Jenna Ellis, Sidney Powell, Rudy Giuliani, Joe diGenova
At least 1,500 lawyers—retired judges, law professors, DOJ alumni and two former presidents of the American Bar Association (ABA) among them—have called for bar associations to condemn Trump campaign lawyers and to investigate their post-election conduct.
The group Lawyers Defending American Democracy (LDAD) said in a press release on Monday that President Donald Trump’s close ally Rudy Giuliani, the Trump campaign’s senior legal advisor Jenna Ellis, Trump campaign lawyers Joe diGenova and Victoria Toensing, and “Kraken” freelancer Sidney Powell should all be investigated by Bar Associations for violating the ABA’s Model Rules of Professional Conduct, which “prohibits lawyers from making frivolous claims in court and engaging in conduct involving dishonesty, deceit and misrepresentation in or out of court.”
The group and the undersigned pointed to three ABA Model Rules in particular: 4.1(a), 8.4(c), and 3.1.
Rules 4.1(a) says that “In the course of representing a client a lawyer shall not knowingly: make a false statement of material fact or law to a third person.” Rule 8.4(c) says “It is professional misconduct for a lawyer to: (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” Rule 3.1 says that a “lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.”
Former ABA Presidents Laurel G. Bellows and Robert E. Hirshon notably signed the letter. Legal ethics scholar and New York University School of Law Professor Stephen Gillers previously argued that a disciplinary body could find that Joe diGenova violated a professional conduct rule when saying that Chris Krebs should be “drawn and quartered” and “taken out at dawn and shot.” Krebs was the director of the Cybersecurity and Infrastructure Security Agency, and President Trump fired him for saying that 2020 election wasn’t rigged. Some Democratic lawmakers made a similar case specific to diGenova, while others filed complaints against Trump campaign lawyers in general.
Gillers joined LDAD’s call on Monday for bar associations to “forcefully repudiate” the “behavior” of Trump campaign lawyers.
“It was predictable that Trump would attack the courts and other public institutions to sow distrust in the election results. Sadly, some lawyers are abusing their law licenses and positions as officers of the court to aid him,” he said. “‘President’s Lawyers Trash American Democracy’ is a headline we never expected to see. To mitigate the harm such tactics can inflict, the bar must forcefully repudiate their behavior.”
Former ABA President Bellows, also a former president of the Chicago Bar Association, said that bar associations should “disavow” Trump campaign lawyers.
“Our justice system only works when lawyers tell the truth and adhere to their oath. Every attorney, including the organized bar and disciplinary authorities, should disavow lawyers who trample the truth and undermine democracy through their false statements,” Bellows said.
George Washington University’s Jonathan Turley is one law professor who has consistently said this chorus of calls for disciplinary action against Trump campaign lawyers is an abuse. Turley, who has appeared on Fox News regularly as a legal contributor in the aftermath of the 2020 election, told Law&Crime that these letters and complaints—not new from either side of the political aisle—would have a chilling effect on legal advocacy and political speech protected by the First Amendment if they were to be accepted by bar associations.
“We have had such petitions on both sides of legal issues for years. Such questions are not answered by plebiscite but the underlying principles. Thus, my view is not changed by this [LDAD] petition,” Turley said. “While courts have dismissed some of these actions with prejudice, they have not imposed sanctions. I have criticized the performance of the Trump legal team and what I view as baseless conspiracy theories. I also repeatedly said that the affidavits are insufficient to overcome the considerable burden in such cases.”
Turley drew a distinction between Trump campaign lawsuits (which courts have not imposed sanctions for) and the alleged actions of Bill Price, a Republican lawyer from Florida. Price is under investigation by the Florida Bar Association because he allegedly encouraged Republicans to illegally vote in the Georgia runoff elections.
“I have also agreed that attorneys like the Republican attorney calling for illegal voting in Georgia should face a bar action,” Turley said. “However, these [Trump campaign] challenges seek review of a myriad of issues raised by an election that by any measure was novel in the percentage (and different rules) governing mail-in ballots. Moreover, the filings are supported by sworn affidavits. Finally, courts have recognized unlawful orders given before the election as well as the negation of some votes. They have balked at the relief being sought as well as standing claims in many of the cases. I fail to see how such requests for review review can be categorically treated as unethical.”
