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Closing Arguments in Giuliani DC Bar Discipline Hearing [1]
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Date: 2022-12-09
Former New York Mayor Rudy Giuliani, a lawyer for President Trump, at a news conference Thursday at the Republican National Committee headquarters in Washington. Jacquelyn Martin / AP
For those of you who just want the bottom line, there was no decision today. Giuliani’s counsel submitted a last-minute memorandum, and they have given the Disciplinary Counsel an opportunity to respond. The hearing is now in “executive session.” They will notify the parties of a decision on December 14th, with a “reconvene if needed” date of December 15th.
The only reason they would reconvene is to allow the parties to present mitigating or aggravating evidence to determine sanctions. Giuliani’s attorney said they planned to present one witness if—God forbid—there was an unfavorable decision. Mr. Fox said he would not object if Giuliani wanted to submit letters instead of testimony. Indeed, Fox earlier in his argument acknowledged Giuliani’s prior record of public service, stating Giuliani was “admirable after 9/11.”
We should be grateful to the District of Columbia Bar Disciplinary system, which makes these hearings public. Most other bars keep such things closed to the public unless there is a finding to impose discipline.
The reason one wants to follow oral argument is not to hear the parties’ position (we already know this from their pleadings), but to see if we can sense where the decision is going by the questions being asked. So, here I will summarize the main “issue” arguments as well as my sense of the questioning.
Before getting to the final arguments, will also fill in more of the background on the case, as my earlier articles tended to focus on the hearing and left out a lot of the background. Regardless of what we might think about Giuliani himself, Americans need to fully understand the breadth and scope of what was being attempted even before January 6th.
First, to identify the participants. Mr. Hamilton “Phil” Fox is the lead attorney for the DC Office of Disciplinary Counsel who is spearheading this case. Associate Disciplinary Attorney Jason R. Horrell assisted on the case. Panel members are Robert Bernius (who presided), Carolyn Murrell, and Jay Brozost.
Giuliani is being represented by Barry Kamins, a former NY Supreme Court Judge, former President of NY City Bar, and adjunct professor of law at Brooklyn Law School. Co-counsel for Giuliani is John M. Leventhal, a form judge on the NY 2nd Judicial Court of Appeals.
The case that is the basis of this complaint is Donald J. Trump for President, Inc. v Kathy Boockvar et al. which was filed in Federal court in the Middle District of Pennsylvania. In addition to the Trump campaign, the Plaintiffs included two voters who did not even reside in the counties that were sued. The initial complaint contained allegations of fraud, but these were dropped in an amended complaint. The sole arguments in the amended complaint were a violation of the Equal Protection and Due Process clauses.
One allegation that was true was that counties did not have uniform procedures for opportunity to “cure” provisional ballots. This issue had already been litigated before the PA Supreme Court, which held that offering so-called “opportunity to cure” was not mandatory, but counties were free to do so. Mostly Democratic counties (who had higher rates of absentee voting) were more likely to allow provisional ballot curing, although this was not across the board or absolute.
Ironically, other than the Trump campaign, the two other plaintiffs in the case were voters who lived in Republican counties who refused them the opportunity to cure. However, instead of suing the counties which denied them this opportunity (and where they were actually registered to vote), they chose to sue the counties that allowed ballot curing. This purportedly constituted a violation of equal protection (based on the rationale of Bush v Gore). The two voter-plaintiffs not only lacked standing, the complaint failed to allege any improper action on the part of the counties it actually sued.
The PA case also argued there was a violation of both substantive due process and equal protection when observers were prevented from entering the ballot-counting area until their clearance had been verified. Yet, there was no evidence that Republican observers were treated any differently than Democratic observers, except for Giuliani’s hearsay that exceptions were made for Democrats. Moreover, violations of substantive due process generally require evidence of “massive fraud,” which “was not pled.”
During his argument before the Middle District of PA (Judge Brann), Giuliani argued that there was “widespread, nationwide voter fraud,” in “at least ten other jurisdictions.” Claiming that the “Democratic machine” in certain counties “stole the election,” Giuliani asked Judge Brann to invalidate (the numbers kept changing depending on the argument) between 680,000 and 1.5 million votes. When Judge Brann asked Giuliani if he was alleging fraud, Giuliani replied “Yes, Your Honor.” During testimony in his own defense, Giuliani alluded to a larger strategy (i.e., coup plot) to consolidate similar cases in other jurisdictions to bring to the Supreme Court.
The essence of the complaint before the DC Bar is that Giuliani participated in a case that was filed in Federal court which (at best) only pled potential state law claims, that they did not even sue the proper party, and that there was no basis in fact to allege the actions were part of a larger fraud. Giuliani did not sign either the original or first amended complaints (the original attorneys had withdrawn). Rather, Giuliani was admitted pro hac vice to the Middle District of Pennsylvania to argue in opposition to a Motion to Dismiss.
