The Disciplinary Railroading of Rudy Guiliani
The freewheeling and politically-ionized standards employed by the court to suspend Guiliani’s law license on an emergency basis without hearing erode trust in our justice system.
“The first thing we do, let’s kill all the lawyers!”
Dick the Butcher’s famous line in Shakespeare’s play King Henry VI, Part 2 was not, as many think, a disparagement of the legal profession, but an acknowledgment that potential despots – in that case, Jack Cade, an anarchist seeking to overthrow the government – must sideline those who defend the rule of law in order to achieve their authoritarian goals.
The New York State Supreme Court took a cue from Dick the Butcher last week when it suspended Rudolph Giuliani from practicing law.
The move violated the U.S. Constitution in at least two important ways. First, the court impermissibly punished the former mayor for exercising his First Amendment right to free speech, and second, it violated the Fourteenth Amendment’s requirement that any deprivation of property be preceded by a hearing.
The Parties
Several parties filed grievances against Giuliani. These included Reps. Ted Lieu and Mondair Jones, New York State Senator Brad Hoylman, and an organization called Lawyers Defending American Democracy (LDAD) – a group whose directors includes one member who serves on the board of Planned Parenthood and another who represented traitor Bowe Bergdahl and phony “whistleblower” and Trump impeachment instigator Lt. Col. Eugene Vindman. The disciplinary grievance from LDAD reportedly was signed by over 3,000 lawyers.
The court that issued the suspension order was the New York State Supreme Court’s Appellate Division. The panel consisted of five Democratic judges: Rolando Acosta, Dianne Renwick, Sallie Manzanet-Daniels, Judith Gische and Barbara Kapnick. (Notably, Gische had prior experience with Giuliani – she presided over the litigation of the mayor’s very messy public divorce from second wife Donna Hanover in 2002.)
Interim Suspension Standard
Like most professions, lawyers are bound to a code of ethics. In New York, attorneys must adhere to the ethical rules codified in the New York Rules of Professional Conduct.
Those Rules provide that an attorney “may be suspended from practice on an interim basis during the pendency of an investigation … upon a finding by the Court that the [attorney] has engaged in conduct immediately threatening the public interest. Such a finding may be based upon … uncontroverted evidence of professional misconduct.”
Interim suspension therefore requires that two elements be satisfied: (1) that the attorney engaged in past misconduct; and (2) that the attorney’s conduct immediately threatens the public interest.
Claims of Misconduct
The New York Rules of Professional Conduct include the following prohibitions:
- Rule 3.3(a)(1): “A lawyer shall not knowingly make a false statement of fact or law to a tribunal.”
- Rule 4.1: “In the course of representing a client, a lawyer shall not knowingly make a false statement of fact or law to a third person.”
- Rule 8.4(c): A lawyer “shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”
- Rule 8.4(h): A lawyer “shall not engage in … conduct that adversely reflects on the lawyer’s fitness as a lawyer.”
According to the Appellate Division, Giuliani violated these proscriptions because he made certain “false and misleading” statements about the 2020 presidential election “at press conferences, state legislative hearings, radio broadcasts (as both guest and host), podcasts, television appearances, and one court appearance.”
In a nutshell, the statements at issue were:
- In Pennsylvania, more absentee ballots came in during the election than were mailed out before the election. Giuliani apparently made this statement during two separate radio show broadcasts, one television episode, one meeting with the Pennsylvania State Senate Majority’s Policy Committee, and one meeting with the Michigan House Oversight Committee.
- Dead people voted in Philadelphia. Giuliani reportedly stated on two occasions that “he was investigating [the] claim” that dead people voted in the presidential election in Philadelphia. Giuliani also stated twice on his radio show that former Philadelphia denizen and heavyweight boxer Joe Frazier continued to vote years after he was dead and that “he is still voting here.”
- The vote count in Georgia was inaccurate. Giuliani purportedly made this assertion on December 3, 2020 when appearing before the Georgia Legislature’s Senate Judiciary Committee, during his radio shows on December 6 and December 22, and during an episode of Steve Bannon’s War Room: Pandemic podcast on January 5, 2021. The court found that Giuliani’s remarks were “misleading” because they did not mention that a post-election audit in Georgia contradicted his claim.
- Thousands of underage voters cast ballots in Georgia. Giuliani reportedly made this assertion on four separate occasions on his radio show. The Appellate Division stated that the Georgia Office of the Secretary of State investigated this claim, and that their audit revealed that no underage voters voted in the 2020 election.
- More than 2,500 felons voted in Georgia. Giuliani made this statement once during a War Room According to the Appellate Division, the Georgia Secretary of State investigated this claim and “identified a universe of 74 potential felony voters,” which was “nowhere near” the amount that Giuliani claimed voted.
- Security camera footage depicted Georgia election officials counting illegal ballots retrieved from suitcases hidden under a table. Giuliani showed “snippets of the video,” or discussed them, on podcasts, on his radio show, and at a hearing before the Georgia State Legislature. According to the Appellate Division, the footage was “viewed in [its] entirety by the Secretary’s office, law enforcement, and fact checkers who … all concluded that there was no improper activity.”
- Illegal aliens voted in Arizona. Giuliani reportedly told a group of Arizona legislators at a November 30, 2020 meeting that “[i]t is beyond credulity that a few hundred thousand [illegal aliens] didn’t vote.” Thereafter, on his radio show and on the War Room podcast, Giuliani either stated or “agreed with statements made by others” that tens of thousands of illegal immigrants had illegally voted in Arizona.
