Politics By Other Means: Why Giuliani's Suspension Should Worry All Lawyers
S E E D E D C O N T E N T
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."
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter @JonathanTurley .
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A legal double standard?
Of course.
Not at all. Rudy went well over the top with his complete bullshit over and over again in his capacity as trumps lawyer and as a private citizen. The only message here is act like a professional and not a goddamn raving madman.
You mean like when Hillary Clinton insinuated she had the 2016 election stolen from her?
Did they disbar her for that?
I may be wrong, but I believe it was his Ukrainian actions that caused this suspension, at least in part. Other than that, it sounds like his (beautiful/perfect) phone calls to various state officials about his desire to "find" additional votes, also contributed.
Yes you are. This is about applying standards for some and not for others.
Then what, specifically, was he suspended for? Hint: he wasn't suspended for your opinion.
There is no double standard here. Giuliani should be disbarred, not just suspended.
Jonathan Turley disagrees.
Who Is Jonathan Turley? Republicans’ Lone Expert on Impeachment
There is a reason why he is considered their "only" expert.
He was right though. All the democrat ideologues were wrong.
He may have been 'right' but he certainly wasn't correct.
The US Senate confirmed that he was right.
I stand by my statement.
That could very well be labeled as a "fools errand" given the evidence to the contrary.
The fools deny Trump's TWO impeachments.
Trump is the only President impeached twice.
Andrew Johnson and Bill Clinton only...once.
That doesn’t tell us anything. It could easily say more about the House of Representatives than it does about the president. In fact, I think it does.
A majority of Congress and the Senate voted guilty. Only arcane Senate rules requiring a super majority to convict kept Trump from being removed but he was still impeached.
TWICE!
You may want to check your "FACTS" HAHAHA
Was Donald Trump impeached twice, or not?
No, the vote in the Senate was fifty seven for conventing Trump and forty three no good Republicans against. The majority voted to convict including seven Republicans...
That was only one of two. That was my point. You said, and I quote, "A majority of Congress and the Senate voted guilty." and then sealed it with TWICE. And I pointed out no they didn't. BTW Congress is the House and Senate combined. The House is NOT Congress.
The majority of both the the Senate and the House found Trump guilty. Only the Senate's arcane rules requiring a super majority to convict kept Trump from being removed...
He is the only President ever impeached twice.
I feel like you need to review the impeachment trials. A majority of the Senate in the first trial voted to acquit on both counts. So arcane rules had nothing to do with him not being removed.
The second trial was held after he had already left office, so again the voting rules had nothing to do with whether or not he was removed from office.
The impeachments themselves were so partisan that - to repeat myself - they may say more about the House than they do about the president.
I don’t know if you know this, because it wasn’t widely reported, but Democratic leaders in Washington were actually planning and rehearsing impeachment in December of 2020 - a month before Trump even took office.
Better known, is the fact that several Democrats and/or political commentators openly contemplated impeachment of Trump long before he was even elected, also the day after he was elected, and on the day he was inaugurated. Democrats were clearly intent on impeaching Trump with or without a legitimate reason. That’s why it was so hard to respect the whole nasty business.
Trump is still the only President impeached twice and no amount of finagling or twisting can or ever will erase the ignominy of that.
You and Tex may go on being pedantic and pickaune as you wish to be. You may quibble as much as you like, but the fact still remains that a bipartisan majority of both the US Congress and the US Senate voted to convict and to remove Donald Trump from office.
The SEVEN Republicans in the Senate who voted to convict Trump surely did not do so for political purposes. Did they?
Good faith is always relevant. The Democrats did and said a lot to call their good faith into question. It’s not finagling or twisting to point it out.
None of that would be necessary if you just presented the facts fairly and honestly.
Calling seven people out of what? 46? “bipartisan” is a stretch given that you are trying to cite it as some kind of objective proof of his guilt.
Three Democrats voted to approve Neil Gorsuch to the Supreme Court. I think five Republicans voted for Elena Kagan. But I wouldn’t say either one of them enjoyed “bipartisan” support. Would you?
[deleted.]
[off topic, no value, meta, personal insult.]
Like I said, youmay quibble but cannot deny.
I have no idea what you are bitching about...
If you still wish to play gotcha on the pickaune details then I am done. Argument for argument sake bores me to death. Trump was twice impeached but the voters had to remove because most of the gop has no spines, no principles and no moral authority anymore.
I would tell you what I really think but...COH.
What in the world makes you think I’m angry? What specifically do you find to be dishonest?
There is no need for you to get personal. Just discuss the topic and you’ll be fine. We don’t have to agree on everything, but I think if you honestly read my comments here, you might see that we actually do agree on some things. Regardless, it’s just a discussion, not a fight.
Is there a point to your meme or are you just mastering the whole copy/paste thing?
Doesn't matter if he disagrees. His 'opinion' isn't worth diddly.
Jonathan Turley is no longer an objective commentator on legal/political matters. He is a mouthpiece for the right and has been for some time. I hope whatever his compensation from them consists of makes up for the massive loss of respect he has suffered.
Leave aside how you feel about him. What about the points he made?
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.
Answer that one.
There is a difference between failing to establish and misleading. What lawyers should fear is being employed by Trump, even the most ardent sycophant will in the end be soiled.
Just an aside, when should we expect to see an avatar change from Durham to Turley?
Rudy! Giuliani Leaves Voice Mail for Wrong Senator – Begs for Delay to Biden Certification (Audio)
I have to say I am not a fan of discipline from the Bar for out of court statements, whether it’s 1 wacky statement or 100,000. To my mind, that is simple free speech, to which all are entitled. Lawyers - especially political ones - say outrageous shit every day and it doesn’t become a reviewable issue for the Bar.
If you want to suspend him for bringing frivolous cases in court, that’s fine. But for shooting his mouth off on Fox News? We need to have a tougher collective skin that that.
No, this is really about all of Rudy's professional ethical lapses on things like him subborning perjury and making many, MANY, verifiably untrue statements in various court and filings regarding the 2020 elections. There is lots of evidence Rudi even conspired to implicate innocent persons of crimes they did not commit. That is BAD!
Giuliani brought shame and dishonor upon a whole proud profession. Lawyers take that shit seriously!
Yeah, I think there is plenty he did and said in front of a tribunal that warrants some kind of discipline. When he talks now, I just kind of assume that what comes out of his mouth will be nonsense.
I hope rudy eventually ends up in the same club fed as some of the mafia killers he put in there.
Part of the first comment put it very well...
pbinca says:
JT, you seem to be ready to exonerate this conspiratorial defiance the Constitutional on the grounds that it was mounted through public speeches, and speech is protected by the 1st Amendment!
I’m sorry, you cannot plan an overthrow of the Electoral College vote, and incite a march on the Capitol to bolster it, and then fall back on a defense of free speech. Other criminal conspiracies where the planners direct the actions of others to further the crime cannot fall back on a supposed freedom of speech directing criminality.
Rudy deserves much worse than he will get. And what about John Eastman? He, too conspired with Trump a grievous political crime which put the nation at risk of armed civil conflict. Giuliani, Eastman and Trump are guilty of a coup plot bearing quasi-Constitutional trappings.
Doesn't worrry me - IMO rogues like Rudy should never be permitted to dirty the legal profession.