However, it was not just the lack of legal and factual support alone, but the fact that the Trump Plaintiffs were demanding an extraordinary remedy: (1) An order prohibiting the Defendants (which included the Secretary of State) from certifying the presidential election results; (2) a permanent injunction requiring the defendant counties to throw out all ballots where voters had been given an opportunity to cure; (3) an order declaring that the election was defective and allowing the PA General Assembly to choose the state’s electors; and (4) a declaration that Donald Trump won the election in PA and should receive the PA electors.
Based on the foregoing, the disciplinary charges against Giuliani are violation of Rule 3.1, bringing a proceeding without a non-frivolous basis in law or fact; and Rule 8.4(d), engaging in conduct prejudicial to the administration of justice.
Questioning of Mr. Fox at first revolved around the extent of Giuliani’s culpability, given that multiple attorneys had worked on the case. Mr. Fox emphasized how much of the purported “evidence” involved irregularities in other elections and/or in other jurisdictions, including irregularities in PA counties that were not sued.
Other questions to Mr. Fox revolved around practical logistics of distinguishing disciplinary violations from more typical cases that routinely get dismissed. Mr. Fox was also questioned about how to distinguish a disciplinary violation from an attorney’s duty of zealous representation. As a bar disciplinary attorney, it is very likely that Mr. Fox has confronted these issues multiple times. His response included a good discussion about how various legal principles are “at war with each other:” e.g., the Constitutional Free Exercise and Establishment clauses as well as candor toward the tribunal versus zealous representation. Attorneys are always free to say “no” to a case.
There was some questioning about competency and the fact that Giuliani is not an election law “expert.” Is the standard what a “reasonable lawyer” would do or what a “reasonable election lawyer” would do? Mr. Fox suggested that there were enough lawyers on this case that competency could be presumed.
Does disciplinary counsel need to prove 3.1 in order to prove 8.4? Probably yes.
Another question asked whether the discipline (suspension) in New York created a presumption of discipline here? Mr. Fox stated that the specification of charges process is different in New York, and that New York was looking at “broader” behavior that happened outside of court (i.e., on talk shows), which Mr. Fox believes “implicates the First Amendment.” The panel seemed to think that the NY case would be resolved first due to the lengthy process in DC.
Mr. Fox then came right out and suggested that evidence of “having the lawyers lined up” after the election results before having evidence was part of a more nefarious plot to overturn the election. Mr. Bernius argued that he didn’t see having “lawyers lined up” (e.g., as in Bush v Gore) as anything necessarily “sinister.” Especially since Mr. Fox did not present evidence of a larger conspiracy. Mr. Fox argued that “You can infer what is obvious” and “courts aren’t in the business of taking away the right to vote.”
Questioning of Giuliani’s lawyers was equally challenging yet polite, although about halfway through you could sense a very slight ratcheting up of aggressiveness. The panel focused again on why they sued the counties that allowed notice and opportunity to cure and not the counties that didn’t. One question from Mr. Brozost asked Giuliani’s lawyers to “name one case anywhere which disenfranchised voters.” Did he expect the Supreme Court to reverse itself? Mr. Bernius asked whether there was collateral estoppel, in that Giuliani had participated in prior proceedings that had ruled against him.
The panel at various points suggested it was sensitive to situations where an attorney is under a deadline and may not have time to investigate facts pled. Giuliani’s argument in his own defense was that he was not required to “prove” facts at the pleading stage, but expected to collect evidence after discovery. More questions about whether or not an attorney had an enhanced duty to investigate when asking for such an “extraordinary” and “unprecedented” remedy. Giuliani’s answer was NO to any enhanced duty, then argued that there were “a lot of investigators out there.” This was followed up by a question whether he can just rely on “whatever is handed to him.”
At this point, Giuliani appeared visibly shaken and ashen-faced. He has been in enough hearings to be able to read the room.
While following the hearing, I kept track of how many people were observing on the livestream. The number of observers ranged from 240 (toward the beginning) to 410 (toward the end).
The hearing concluded without a decision. Mr. Fox has until December 14th to respond to Giuliani’s last-minute memo. December 15th has been tentatively set for a possible hearing on sanctions, at which time the parties will be able to present arguments and evidence (including witnesses).
What happens next? The hearing committee will send a report of its findings to the full Board of Professional Responsibility. Either party can file exceptions within 120 days, and will have another opportunity to present briefs and argument. The Board can either accept, dismiss, or remand the hearing committee’s findings for further proceedings.
Once Board proceedings have concluded, its findings and recommendations are sent to the D.C. Court of Appeals. Here, the Court will give “great deference” to the Board’s findings, although it is yet another opportunity to contest. The Court may suspend an attorney while a decision is pending in order to “discourage lawyers from extending their careers by taking exceptions to the Board’s recommendations.”
So…although this looks like a good start, like everything else involved in the attempts to overthrow democracy, we won’t have a final answer anytime soon.
Giuliani could potentially redeem himself and serve his country once more by making a deal with the US Department of Justice to testify about what transpired at the Willard Hotel war room on January 6th.
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