- Giuliani expressed uncertainty whether a lawsuit brought by Trump against the Pennsylvania Secretary of State included a claim of fraud. During a single court appearance in federal court on November 17, 2020 in the case of Trump v. Boockvar, Giuliani apparently flip-flopped when asked by the judge whether the pleadings – which raised a singular equal protection claim – also alleged fraud. He first told the judge that the amended complaint did allege fraud, but thereafter corrected himself, saying, “No, Your Honor …. it doesn’t plead fraud.” The mistake was understandable – the original complaint did include a fraud claim, but that claim had been withdrawn when the complaint was amended.
The Court’s Errors
In barring Giuliani from practicing law, the court made two fundamental constitutional errors.
First, it improperly concluded that Giuliani’s constitutionally-protected speech amounted to “misconduct.”
Next, because there was no evidence that Giuliani’s status as a licensed attorney presented a threat of immediate harm to the public, the court’s interim suspension of Giuliani’s law license without first conducting a hearing violated his Fourteenth Amendment right to due process.
The First Amendment
Each instance of “misconduct” identified by the court was, in fact, constitutionally protected speech. Yet the Appellate Division gave short shrift to Giuliani’s constitutional argument, asserting simply that the First Amendment was “not implicated” here. The court was wrong.
In Gentile v. State Bar of Nevada, the U.S. Supreme Court considered whether restrictions on attorney speech were permissible under the First Amendment. There, criminal defense attorney Dominic Gentile held a press conference at which he stated publicly that his client, who had been indicted earlier that day, was an innocent man who was being “scapegoat[ed],” and that the state had not “been honest enough” to indict the “crooked cops” who actually committed the offense.
Gentile was thereafter sanctioned by the Nevada courts for violating an attorney-ethics rule that prohibited lawyers from publicly making out-of-court statements that posed “a substantial likelihood of materially prejudicing” a court proceeding.
In a 5-4 decision, the Supreme Court found that Gentile’s punishment violated the First Amendment. Central to the Supreme Court’s decision was that Gentile was penalized for “political speech critical of the government and its officials” – a type of speech that “lies at the very center of the First Amendment.”
Although certain categories of speech – fighting words, true threats and obscenities –land outside the First Amendment’s protections, the remarks for which Giuliani was punished were none of these. Rather, they addressed the most political of topics, the U.S. presidential election. They questioned the integrity of the voting process and, at times, accused certain election officials of malfeasance.
The Supreme Court made clear in Gentile that such expression is at the core of the First Amendment’s free speech guarantee.
Giuliani’s entitlement to constitutional protection was more pronounced because most of his statements were made in his capacity as a member of the media – both as a host and a guest on radio and television programs and podcasts.
On this point, the Supreme Court’s decision in Pennekamp v. Florida is instructive. There, the Supreme Court overturned a contempt citation that a Florida court had issued to an editor of the Miami Herald, which had published two editorials and a cartoon criticizing the court’s handling of criminal cases.
The Pennekamp Court explained that speech by the media about pending court cases can only be abridged if it “creates a clear and present danger to fair and orderly judicial administration.”
And, the Court cautioned that the freedom of public comment “weighs heavily against” the mere possibility of harm. In other words, the danger cannot be speculative; “a solidity of evidence” is required.
But the Appellate Division’s decision failed to identify any non-speculative danger to any court case that Giuliani’s words created. That’s hardly a surprise because none existed – all of the actions brought by Trump were dismissed at the pleading stage.
The Appellate Division, citing Gentile, asserted that “speech by an attorney is subject to greater regulation than speech by others” because attorneys are “officers of the court,” professionals “trained in the art of persuasion,” and “a crucial source of information and opinion.” For these reasons, it determined that suspending Giuliani’s law license was necessary to “protect the public” from relying on what he had to say.
But the court’s reliance on Gentile is peculiar, because the Supreme Court in that case actually rejected the very premise on which the Appellate Division’s decision rests. It stated:
“If the dangers of [lawyers’] speech arise from its persuasiveness, from their ability to explain judicial proceedings, or from the likelihood the speech will be believed, these are not the sort of dangers that can validate restrictions. The First Amendment does not permit suppression of speech because of its power to command assent.”
Equally flimsy is the court’s contention that it could impose discipline without offending the First Amendment because it believed that Giuliani’s statements were untrue.
To be sure, certain false statements that are knowingly made – such as defamatory speech, perjurious testimony, and fraud – are not protected by the First Amendment. But the speech for which Giuliani was punished fell into none of these categories.
Moreover, some of the statements made by Giuliani are wrongly described by the court as fabrications. For example, Giuliani’s mischaracterizing a complaint as including a fraud claim – when the judge had a copy of the physical document and could see for himself what claims were included and which were not – is hardly a false statement or even a misleading one. At worst, it reflected that Giuliani was confused. Indeed, Giuliani immediately corrected himself to advise the court that the pleadings did not encompass such a claim.
Nor did Giuliani lie when he remarked that “he was investigating” whether dead people voted in the presidential election in Philadelphia. Further, his comment that Joe Frazier continued to vote years after he died and that “he is still voting” was simply the type of satirical flourish that the Supreme Court, in Hustler Magazine v. Falwell, found deserves constitutional protection.
The same holds true for Giuliani’s comments about the number of illegal aliens who voted. While the Appellate Division stated that Giuliani “failed to produce any sources … to support any of the figures he has presented to the public” on the issue, that does not mean that Giuliani’s remarks were untrue. In fact, the court cited no factual basis upending Giuliani’s claims.
And while the court asserted that Giuliani “misled” others because he did not mention that a state audit had confirmed the accuracy of the Georgia vote count, he had no obligation to share that information. Indeed, in a case called Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, the Supreme Court made clear that “one important manifestation of the principle of free speech is that one who chooses to speak may also decide what not to say.” This rule applies “to statements of fact the speaker would rather avoid.”
