Below is my column in The Hill on the suspension of Rudy Giuliani by the New York Bar. The widespread hatred for Giuliani may be blinding many to the more troubling aspects of the opinion by the New York Supreme Court.
Here is the column:
This week, New York’s Supreme Court took the extraordinary step of suspending Rudy Giuliani, former federal prosecutor and counsel to former President Trump, from practicing law. As a long-standing critic of Giuliani for his baffling, self-defeating and at times bizarre statements, I found the action was, on some level, reaffirming.
However, the fluid standard applied in Giuliani’s case raises serious concerns over how and when such suspensions will be imposed against lawyers in public controversies. Indeed, the Giuliani standard would seem to implicate a wide array of attorneys who straddle the line of legal and political advocacy.
The 33-page opinion is damning and embarrassing; in all likelihood, it will result in Giuliani’s eventual disbarment. It also is deeply concerning in its heavy reliance on Giuliani’s statements out of court. While lawyers have been disciplined for out-of-court statements in some cases, this suspension seems primarily a judgment on Giuliani’s public advocacy. The court states that when he uses
“his large megaphone, the harm is magnified. … One only has to look at the ongoing present public discord over the 2020 election, which erupted into violence, insurrection and death on January 6, 2021, at the U.S. Capitol, to understand the extent of the damage that can be done when the public is misled by false information about the elections. The AGC [Attorney Grievance Committee] contends that respondent’s misconduct directly inflamed tensions that bubbled over into the events of January 6, 2021 in this nation’s Capitol.”
Such rhetoric leaves the impression that the investigators and the court itself were eager to impose judgment on Giuliani for the Capitol riot and other unrest through a bar action. In an actual case for incitement, such a causal connection would be rejected by any court as a violation of free speech. Many lawyers can be accused of fanning unrest or even violence, in cities ranging from Washington, D.C., to Portland, Ore., through their declarations on subjects ranging from police shootings to election fraud.
Likewise, Democratic members of Congress have challenged presidential elections regularly and unsuccessfully, including challenges made at the certification of the votes before Congress. Many refused to recognize the legitimacy of Trump’s presidency. Yet there was no cry to disbar the lawyers or the members behind those challenges.
Take Marc Elias, one of the loudest Democratic voices denouncing Giuliani (and other Republican lawyers) as attacking democracy itself. The Perkins Coie attorney led efforts to challenge past Democratic election losses; in one such case, he argued that Rep. Claudia Tenney (R-N.Y.) effectively stole the election from Democrat Anthony Brindisi, arguing in court that “there is reason to believe that voting tabulation machines misread hundreds if not thousands of valid votes as undervotes, and that these tabulation machine errors disproportionately affected Brindisi.” That should sound familiar.
Elias, who heads a group called Democracy Docket, has been accused by critics of lying about past election controversies. Before the 2020 election, there was the 2016 election scandal based on the infamous Steele dossier’s sensational, unsupported claims of collusion between Trump and the Russians. However, throughout the election, the Clinton campaign and its lawyer, Elias, allegedly denied that it had funded the dossier. After the election, journalists discovered that the Clinton campaign disguised payments for the dossier as “legal fees” paid to Elias’ law firm. New York Times reporter Ken Vogel said Elias “pushed back vigorously, saying ‘You (or your sources) are wrong.’ ” Times reporter Maggie Haberman wrote: “Folks involved in funding this lied about it, and with sanctimony, for a year.” When Clinton campaign chairman John Podesta was questioned on the matter by Congress, he denied any contractual agreement regarding the dossier. Sitting beside him was Elias, who reportedly said nothing to correct the false information given to Congress.
So, Elias was accused in these reports of lying to the public, the media and Congress. He has every right to defend himself and prove his innocence on such allegations. Yet, none of the “leading lawyers” cited by the New York court or in the media called for a bar investigation let alone a suspension.
The fact is that many reckless statements are made by lawyers about elections and other controversies. Even President Biden has been confronted over his false statements about Georgia’s election law; rather than correct his claims, he has continued to repeat them – just as the court cited Giuliani for doing outside of court.
Lawyers often make sensational, false claims that inflame public opinion, such as insisting former Attorney General William Barr violently cleared D.C.’s Lafayette Square last year to arrange for Trump’s controversial photo op outside St. John’s Episcopal Church. The claim outraged many Americans, even though there was no evidence to prove it; several lawyers repeated the photo op myth as fact on TV. An inspector general and a federal court both later debunked the myth, but the damage was done: To this day, many people believe it. Nevertheless, I do not believe any lawyers should be suspended for such claims, which should be protected as free speech.
The New York court brushes over the free speech implications of its ruling with a conclusory statement that Giuliani knowingly misrepresented facts, even though it did not afford him a hearing on that or other questions.
It is not enough to declare “Don’t be like Giuliani.”
What is missing in this opinion is a clear standard for when the failure to establish a case — as Giuliani failed to do with his election fraud claims — is a disbarring offense. In reality, many cases collapse in court over insufficient evidence. Election challenges are made without access to critical records or data held by election boards or officials — indeed, litigants often go to court to gain such access.
Likewise, public interest lawyers often bring cases against the government, which classifies or withholds evidence. When I litigated the Area 51 case, I was suing a base that the government claimed did not exist, and all information about it was classified; we prevailed in establishing environmental violations but only after years of intense litigation and denials.
The concern in this case is that we are seeing a weaponization of bar investigations after a wide (and well-funded) campaign to harass Republican lawyers, their firms and their clients after the 2020 election. And it has worked: Many law firms are unwilling to take on Republican or conservative causes for fear of being targeted.
The Giuliani opinion fuels those concerns. Despite a damning account of exaggerations and falsehoods, it often reads more like a venting — rather than a vetting — of grievances against Giuliani. Instead of issuing a well-deserved reprimand, the court declared Giuliani to be a public menace if allowed to continue practicing law, even for the period of his own adjudication. The premature suspension made little sense. The bar was focused on Giuliani’s public statements, which will continue unabated by any suspension.
Nevertheless, the suspension thrilled many in today’s bloodsport politics. Yet while the court seemed to apply a special “Giuliani rule,” it is unlikely to stay that way if — to paraphrase Carl von Clausewitz — the bar becomes “nothing but a continuation of politics by other means.”