Turley slammed anti-Trump groups Lincoln Project for carrying out “campaigns of harassment against lawyers representing either the Republican Party or the Trump campaign.” In November, the Lincoln Project was, indeed, locked out of its Twitter account after it targeted Porter Wright Morris & Arthur attorneys Ronald Hicks and Carolyn McGee, posting their contact information online. The Porter Wright firm withdrew its representation of the Trump campaign days later.
Linda Kerns, an attorney representing the Trump campaign in Pennsylvania, said she received a harassing call from an attorney at Kirkland & Ellis. K&E was representing the commonwealth, and the “junior attorney” wasn’t even associated with the case.
Turley said he worries that bar associations will be similarly weaponized to punish attorneys who defend the unpopular or deter those attorneys from doing so.
“I oppose such retaliatory campaigns because they are meant to create a chilling effect on challenges. We have a court system that continues to function well in addressing these challenges. Those cases are important for this country. I have repeatedly said for weeks that I do not believe that these challenges will succeed and that Biden is the president-elect,” Turley said. “I have discussed the specific ethics rules raised by critics and I do not see the basis for such claims. Indeed, if these sweeping interpretations were adopted, state bars could be used to deter a wide array of not just legal advocacy but political speech. Historically, legal advocates for unpopular causes have been harassed and threatened with such actions to seek to deter their representation.”
Trump campaign lawyer Joe diGenova, after sparking outrage with his remarks, told the Washington Examiner that he meant “no harm” to Chris Krebs. DiGenova claimed he was joking.
“For anyone listening to the Howie Carr Show, it was obvious that my remarks were sarcastic and made in jest. I, of course, wish Mr. Krebs no harm. This was hyperbole during political discourse,” he said.
Turley wrote in a blog post on Dec. 4 that it was clear to him that diGenova was joking. While he condemned the diGenova remarks, he also said that the bar complaint filed by Democratic Reps. Kathleen Rice (D-N.Y.) and Ted Lieu (D-Calif.) is an inappropriate political use of the bar disciplinary process.
“While the comments by diGenova were worthy of condemnation, they were clearly meant as a joke. It was simply not funny, particularly in these increasingly violent times,” he said. “Nevertheless, these members have filed a bar complaint. Imagine the impact on free speech if lawyers could be pulled in front of state bars for such political statements. This was not in a filing in court. It was a comment on diGenova’s view of a failure to protect the election. This has nothing to do with the propriety of the underlying comments. I obviously disagree with it. I immediately condemned it.”
In the blog post, Turley also cited national security and whistleblower lawyer Mark Zaid’s response to diGenova’s statement, seemingly as illustrative of an extreme reaction.
“Mark Zaid declared that ‘no rational person’ who heard diGenova calling for a person to be drawn and quartered and then shot ‘would have taken it as ‘jest.’ No rational person,” Turley repeated for emphasis.
Zaid so happens to be one of lawyers who signed the LDAD letter. He also happens to be an attorney who has received death threats for defending an unpopular figure among President Trump’s supporters: the Ukraine whistleblower.
Law&Crime asked Zaid why he decided to sign the LDAD letter. He specifically cited diGenova’s comments, calling them dangerous.
“Lawyers have responsibilities that extend beyond the interests of our clients. We are held to a high standard to ensure we advocate for the interests of justice, and that certainly means we refrain from rhetoric or vitriolic statements that could bring harm to a third party,” Zaid began. “Having been the recipient of death threats for simply doing my job, I am particularly sensitive to the dangers espoused by careless or intentional comments filled with hate.”
“It is time for this to stop. I would hope any bar authority that has jurisdiction over Mr. diGenova takes swift and significant action against him, not only to demonstrate to him the inappropriateness of his comments but also as a message to other lawyers,” he added.
Hugh Macgill Professor of Law at UConn Leslie Levin, an expert on lawyer discipline and legal ethics, told Law&Crime last week that diGenova’s words, though “unbecoming of a lawyer,” did not in her view clearly violate a disciplinary rule nor rise to the level of criminal incitement.
“I don’t think anyone would think his words constitute incitement. There is no D.C. disciplinary rule that he clearly violated,” Levin said. “His language was unbecoming of a lawyer but is protected by the First Amendment.”
As for Turley, he said he will continue to defend both the courts that have ruled against the Trump campaign and the Trump campaign lawyers arguing the cases.
“I have publicly defended these judges in ruling against the Trump campaign and I will continue to defend these lawyers in raising these claims. They are all a part of a legal system that is working to bring greater resolution and clarity to these issues,” Turley said.
[Image via CSPAN screengrab]