The Appellate Division ignored this bedrock First Amendment principle – it also turned a blind eye to the formal Comment to Rule 4.1, which provides that a lawyer “has no affirmative duty to inform an opposing party of relevant facts” – in favor of a rule that effectively allows the government to compel speech.
Even if some of Giuliani’s statements turned out to be untrue, punishing Giuliani for them infringes on his rights under the First Amendment. In the Falwell case, Chief Justice Rehnquist, writing for a majority of the court, presciently stated that falsehoods “are inevitable in free debate, and a rule that would impose [punishment] for false factual assertions would have an undoubted chilling effect on speech.”
The Appellate Division’s decision against Giuliani makes Rehnquist’s point. Lawyers now can be stripped of their livelihoods without a hearing simply for making statements that the state deems untrue.
Can a lawyer now be disciplined for saying “it’s raining cats and dogs?” For saying that an adversary wants “another bite of the apple” or is engaging in a “fishing expedition?” That certain evidence is “fruit of the poisonous tree?” If literal truth is the benchmark, all of these figures of speech – indeed, the use of all metaphors – will become verboten.
This vast expansion of governmental power has no limiting principle and threatens all expression – a point that Judge Alex Kozinski , who served on the Ninth Circuit, made powerfully in United States v. Alvarez: “If all untruthful speech is unprotected … we could all be made into criminals, depending on which lies those making the laws find offensive. And we would have to censor our speech to avoid the risk of prosecution for saying something that turns out to be false. The First Amendment does not tolerate giving the government such power.”
The Fourteenth Amendment
The suspension of Giuliani’s law license also offended the Fourteenth Amendment – which states that the government shall not “deprive any person of life, liberty, or property, without due process of law” – because it was done without any court hearing.
In the cases of Parratt v. Taylor and Hudson v. Palmer, the Supreme Court declared that when a person’s property rights are jeopardized, a hearing generally must be held before the property can be taken away. Only when the state must act quickly to prevent an emergency, or when the deprivation of property could not have been anticipated, will an after-the-fact hearing satisfy due process.
But in this case, Giuliani’s speech presented no emergency or unforeseen situation demanding a shoot-first-ask-questions-later response. Giuliani therefore was entitled to a hearing before the court pulled his license.
The Appellate Division resisted this conclusion, though, and claimed that there was an “imminent threat to the public” that only could be prevented by the immediate suspension of Giuliani’s law license without first holding a hearing.
What was this grave threat? Brace yourself, it’s a doozie.
Since the court was first asked to suspend Giuliani’s license, the former mayor has said on his radio show that: “immigrants voted illegally”; there were “underage teenage voters” in Georgia; “Joe Frazier voted from the grave”; and “the Philadelphia cemeteries empty on election day.” Oh, and Giuliani also disputed someone’s assertion that “only two dead people” voted in Georgia.
Also, because some states are conducting ballot audits, various legislatures are debating voting laws, and there are a handful of lawsuits challenging election reforms in states like Florida and Georgia, there is a “risk” that Giuliani will continue to make “false statements in the media.”
That’s it. Pick yourself up off the floor and put your socks back on.
The Appellate Division’s empty basis for casting aside due process would be laughable if it weren’t so serious. Nothing in its decision came close to establishing the type of imminent risk of harm that the Fourteenth Amendment commands as a precondition to dispensing with a pre-deprivation hearing.
Perhaps realizing as much, the Appellate Division maintained that it did not need to show an emergency because Giuliani’s underlying offenses were so serious – in other words, that “the seriousness of the offending conduct” can “alone satisf[y] the immediate threat requirement.”
Nope. The Constitution makes no such allowance.
Equally illogical was the court’s conclusion that the emergency suspension was necessary to take away Giuliani’s “large megaphone.” Giuliani’s “megaphone” exists not only because of his storied legal career, but also by virtue of having been a highly successful two-term mayor of New York City, including during the tragedy of September 11th and its aftermath, a former presidential candidate, an advisor to President Trump, and a radio personality.
As a radio host, Giuliani can still make public statements about the 2020 election regardless of the status of his law license. And given the unconstitutional exercise of power by the court, the suspension might well fuel his desire to become even more outspoken about it.
Double Standards
The Appellate Division’s decision smacks of spite and political comeuppance. It states that “[t]his country is being torn apart by continued attacks on the legitimacy of the 2020 election and of our current president, Joseph R. Biden.” It then references a Reuters/Ipsos poll that reported that “while only 3% of Democrats believe that Trump won the 2020 election, 53% of Republicans so believe.”
Such acerbic jabs like this compel the inference that this case was nothing more than a partisan grudge match between five Democratic judges and the GOP, and that Giuliani was simply the foil-du-jour.
That impression is reinforced by the fact that while Republicans like Giuliani are targeted, Democrats who engage in comparable, or worse, activity are left alone.
Take, for example, Stacy Abrams – a lawyer who never conceded her gubernatorial loss in Georgia, but instead advanced the calumny that Brian Kemp, her Republican opponent, “suppressed the vote,” even though there was no proof of that. Other Democratic lawyers like New Jersey senator Cory Booker and Minnesota senator Amy Klobuchar repeated that trope. Despite publicly peddling this phony narrative in the media and elsewhere, their law licenses were never threatened.
Hillary Clinton – also an attorney – blamed her electoral loss in the 2016 presidential contest in part on Donald Trump’s collusion with Russia. While that canard was definitively debunked by the Mueller Report after a nearly two-year investigation that cost upwards of $32 million, Clinton’s law license was never in jeopardy.
Speaking of Russian collusion, Rep. Adam Schiff – a lawyer and former federal prosecutor – perpetuated the myth that Donald Trump colluded with Russia, and went so far as to claim that he had ample evidence of it. Of course, that was a lie. Schiff, too, escaped unscathed.
