When lawsuits began flooding state and federal courts after Election Day, the legal team for President Trump’s reelection campaign, and his supporters, said that as a candidate he was merely exercising his right to explore every legal remedy at his disposal.
More than four weeks and 40 losses later, observers in the legal community are aghast at how the campaign is using the judicial system to push baseless allegations of systemic voter fraud, and they want the lawyers leading the effort to be held accountable.
“I would like my right to practice law to mean something,” Laurence Tribe, a Harvard University law professor and leading constitutional scholar, told Yahoo News. “And if you can just use your law license to fling bulls*** around, if you can use your law license to take up the time of the court, consume their resources, and undermine the credibility of the legal profession on which the rule of law largely depends in this country — then that’s a terrible thing.”
Tribe and more than 1,000 current and former attorneys, retired judges and justices, law professors, former bar association presidents and concerned citizens have signed an open letter calling on bar associations to disavow the Trump campaign attorneys’ conduct, and on disciplinary authorities to investigate, the advocacy group Lawyers Defending American Democracy announced this week.
“A license to practice law is not a license to lie to the public on behalf of a client, whether doing so endangers one individual or the entire body politic,” the letter says. “American Bar Association Model Rules of Professional Conduct 4.1(a) and 8.4(c) put lawyers at risk of sanctions for engaging in dishonesty, deceit and misrepresentation — in or out of court.”
The group calls out Trump’s personal attorney Rudy Giuliani, his campaign’s senior legal adviser Jenna Ellis, and lawyers Victoria Toensing, Sidney Powell and Joseph diGenova. DiGenova, a former U.S. attorney for the District of Columbia, said during a broadcast interview that Christopher Krebs, the administration’s election security director who was fired by Trump for denying that the Nov. 3 election was tainted by fraud, should be “taken out at dawn and shot.”
Krebs has sued diGenova and the Trump campaign, accusing them of defamation and intentional infliction of emotional distress. DiGenova has described his comments as “hyperbole in a political discourse.”
Yahoo News reached out to the attorneys via email for comment on the letter.
The lawyers’ group says the attorneys engaged in a three-phase strategy that is motivated more by politics than justice: first, issuing false statements about widespread fraud that receive widespread attention; second, bringing less extreme allegations to court, where there are legal consequences for making false allegations but where judges quickly dismiss the cases or the lawyers themselves withdraw them; and third, floating more conspiracy claims in public.
The result is the sowing of disinformation, confusion and mistrust in the public about the outcome of the election.
This has indeed been the Trump campaign’s playbook. A brief look at the campaign’s statements and the attorneys’ Twitter feeds, and that of Trump, shows a host of falsehoods. Many lawsuits they’ve filed in state and federal courts have either been voluntarily withdrawn or dismissed by a judge. In a Pennsylvania case in which the campaign sought to prevent officials from certifying the election results, the judge even pointed out that Giuliani said during an oral argument that he disavowed an allegation of fraud, raising the question of why there was a case at all.
Recently, Giuliani and Ellis held public meetings in Arizona, Michigan and Pennsylvania where “witnesses” testified about observing suspicious activity during the ballot-counting process and Ellis told lawmakers they have the constitutional authority, perhaps even an obligation, to intervene in the electoral process.
Legal professionals who’ve watched this unfold see a partisan-fueled free-for-all in which the lawyers involved have abdicated their responsibility as officers of the court.
Every state requires new lawyers to take an oath to uphold the U.S. Constitution and the laws of their state. Generally, the oath requires attorneys to vow to never mislead a court or make false statements.
“We look to our lawyers to uphold the law and advance those constitutional principles,” Fernande R.V. Duffly, a former justice of the Massachusetts Supreme Judicial Court and Northeastern University law professor, who signed the letter, told Yahoo News. “And what I’m reading about [the campaign’s conduct] does just the opposite. I find it shocking. It is well beyond what would be considered ethical.”
For an attorney found to have violated a state’s code of conduct for lawyers, the course of action and level of discipline can vary. Laurel Bellows, a supporter of the letter, Chicago lawyer and former president of the American Bar Association, told Yahoo News that an investigation into alleged misconduct would come from a state disciplinary board. The bar associations’ obligation, she said, is to speak out against malfeasance and reaffirm attorneys’ commitment to the practice.
“This country cannot survive if people do not believe in the rule of law,” she said.
An investigation into an attorney’s conduct is typically prompted by an accusation or a complaint. For example, in Indiana, a person can file a grievance against a lawyer, which will either be dismissed or investigated by the state’s Disciplinary Commission. If the commission finds that the lawyer committed misconduct, a formal complaint is filed with the Indiana Supreme Court. The accused attorney can defend their conduct at hearings and in court filings.
Depending on the authority issuing the sanctions, punishment can range from a public reprimand to a temporary suspension or, in the most severe case, disbarment. Sanctions can also come from the judge in a case being brought by the Trump campaign, Stephen Gillers, a professor of legal ethics at New York University’s School of Law, told Yahoo News. Gillers signed Monday’s letter.
“So far, the judges have been what I would consider to be restrained,” he said. “There’ve been some sharp comments about the cases, but no discipline imposed on the lawyers. But that could change tomorrow. A judge could say, ‘This is intolerable, and not only am I throwing the case out, I’m demanding that the lawyers justify what they’ve done, or else’ — but that hasn’t happened yet.”
While supporters of the letter told Yahoo News it wasn’t appropriate for them to express their thoughts on what exactly sanctions should look like for the Trump campaign’s legal team, they were clear about how egregious they find the team’s conduct.
“Even when the cases get dismissed, it undermines democracy in the eyes of people who are reading this and believing it,” Duffly said. “And I think it’s very dangerous.”
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