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Preliminary Decision in Giuliani Bar Discipline Case: Bar Counsel Urges Disbarment [1]
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Date: 2022-12-15
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
Giuliani submitted more statements about what he purportedly relied on before filing Donald J. Trump for President, Inc. v Kathy Boockvar et al. Which is not in the rules, but he was allowed to submit anyway. Bar disciplinary counsel was given an opportunity to respond, so this hearing began with arguments on these additional submissions.
There were more questions about who gave statements, and panel members asked Giuliani who was most knowledgeable of the facts in the litigation? Again, we receive no straight answer, but hear the name of an attorney named Hicks, who appeared (and then withdrew) early in the case, while later the main attorneys were Giuliani and Jenna Ellis.
Discussion then turned to why certain people were not on Giuliani’s witness list, and questions about efforts made to have some of these fact witnesses testify here. Giuliani’s attorneys said they attempted to contact Mr. Hicks and others but either received no response or were told that these attorneys were advised by their own attorneys not to testify due to ongoing investigations. Apparently, all of Giuliani’s witnesses are facing disciplinary charges themselves, which—according to Giuliani—is being spearheaded by the “Committee of 65.” Giuliani is likely referring to The 65 Project, which has also filed a DC Bar complaint against Cleta Mitchell. Indeed, MAGA now appears to stand for “Making Attorneys Get Attorneys.”
Mr. Fox said he had also attempted to contact Hicks, and was told that Hicks was asserting privilege (both attorney-client and executive) and client confidentiality. One of the panel members remarked that the privilege is the client’s to assert and not the law firm.
Mr. Brozost asked Giuliani where did he focus his own investigation? Giuliani rehashed his previous defenses and said everything was in the record. It seemed like the panel was bending over backward to give Giuliani every opportunity to present additional (non-BS) evidence.
At the end of this part, the panel went into executive session, promising to return in 15 minutes. There were 150 watching the livestream.
The panel returned closer to 20 minutes or more later. Now there were 563 observers on the livestream.
The panel announced that this was a “preliminary, non-binding” decision. Disciplinary counsel has “proved the violation of at least one charge by clear and convincing evidence,” so now they would move into the sanctions phase. Giuliani’s lawyers asked which of the charges applied, to which Mr. Bernius stated they were not required to divulge this at this point in the proceedings.
Mr. Fox offered no aggravating evidence or prior infractions.
Mr. Giuliani testified in support of his own mitigation while they called his one other witness. Giuliani talked about founding the Twin Towers Fund and other community service projects he was involved with following 9-11.
Giuliani’s witness was Robert Costello, another white-haired white man who works in a NY law firm that does civil and criminal (mainly white-collar defense) litigation. Mr. Costello has known Giuliani since they were both Assistant US Attorneys for the Southern District of NY early in their careers. There was reference to a federal grand jury investigation against Giuliani as to whether he was required to register as a foreign agent for his activities in Ukraine. This case was dismissed without an indictment, although Giuliani is still subject to the investigation in Georgia.
Mr. Costello represented Giuliani in the foregoing criminal investigation. A Special Master was appointed to go through some 2,200 of Giuliani’s electronic communications that were seized by the FBI. Mr. Costello testified that he personally “reviewed every email over the last 20 years” and had “seen [Giuliani’s] electronic soul.” According to Mr. Costello, Giuliani “believes in winning…he doesn’t like to lose,” and for these reasons “would never knowingly file a frivolous case that was sure to lose.” Mr. Costello suggested that Giuliani was “relying on other people” for his fact claims.
Mr. Fox began by referring to “substantial case law” which sets forth factors used to determine the level of sanctions. However, he suggested that, although it is not expressly inconsistent, the case law factors are “largely irrelevant” due to the egregiousness of the 3.1 violation. A principle that has endured since John Adams left Washington to allow Jefferson to assume the presidency has been the peaceful transfer of power as determined by elections. Even in 1861, the southern states chose to secede rather than challenge the election. In essence, Giuliani used his law license as part of a “civil conspiracy” to undermine the legitimacy of the election and our democratic system. This “shoot first and ask questions later” conduct of litigation warrants the highest (and only) sanction of disbarment.