And what of attorney and New York Governor Andrew Cuomo? Didn’t it adversely reflect on his fitness as a lawyer to send approximately 15,000 elderly nursing home residents to their deaths and then lie about it to state legislators and federal law enforcement? He also is alleged to have sexually harassed multiple women and used state resources to write and edit a book for which he pocketed a $5 million advance. Why are these serious misdeeds unworthy of discipline, but Giuliani’s snarky remark about Joe Frazier voting from the grave is?
How about the two New York attorneys – Colinford Mattis and Urooj Rahman – who threw Molotov cocktails at the NYPD last summer during the violent riots following the death of George Floyd? Public records from the New York State Unified Court System indicate that neither has been suspended from the practice of law. It’s inconceivable that those terroristic acts don’t justify immediate suspension, but Giuliani’s becoming momentarily discombobulated before a federal judge does.
Cancel Culture
Giuliani is just the latest victim of leftist “cancel culture” which has now metastasized to the professions.
Recently, a physician in Oregon had his medical license suspended because he refused to wear a mask and was outspoken about his belief that they are ineffective in preventing the spread of COVID-19.
And forensic reports authored years ago by Dr. David Fowler while he served as the chief medical examiner of Maryland are being reviewed now by the state simply because Fowler testified for the defense in the criminal trial of former police officer Derek Chauvin, who was found guilty of murdering George Floyd. This came after hundreds of doctors from around the country, who were outraged by the fact that Fowler testified for Chauvin, demanded state and federal probes into his medical license.
Judges are supposed to be immune to the pitchfork-wielding mobs. An independent judiciary is the shield of a free society. Courts are our backstop – a last line of defense against an overreaching state.
The willingness, however, with which the Appellate Division kicked aside the Constitution because Giuliani expressed views that challenged what it deemed to be acceptable public discourse should terrify everyone.
Conclusion
In Pennekamp, the Supreme Court unanimously declared that “free discussion of the problems of society is a cardinal principle of Americanism” that we must be “zealous to preserve.” The Appellate Division here did precisely the opposite.
Instead, it stated that Giuliani’s statements fomented a “loss of confidence” in our government and “generally damage[d] the proper functioning of a free society.”
But the freewheeling and politically-ionized standards employed by the court here did more to erode trust in our justice system than Giuliani’s public remarks ever could.
———————-
Ameer Benno is an appellate and constitutional law attorney. He was the Republican candidate for the U.S. House of Representatives in 2018 in New York’s Fourth Congressional District, and he frequently appears on national television and radio to give legal and political commentary. Follow him on Twitter at @AmeerBenno.
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Comments
First, these anti-Americans will come after the more well known people. THEN, they’ll come after the rest of us.
They’re already coming after the rest of us. The ‘white supremacy’ and ‘extremist’ witch hunt and inquisition is in full gear.
Apparently, though, NY attorneys can firebomb the police and retain their position at the bar. It is now apparent that law schools have killed your profession.
Nothing but evil will follow.
I think you’re referring to Boston attorneys. Unless something happened in NY that I’m unaware of.
Henry, yes there was an incident in NYC in the wake of George Floyd where two young leftist attorneys were caught with Molotov cocktails.
https://www.lawenforcementtoday.com/judge-extremist-attorneys-who-firebombed-police-car-can-still-practice-law-in-ny-but-giuliani-cant/
It’s about time one million of us assemble on the Mall in Washington, followed by a march to 1600 Pennsylvania Ave, where we taunt Joe to come outside for a push-up contest.
Ridicule them at every opportunity
If I allege that Giuliani made a misleading statement saying there were illegal aliens voting in Arizona and the court sanctions him, but the audit reveals there were in fact illegal aliens voting in Arizona, am I not guilty of making misstatements about the election?
If any of Giuliani’s allegations are proved true in any subsequent audits – the person’s alleging they are misstatements should have their law licenses restricted because they are in fact guilty of exactly what they claimed the Mayor was guilty of.
Does Guiliani really have a property interest in his law license? I thought the American legal system had cleverly arranged things so that state-issued licenses remain the property of the state, you just get to put them in your wallet until you receive a demand to surrender them.
Considering the effort and expense involved in acquiring a professional license — as opposed to, say, a driver’s license — the notion that a license to practice one’s profession is state rather than personal property, does seem challengeable under certain conditions, and I’d say Ameer has made a worthwhile argument that those conditions apply here.
It’s a handy railroading, like the legal pursuit of Trump, to prove that the justice system is corrupt.
You’ll have about half the population convinced of it right away and maybe more.
Assumes there’s any trust left to erode. There isn’t.
What is being done to Rudy is another data point supporting the conclusion the legal system cannot be trusted. That it is a political tool of the Democrat party and its supporters used to harass, pursue, persecute, and prosecute its political opponents. Banana republic style.
The Jan 6 political prisoners and their re-education by their government appointed ‘defense’ attorneys add another few hundred data points.
The lack of prosecution of the rioters who participated in the 4 months of riots after George Floyd accidentally committed suicide by OD add thousands more.
Then there are the really big ones.
An FBI attorney falsifies evidence to get a FISA warrant to spy on a presidential candidate and later his admin. He gets a slap on the writs.
The FBI and Dems use an obviously fictional ‘dossier’ to spy on, investigate, harass, and politically kneecap Trump’s admin for 3 years. No one in the FBI or Obama’s DOJ went to jail.
Hillary destroys 30,000 subpoenad emails. Nothing happens to her.
Two bogus unwarranted ‘impeachments’ of Trump by the Dems. The second not even presided over by the SCOTUS Chief Justice.
