“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.
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.
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.
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.
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.DONATE
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