When Rudy Giuliani launched into his usual explosive conspiracy theories this week, it wasn’t in a tweet or at a press conference next to a porn store or on Fox News, but in a room federal courtroom, where he appeared as Donald Trump’s lawyer and lied to a judge. There must be consequences.
All lawyer jokes aside, legal ethics are a big problem, not least because they are essential to a functioning justice system. If lawyers can lie harmlessly, make up facts when they want to, our trials and hearings will become jokes.
And that’s exactly what happened in Pennsylvania on Monday, as Rudy spoke about everything from Rahm Emanuel’s crisis management theory to President Carter’s “prophetic” warnings about mail-in voter fraud and a tirade against the supposed “mafia” behavior of Philadelphia election officials. – none of it had to do with the legal case he was supposed to be carrying.
The painful monologue abruptly stopped each time Rudy hit the rails of the forensic interrogation. When asked the most important question in nearly every election trial, what standard of review should apply, he was caught off guard. For non-lawyers, it’s hard to explain how appalling this is. The exam standard is the kind of thing every first year law student learns. But rather than agree with the judge that the case required a “rigorous review” or argue that it called for a rational review, he simply argued for “the normal one.” If legal Twitter had a voice at the time, the cry would have been heard around the world.
But the answers got even worse on difficult legal questions. Take his answers on standing, the doctrine that determines whether your case should be heard in federal court. It’s one of the most baffling areas of American law, but not for Rudy, who proclaimed “I went to law school … I thought it was a simple test.” It’s not.
It was all bad legal practice, but it was not unethical. But what Rudy did next crossed a line: he lied. He didn’t turn, argue, or do his best on the evidence, he outright lied to a judge in open court. For that, he would have to lose his law degree.
In fact, Rudy’s first lie came before he set foot in the Pennsylvania courthouse. On Tuesday morning, Rudy presented a petition to represent the Trump campaign, which is a routine step for lawyers appearing out of state. If you are not licensed to practice in court, you must seek permission to plead. Unfortunately, Rudy was unable to complete this two-page form without committing perjury. Rudy claimed to be licensed in the District of Columbia, where in fact he is currently suspended for not having paid his membership fee.
This is a big deal. Being suspended from the bar for nonpayment is bad, but making a false statement about it is much worse. And if anyone was to know any better, it would be the former prosecutor who put people behind bars for these kinds of misrepresentations, whether it was lying to an FBI agent or perjury in court.
But lying about his own credentials was the prelude to the real fireworks: Rudy’s lies, unsupported by facts he presented to the court, about the election itself. Among other lies, Rudy claimed that hundreds of thousands of Pennsylvania ballots were counted without Republican observers. False. He claimed more than a million votes were cast illegally in Pennsylvania. False. And he even said that “they” (presumably President-elect Biden and his campaign) “stole” the election through widespread national electoral fraud. False.
We’ve all been inundated with this kind of harmful disinformation, and it’s easy to desensitize ourselves to public servants and their representatives who openly lie about our elections. But these lies acquire new power and pose new dangers when presented in court.
Many other Trump attorneys have been careful to avoid crossing that line, knowing it could cost them their legal license. A week before Rudy appeared in court, Jonathan Goldstein was questioned about evidence of voter fraud in Pennsylvania and repeatedly dodged the attorney: “To my knowledge, no.” Goldstein was ready to bring an unfounded lawsuit in court, he was ready to argue against the integrity of our election, but he was not prepared to lie.
That’s why on Tuesday night I sat down and filed my first legal ethics complaint, asking the New York Lawyers Grievance Board to investigate Rudolph William Louis Giuliani. Maybe they will throw it in the trash, maybe they will take it seriously, but either way, it’s time for the legal profession to respond.
We need to look not only at Rudy, but how lawyers have engaged in unethical behavior in the Trump administration. If we are to assert that we have an ethical profession, we must live up to the standards we set for ourselves. As I wrote in my complaint:
“While I recognize that Mr. Giuliani is a senior member of the bar with a background of public service, his experience should hold him to a higher standard, not condone behavior that would be easily sanctioned by a more junior lawyer. . I urge you to show all New Yorkers that our rules of ethics will apply to all lawyers, even those who are powerful, prominent and politically well connected.
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