There’s no trust left to erode in our ‘justice system’
JHogan: The lack of prosecution of the rioters who participated in the 4 months of riots after George Floyd accidentally committed suicide by OD add thousands more.
Thousands were arrested. Fifty were prosecuted for felony charges just in Madison, Wisconsin.
If thousands were arrested, why weren’t hundreds prosecuted?
DaveGinOly: If thousands were arrested, why weren’t hundreds prosecuted?
Over a thousand were prosecuted, but many are still pending.
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JHogan: The Jan 6 political prisoners and their re-education by their government appointed ‘defense’ attorneys add another few hundred data points.
No one is being required to use a government-appointed lawyer, and most have their own attorneys. Showing remorse when admitting to a crime is a common way to elicit sympathy from the court, show that you are no longer going to engage in criminal behavior, and petition for a lighter sentence.
But having asked for a government-appointed attorney, said attorney should not be taking part in a brain-washing operation. If the attorney tells the client, “You must be believably contrite,” and the client asks, “Help me reach that state of mind,” that’s one thing. To have the court-appointed attorney take it upon herself to “re-educate” her clients is another thing entirely. It is the latter that is being complained of, not the former.
DaveGinOly: To have the court-appointed attorney take it upon herself to “re-educate” her clients is another thing entirely.
Sending your client to anger management classes or substance abuse meetings is common. The client doesn’t have to participate, and can even get a new attorney.
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JHogan: The FBI and Dems use an obviously fictional ‘dossier’ to spy on, investigate, harass, and politically kneecap Trump’s admin for 3 years.
Many of the chatterings documented in the dossier have been borne out, including that the Russian government was actively attempting to interfere in the U.S. election. Other aspects of the dossier have been called into question, however. Regardless, the Inspector General found that the dossier was not the primary impetus for the investigation, and that the investigation was properly predicted.
Meanwhile, we now know that Trump’s campaign manager was providing internal campaign documents to a Russian agent, knowing that the Russians were engaging in political interference in the U.S. election. That’s called collusion.
How about the Russian agent at the Trump Jr meeting who was working with Hillary’s henchmen at Fusion GPS? The one who Don Jr ejected as soon as they brought up the Magnitsky Act? Hope you’re getting your ramen at the boiler room today.
FOAF: The one who Don Jr ejected as soon as they brought up the Magnitsky Act?
You seem to be confused. No one was “ejected.” Donald Trump Jr. accepted the meeting after being promised damaging information about Hillary Clinton.
In any case, that doesn’t salvage the claim about whether the Trump investigation was properly predicated.
“Meanwhile, we now know that Trump’s campaign manager was providing internal campaign documents to a Russian agent, knowing that the Russians were engaging in political interference in the U.S. election. That’s called collusion.”
You leap to a conclusion that is not supported by the facts. Knowing that the Russians were engaged in election interference does not necessarily mean that the provision of internal data from the Trump campaign demonstrates that the campaign expected the data to be used to facilitate the interference. Likewise it does not demonstrate that the Trump campaign had any agreement with the Russians that they (the Russians) should use the data in such a manner. “Collusion” means “willingly working together towards an objective.” There’s no proof of this anywhere.
DaveGinOly: Knowing that the Russians were engaged in election interference does not necessarily mean that the provision of internal data from the Trump campaign demonstrates that the campaign expected the data to be used to facilitate the interference.
He says with a straight face.
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“slap on the writs”
A curious turn of a phrase when discussing the punishment of an attorney!
Nicely done, Ameer. Thank you.
Blatant hypocrisy should be a capital offense.
I have a few questions regarding the article
With respect to Gentile v. State Bar of Nevada the claim is that the speech should have been allowed because its a protected category. Thats not what the court was saying rather that a lawyer in connection with a case has a higher standard to adhere too.
“The speech of lawyers representing clients in pending cases may be regulated under a less demanding standard than the “clear and present danger” of actual prejudice or imminent threat standard established for regulation of the press during pending proceedings. See, e. g., Nebraska Press Assn. v. Stuart, 427 U.S. 539. A lawyer’s right to free speech is extremely circumscribed in the courtroom, see, e. g., Sacher v. United States, 343 U.S. 1, 8, and, in a pending case, is limited outside the courtroom as well, see, e. g., Sheppard v. Maxwell, 384 U.S. 333, 363. Cf. Seattle Times Co. v. Rhinehart, 467 U.S. 20.”
This seems a fair assessment giving the amount of litigation being pursued by Trump et all
“Giuliani’s entitlement to constitutional protection was more pronounced because most of his statements were made in his capacity as a member of the media – both as a host and a guest on radio and television programs and podcasts.”
This makes no sense, his fame has no bearing on the duties he has as a lawyer. Its his capacity as a lawyer that’s being addressed here not his celebrity status.
“Even if some of Giuliani’s statements turned out to be untrue, punishing Giuliani for them infringes on his rights under the First Amendment. In the Falwell case, Chief Justice Rehnquist, writing for a majority of the court, presciently stated that falsehoods “are inevitable in free debate, and a rule that would impose [punishment] for false factual assertions would have an undoubted chilling effect on speech.”
The issue here is that some of the things Giulliani stated were totally unsupported, in other words he may not have known they were outright falsehoods at the time but he should have had a good idea. It was patently obvious to everyone including people like Barr that there was nothing to the claims of fraud. The damning part which is cited in the decision is the reference to documents which never materialised, refence to avadavat
“In opposition to this motion, respondent refers to affidavits he has not provided (Giuliani affidavit ¶¶11, 50, 61, 62, 66). He also relies on a “confidential informant” (Giuliani affidavit ¶82). We do not understand, nor does respondent explain why, as a
9 controverted issue of misconduct based upon what he does not submit to this Court (see S.J. Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338, 342 [1974] [the plaintiff did not raise issue of fact where affidavit merely stated bald, conclusory assertions and there was no claim that facts were not within the plaintiff’s control]; see also Primiano Elec. Co. v HTS-NY, LLC, 173 AD3d 620, 622 [1st Dept 2019] [the defendant failed to raise an issue of fact by relying on the contents of an expert report which was, in turn, based on an unsubmitted report of a third-party’s opinion]). Nor will offers to provide information at a later time, or only if the Court requests it, suffice.”
