Statement

Call for Bar Condemnation and Investigation of President Trump’s Campaign Lawyers

June 28, 2021

December 3, 2020

Editorial credit: Nathan Posner/​Shutterstock

More than 35 losses in election-related cases have made one thing painfully clear: President Trump’s barrage of litigation is a pretext for a campaign to undermine public confidence in the outcome of the 2020 election, which inevitably will subvert constitutional democracy. Sadly, the President’s primary agents and enablers in this effort are lawyers, obligated by their oath and ethical rules to uphold the rule of law.

Bar Associations need to condemn this abuse and bar disciplinary authorities need to investigate it.

The President put Rudolph Giuliani in charge of the Trump legal team. Notwithstanding their monumental string of losses, Giuliani, Jenna Ellis, Joseph DiGenova, Victoria Toensing and, until November 23, Sidney Powell, have persisted with press statements, purported “hearings,” and continuing litigation. Behind the fog created by this waste and distraction of the country’s attention is a President’s and his lawyers’ historic abuse of the judicial process. 

The strategy involves three prongs:

• First, without any basis in fact, the lawyers make press statements about Democrats’ widespread pattern of fraud — in an election federal officials have called “the most secure in American history.”
  
• Then, in courtrooms, where judges hold attorneys accountable, the lawyers  abandon fraud assertions, making speculative claims that judges quickly dismiss.
  
• Last, back before television cameras, the lawyers return to wild fraud and conspiracy claims that echo the President’s.

To quote from Mr. Giuliani’s November 19 press conference:

• “There was a massive attack on the integrity of the voting system . . . The people who did this have committed one of the worst crimes that I’ve ever seen. . . . They have trashed . . . dishonored . . . destroyed the right to vote in their greed for power and money. And there’s no doubt about it. This is not an individual idea of 10 or 12 Democrat bosses. This is a plan.”
  
• “[Democrats] picked the places where . . . judges would just dismiss [our fraud claims]. Because judges are appointed politically. And too many of them are hacks.”

Federal judges appointed by presidents of both parties, including by President Trump himself, have rejected the Trump legal teams’ factual assertions and legal claims, more than one in scathing terms. Factcheck.org called the public statements by the lawyers a “gusher of false and unfounded allegations.” Even Attorney General William Barr has stated that there is no evidence of widespread election fraud.

Still, Mr. Giuliani’s aim is obvious: to fuel Mr. Trump’s campaign to delegitimize the outcome of the election. Attorneys take an oath to support the Constitution. Lawyers who lie to advance the partisan interest of a politician or any client dishonor the constitutional system they’ve sworn to uphold, the legal profession and themselves.

That dishonor is especially clear in the case of Trump lawyer Joseph DiGenova’s outrageous November 30 statement on Newsmax that former director of the Cybersecurity and Infrastructure Security Agency, Christopher Krebs, should be “taken out at dawn and shot.”

A license to practice law is not a license to lie to the public on behalf of a client, whether doing so endangers one individual or the entire body politic. Indeed, American Bar Association Model Rules of Professional Conduct 4.1(a) and 8.4(c) put lawyers at risk of sanctions for engaging in dishonesty, deceit and misrepresentation — in or out of court. Under Rule 3.1, lawyers filing frivolous claims are also subject to sanctions.

The conduct of Mr. Giuliani and his colleagues is a disgrace. As 25 former DC Bar presidents stated on December 1, it is indefensible for lawyers to falsely proclaim widespread voting fraud, submit a pattern of frivolous court claims and actively seek to undermine citizens’ faith in our election’s integrity. 

We condemn this conduct without reservation. It demeans the legal profession and the multitudes of lawyers of all political persuasions who daily serve their clients and the public honorably. Our profession needs to affirm that this behavior grossly deviates from the bar’s deep commitment to democratic institutions and the fact-based processes that maintain our democracy’s vitality.  

We urge all lawyers and bar associations to publicly condemn this conduct and bar disciplinary authorities to investigate it. Silence and inaction are not options.

Signers

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