Mr. Bernius asked what the law (standard for sanctions) was in Pennsylvania. Mr. Fox did not know, but the rules in DC are that the substantive law of the other state governs legal questions, but the rules in DC govern how sanctions are applied.
Mr. Fox went on to argue that the misconduct in this case was “so overwhelming” that the “other factors” of the test are irrelevant. Giuliani has “violated his basic oath” in attempts to undermine a valid election.
Someone on the panel asked whether Mr. Fox’s argument was “going beyond the record.”
“We can’t be oblivious to what has gone on this country,” nor fail to “recognize what we all see and know.” Giuliani’s acts have done a “fundamental harm to the fabric of this country that could be irreparable.” We have a duty to “send a message to other attorneys” and the only appropriate sanction is disbarment.
Mr. Bernius asked about the mitigating evidence, while acknowledging that it was “some time ago.” Mr. Fox said it was almost like Giuliani was “two different people…”
Here, Giuliani’s attorneys objected, which was overruled.
Mr. Brozost said he was struggling with how to distinguish this case from other election challenges that were not successful. To which Mr. Fox referred to Bush v Gore as an example of the proper way to challenge elections, which involved starting in state court. But even here, you have to abide by the court’s ruling and concede.
“This was a coordinated effort, and these weren’t legitimate challenges to state elections operations. If we don’t believe in elections, we won’t have a democracy.”
Giuliani’s attorneys countered by reiterating the “truncated time frame” he had to prepare and his reliance on other attorneys. Giuliani “stepped into the breach” during the attrition of other attorneys. They asked for the “least serious discipline (e.g., a letter of reprimand) because otherwise it could “chill effective advocacy in the future.”
Giuliani’s attorneys then shifted the argument from mitigation of culpability to the unfairness of accusations of conspiracy. “Nowhere is Giuliani charged with undermining democracy and it is unfair to include this in the calculus for sanctions.” There was reference to a prior disciplinary case where an attorney sued a dry cleaner for a ruined pair of pants (for which we presume there was sufficient evidence) and requested tens of millions of dollars in damages. The attorney was given a 90-day suspension not because the litigation itself was frivolous, but because the remedy was so outrageous.
Mr. Fox responded by arguing that the panel should not accept “the notion that this is just politics and we should ignore what is going on in this country. Asking the courts to deprive the right to vote is not politics. Somebody has to draw a line. We cannot adopt a blinder view of what is going on. The purpose of sanctions is deterrence—and we have a duty as lawyers to ensure that this not be allowed to happen again. A law license should not be used to undermine the Constitution.”
Giuliani could be seen wildly gesticulating while speaking (on mute) with his attorneys. At the very end he gave a long and angry speech about how he objects to Mr. Fox’s characterizations and his “cheap, unethical, and unsupported arguments.” He ranted about the FBI taking his iPhone and being under investigation for “3 ½ years” when there was “no probable cause to indict.” He raged about the “stolen election” and that he had “two rooms of documents” (which apparently no one but him and his co-conspirators have seen) and movies like 2000 Mules. Which actually raises a valid argument about how to factor in the massive and well-funded RWNJ disinformation machine and what is an attorney’s duty to avoid “willful blindness.”
The panel will issue a final decision after the parties have had an opportunity to submit findings of fact and conclusions of law, which will take at least another 75 days. Mr. Bernius told the parties that “less is more,” and that he wanted to see “tight writing” and citations to the record. Mr. Fox alluded to the trial of Jeffrey Clarke, which was initially scheduled for January 9th, but Clarke is attempting to have the case removed to federal court.
God bless Mr. Fox and the DC Bar Office of Disciplinary Counsel. Their plate is mighty full.
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