Its also the case that Giuliani hasn’t even denied making false statements only that he didn’t do so knowingly. So I’m not clear why anyone would try and argue otherwise when the man himself isn’t even able to take that path.
For example “ve Bannon’s the War Room: Pandemic podcast on December 24, 2020. Respondent does not deny that his factual statement, that only 1.8 million mail-in ballots were requested, was untrue. His defense is that he did not make this misstatement knowingly. Respondent claims that he relied on some unidentified member of his “team” who “inadvertently” took the information from the Pennsylvania website, which had the information mistakenly listed (Giuliani affidavit ¶49). There is simply no proof to support this explanation. For instance, there is no affidavit from this supposed team member who is not identified by name or otherwise, nor is there any copy of the web page that purportedly listed the allegedly incorrect data.”
The decision makes great effort to discuss the extent and number of lies told by Guiliani its pretty fantastical to claim that he is innocent with respect to an extensive catalogue of lies and deception.
I’m also not clear what relevance others who have legal background who may or may not have lied has. This is given they aren’t actually acting as lawyers which is the whole point of this. Its about professional standards.
You ever hear of the boy who cried wolf?
Voyager already answered your question on a previous thread. “The fact that you asked that, and then just moments before dismissed a write up of it specifically as being from the right in response to the same quest up says that he is a dishonest actor here.”
You are a dishonest actor here mark311. Your questions are not real questions. You are just looking to hi-jack the thread so you can present your arguments. One day, perhaps soon, you will go the way of Ragspierre.
Yes of course I have heard if that story. It’s a laughable comparison since in the very thread you describe I’ve had very interesting discussions with some of the commenters. Just because you can’t come up with anything substantive doesn’t mean that others have your low standards.
No I’m not dishonest that claim fails for the aforementioned reason that actually some commentors on LI actually do engage and it’s often a very interesting conversation. I’d actually argue that it’s you who is dishonest since you seem incapable of even forming an argument, I’m not sure you even tried. All you do is diatribe and personal attacks.
“higher standards to adhere to”
Republicans always have higher standards to adhere to. Democrats can get away with anything and everything up to and including the death of a young woman as Ted Kennedy’s career, idolized by Democrats, proved.
Mark,
Ok. Let’s see how this type of conduct is addressed in the future. Based on this, Ben Crump will certainly not be able to utilize his normal freewheeling style of making sensational claims unsupported by facts in order to create or feed a media narrative which increases tensions and thereby creates pressure to settle the lawsuits he brings. Assuming of course that the NY CT is actually concerned about the actions rather than a disfavored actor.
I am not at all convinced that the NY CT will apply the same scrutiny or application of these codes of conduct which would result in similar sanctions or even a simple official disciplinary referral to Crump’s home State Bar.
Unfortunately the state of affairs in NY is likely to provide an opportunity to put this to the test for Crump or a similar figure. Lets see if they mean those acts are bad or only bad when done by some and not others.
Hi commochief
Yeah I’ve no problem with standards being applied equally if another lawyer is guilty of the same thing then sure.
I’m not really familiar with Ben Crump and the thing he says, probably helps that I ignore social media in its entirety
Mark,
Crump represented the Floyd family in their civil suit. He has a history that might be characterized as parachuting into a volatile situation in the wake of LEO shooting or use of force, making sensational claims about the events prior to the conclusion of the investigation and stoking tensions in furtherance of generating pressure on the city or agency to quickly settle the lawsuit he files.
To claim ignorance of Crump since April of 2020 seems bewildering to me. Especially in one who who posts opinions about these issues. You really should work to become more informed with the macro issues and players in this traveling passion play before offering uninformed opinions.
Hell just do a wiki search.
Thanks for that Commochief. To be honest he just isn’t an interesting figure in the sense that he was only representing the family. HIs views were entirely irrelevant to the Floyd case what was relevant is the facts of the case where the court case was much more instructive. If he becomes relevant to a discussion then sure ill research him. In this particular case by invoking Crump the case is being made by appealing to hypocrisy, that only makes the case for convicting both not convicting neither. If the argument is that NY is applying a standard unequally then sure that might be the case.
“You really should work to become more informed with the macro issues and players in this traveling passion play before offering uninformed opinions.” with respect id rather ask a stupid question or/and acknowledge aspects where I don’t know than pretend. Honesty in conversation is far more important than looking silly for asking a stupid question. Indeed by engaging in this discussion at all I’m being informed,
Mark,
Crump is in essence, Al Sharpton with a law degree. He is a major player in creating and advancing a major component of the d/progressive worldview; LEO kill large numbers of unarmed ‘blacks’ with impunity.
Justice Kennedy delivered the opinion of the U.S. Supreme Court, in Gentile v. State Bar of Nevada, that a lawyer, as an officer of the court, was restricted by Nevada Supreme Court Rule 177 from making statements to the press that had the substantial likelihood of materially prejudicing an adjudicative proceeding. Kennedy’s opinion restricted the limits of the lawyer’s speech to “materially” prejudicial effects on the proceeding, such as divulging the lawyer’s privilege access to information through discovery and client communication and to effects such as influencing court costs, change of venue, etc.. The NY Court erred in not showing these material effects.
