward to receiving the information requested above. If you need additional information re my requests above, please let me know. P.S. If you have questions of my Dad or his wife, please ask them and I’ll do the same with your Dad. I bet you’ll get a response too Dan! Does that work? I’m frankly more concerned with your attack on the Bill of Rights, the funding of AAI and exposing the truth. Let’s keep our focus, ok? Sent from my iPhone

In fact, Joey was wrong about his dad: some years ago, I rang up the senior McCutchen and asked him why he was sending out false and bizarre accusations about me – by way of response, the senior McCutchen immediately hung up the phone.

But in any event, I decided at that point that both Joey and I would be better off if I gave Joey the last word. After all, I understand that it’s unfair to hold Joey (or anyone else in the world) responsible for what Joey’s dad says – or even what Joey’s stepmom, Barbara McCutchen, says. (If you don’t want to click on that link, I’ll tell you the bottom line: Barbara, like Joe, is extremely … uh … intrigued by Jews. I do want to apologize to Joey’s now-departed mom for my mistake, though: surely it would be a source of embarrassment for anyone to be confused with Barbara McCutchen.) And maybe it’s true that, as Joey wrote me, his “reputation on race speaks for itself” – but, given his great interest in preserving the symbols of the Confederacy, I am not quite sure exactly what such a statement would mean. After all, white robes and pointed hoods aren’t custom-tailored, you know; I’m sure they could fit everyone in the family.

In any event, I decided at this point that maybe we’d all be better off if I just didn’t reply to Joey anymore. Corresponding with irrational people has its pleasures, but it’s probably an unwise course of action over the long run. I stuck to that vow for 90 minutes. I then changed my mind when Joey McCutchen sent me yet another unsolicited email.

To be continued tomorrow: more unfiltered brilliance from Joey McCutchen!

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