Or, was this an error? Since 1974, the New York Court of Appeals judges (equivalent to Supreme Court Justices in other states) have been appointed by the Governor of NY. All seven current judges were appointed by Governor Andrew Cuomo. Also, the New York State Commission on Judicial Conduct is also appointed either by the Governor, these judges, or key leaders of the NY legislature. With one-party Democratic rule in New York, the appointments create political bias in the Courts and in the Judicial Conduct Commission.
I’m not actually clear that this case was that narrow. On reading it I would opine that it makes it reasonably clear that lawyers are held to a higher standard with respect to speech. It’s also fair to say that numerous court cases were ongoing at the time of the speech. Some of which proceeded to court. There have been something like 80 cases with respect to election fraud in 2020
Yes, you’re right that lawyer’s speech is restricted when they are involved in an ongoing court proceeding. Most of these cases were quickly dismissed due to a lack of standing, but his comments were made when they were ongoing. If Giuliani was acting as an officer of the court in any of the proceedings, then he has to carefully restrict his public speech to ensure it doesn’t affect any aspect of the proceeding. I honestly don’t know how involved he was, but I doubt it, because he was only licensed in NY and DC and that amount of legal work would have been overwhelming for even one person to direct, so it was likely contracted out to many law firms.
But, it’s not just lawyers that are held to a higher standard during court proceedings. If you lie to a federal officer whose investigation “materially” affects any collected evidence in a court proceeding, then you are also interfering with the court. That is a serious criminal offense. The first amendment right to free speech does not apply for anyone, when that speech that affects court proceedings.
Interesting points thanks,
Given all the unethical behavior and prosecutorial misconduct over the past 5+ years; given that renown Lawyers like Rudy Guiliani, Sidney Powell, and Lin Wood are “Officers of the Court”, I JUST WONDER WHAT THEY MAY NOW THINK OF THE JUSTICE SYSTEM THESE DAYS AND WHAT MAY BE REQUIRED TO GET IT BACK TO PROVIDING EQUAL JUSTICE UNDER THE LAW WHILE AT THE SAME TIME HOLDING ACCOUNTABLE THOSE WHO HAVE MADE IT A LAUGHING STOCK FAIRLY RESEMBLING ONES IN COMMUNIST HELLHOLES AND BANANA REPUBLICS.
This of course includes the John “Pedo Island” Roberts’ Supreme Court given the hard work and much promoted efforts to put “Originalists” on that Court, e.g., Amy Coney Barrett, Brett Kavenaugh, and Neil Gorsuch, that were going to be the Republic’s salvation from politicized, weaponized, and corrupt decision making.
As we watch President Trump’s Chief Financial Officer arrested in an attempt to coerce information to incriminate him by a weaponized District Attorney; MAGA Protestors who were arrested and held without bail for long periods of time over a phony charge of an Unarmed Insurrection that but for the FBI Informants and Agents was peaceful after being invited into the capital building while video is being withheld along with the name of the black Capitol Cop who shot and murdered unarmed Ashli Babbitt having already been designated to be free of prosecution; and while BLM/Antifa Communist Thugs who burned, looted, and destroyed billions of property in Portland, Seattle, Kenosha, and Chicago were arrested and freed without bail or never pursued, WE HAVE TO WONDER JUST HOW MUCH MORE AMERICAN PATRIOTS ARE GOING TO TOLERATE??
The real problem here I’d the weaponisation of the election result against ANYONE who questions its legitimacy.
The fact these people are working so incredibly hard to outlaw questioning the outcome should be sending chills down everyone’s spines.
It quite literally is outlawing free speech.
What a moronic claim. Who exactly has been held to account for claiming election fraud. One and that’s becuase he is a lawyer.
Certainly, you can’t be that naïve. What do you think motivates the way the “insurrectionists” of 1/6 are being rounded up, charged excessively, being denied bail, and being held in solitary confinement? Those people were claiming election fraud. Even admitting that they should have been arrested and should be prosecuted, only politics explains their treatment in the temporal space between those two actions.
They are being held to account for committing crimes. Its one thing to protest the result of an election its quite another to break into a building and beat up police officers. How have they ben charged excessively, that’s how the law works if there is evidence of a crime when that’s what’s prosecuted where their is evidence.
With regard to being denied bail that’s to general a statement – I’m not clear how many have this issue. Thus far its been reported as dozens as opposed to the hundreds who have been arrested.
I don’t condone solitary confinement and oddly enough Elizabeth Warren is on record speaking out against that. That’s an issue with US justice wholesale and there are numerous examples of those who shouldn’t be treated like that.
Given the evidence against these folks how could the outcome be any different? Politics doesn’t enter the equation if person A commits a crime and they are caught and there is sufficient evidence then this is what happens.
My non-lawyer take on this is:
Lawyers make claims.
They make these claims based on affidavits, observations, statistical analysis, and the like.
In court, sometimes these claims are validated, and held as facts.
Sometimes these validations are overturned, and determined to be false.
Disbarring a lawyer for making claims, even if the claims later are examined and found questionable, is just stupid. Where would we find a lawyer who had *not* been disbarred, in this case?
Example: X number of Illegal aliens voting in an election. Rudy claimed it happened. Statistical examination of the numbers certainly makes it a possibility. The elections officials promptly brayed that such a thing could never happen. No ballot-by-ballot examination was done, but the media promptly took the side of the elections official and proclaimed it to be FACT beyond any criticism and therefore off-limits. A skeptical person might say “Well, why don’t we open up that box of ballots and look at them, if you believe they have dots where you claim?” Apparently, that’s criminal WrongThink now.
I’m really interested in seeing what comes out of Arizona. The Usual Suspects have been screeching really loud, and the more they screech their innocence, the more curious I get about what’s in the box.
Despite the extremely violent nature of the attack in which Rahman reportedly tossed a Molotov cocktail into the console of a police cruiser before hopping into a getaway car driven by Mattis, and the fact that the pair of left-wing attorneys were found to be producing and distributing Molotov cocktails to Black Lives Matter and Antifa-aligned radicals, federal prosecutors have been working hard to hammer out a plea deal for the pair of violent offenders.
According to the New York Post, both parties remain locked in negotiations with federal prosecutors and a federal judge has granted the pair a number of opportunities to work something out with the prosecution before having to face trial like a mere ordinary citizen. Both Mattis and Rahman remain out of jail, standing in stark contrast to the treatment received by January 6th Capitol Hill demonstrators who have reported facing Gulag-style conditions and severe physical abuse while awaiting trial in a Washington, D.C. jail on nonviolent charges.
…
While the pair of violent, far left-wing attorneys are still permitted to practice law in New York, Trump attorney and former New York City Mayor Rudy Giuliani is not, having seen his law license suspended without any form of due process by the New York State Bar Association for daring to question the Democrat-media complex narrative surrounding the 2020 Presidential Election.
https://nationalfile.com/judges-say-far-left-attorneys-who-firebombed-cops-for-blm-can-still-practice-law-in-new-york-rudy-giuliani-cannot/
From the case cited it is very clear that everything Giuliani said on radio, and in interviews with press or in the court of public opinion was protected by precedent so examples 2-8 are all clearly examples of railroading but would the official nature of his claims in the first fall outside of the protections stated? If he lied to the PA and MI state house leadership that unlike what he claimed on radio, or not being up to speed on what he was alleging in court would be new territory wouldn’t it? The allegation appears to be that Giuliani committed perjury because that one wasn’t to private citizens or the court of public opinion.
You mean an attack on an empty vehicle. That’s considerably different to Jan 6th which resulted in 140 assaults on LEO. Your characterisation seems to be opposite to what the facts state.
I think it’s a tad premature to know if the two lawyers will be practising don’t you.
So, attend a protest and commit property crimes and trespass and suddenly you should be treated as if you were also responsible for assaults on police officers committed by others? It seems by that standard the two Molotov attorneys, although they only committed property crimes, should be mistreated and abused by the system for the violent crimes committed against persons by others during the rioting, yes?
Many of the 1/6 protesters are NOT being held for crimes against persons. Also, the process has become the punishment now in this country. This is quite clearly the mark of political motivation behind a prosecution, even if otherwise legit. I thought a person had to be found guilty before being punished? Or is mistreatment of suspects excused by the severity of the charges?
Danny the claims made by guilliani were repeated and consistently lacking in any evidence. He made claims based on evidence that he has never presented. The lies were endless, baseless and absolutely lacking in credibility. As a lawyer he should have chosen his words careful with due regard to the actual evidence not the kraken.
At issue is he didn’t make those claims in court and the cases cited do give a very broad license to speech including outright lies outside of the courtroom.
Stacey Abrams told extremely similar lies repeatedly and hasn’t had her license yanked. I don’t like either lawyers behavior but double standards of which laws apply to which people are unacceptable in a Republic.
Sorry are you suggesting he could outright lie outside of court? That seems particularly egregious from a professional standards perspective. The effect on what you are saying is that the first amendment protects a lawyer from lying to their client. That doesn’t seem defensible to me.
Stacey Abrams isn’t a practising lawyer, nor did she tell ‘lies’ in context of ongoing civil litigation, nor was she representing anyone legally.
The problem with that is he didn’t lie to his client he lied to the public. I think he was lying on behalf of his client (exactly like Gentile) We have both pointed out here that nothing fraud related was actually alleged in court by the Trump legal team.
The first case cited was Gentile vs State Bar of Nevada in which the supreme court determined that a lawyer actually does have a right to lie his head off (which is what the lawyer disciplined in that case did).
If a judge determines that media appearances are prejudicing proceedings they could issue a gag order but that never happened. The judges weren’t pro-Giuliani biased they were perfectly willing to throw out bad cases, they clearly didn’t think Giuliani’s out of court speech was a threat (although I think we agree he was lying).
You mentioned irrelevant things about Stacey Abrams the decision states
““[t]his country is being torn apart by continued attacks on the legitimacy of the 2020 election and of our current president, Joseph R. Biden.” It then references a Reuters/Ipsos poll that reported that “while only 3% of Democrats believe that Trump won the 2020 election, 53% of Republicans so believe.””
If that only applies when Republicans are trying to undermine the legitimacy of a victorious Democrat that is the definition of a double standard. Hillary and Stacey Abrams and Adam Schiff all did exactly the same thing. The lies in their cases also are a lot worst than voter fraud (just look up the penalties for voter fraud vs treason). There were also all of the same negative implications plus more. If Russia wants Republicans to win and Republicans don’t immediately become Democrats what does that say about their loyalty?
The Russia bullshit didn’t just tear the country apart it resulted in normalized leftist violence which the DOJ continues to support to this day. You can’t disbar someone on the basis of undermining the legitimacy of an election if it only applies to one side.
Danny: The problem with that is he didn’t lie to his client he lied to the public.
Ethics rules do not allow an officer of the court lying to the public about a pending case wherein you are representing a client.
Oh. There’s no subscribe button. Curious.
As per usual the New York State Bar, the New York courts and the vile Dhimmi-crats have all further disgraced themselves. This is a vindictive and lawless punishment for a pro-Trump attorney and politician, assessed for an utterly contrived “violation,” and, intended to punish and to intimidate prominent Trump supporters; it’s as plain as day.