Rudy Giuliani, former mob-busting US Attorney, ex-mayor of New York, and one-time presidential aspirant, was suspended from the practice of law for “lying” to a Pennsylvania court.
A tenet of Western Civilization, expressed in the Magna Carta, affirmed at this nation’s founding, and embodied in the Sixth and Seventh Amendments to the U.S. Constitution, is that litigants are entitled to zealous advocacy before legal tribunals.
John Adams represented British soldiers in their trial for gunning down patriots during the Boston Massacre. His courageous act enhanced his standing among patriots.
Giuliani has been suspended from the practice of law for his representation of Donald Trump. His suspension did not arise from a process in which he had a right to present evidence and mount a defense. It was an interim suspension, done without a hearing.
As the New York court ruling on the matter noted: “Interim suspension is a serious remedy, available only in situations where it is immediately necessary to protect the public from the respondent’s violation of the Rules.”
In layman’s terms, that means interim suspension is a remedy reserved for the lawyer who misses trial, drunk at a bar, while hiding exonerating evidence in his briefcase. That person, and not America’s Mayor, presents a danger to his clients.
The court described Giuliani’s offenses as, “statements [he] made following the 2020 election at press conferences, state legislative hearings, radio broadcasts (as both a guest and host), podcasts, television appearances and one court appearance.”
Here, context is important. Pennsylvania lawyers Trump had hired before the election withdrew on the eve of the hearing, the court denied a continuance, and Giuliani was inserted into the fray at the last minute.
Even if he made slight errors while getting up to speed in the very complex case, can statements made by a lawyer challenging an election really grounds for disbarment?
In Conley v. Gibson, 355 US 41 (1957), the Supreme Court “reject[ed] the approach that pleading is a game of skill in which one misstep by counsel may be decisive….”
Conley is not exactly on point but is certainly analogous. It recognizes that initial pleadings in a civil case are meant to be refined in discovery and pretrial procedure, and lawyers should not be held to early allegations.
By way of comparison, in 2000 prominent New York attorney David Boies represented the Democratic Party’s presidential candidate, Al Gore, in his election challenge to George Bush’s victory.
The premise of the challenge was that votes had been improperly counted in certain Florida precincts and that Gore actually won the election.
The arguments were made in the media and in legal tribunals, including the United States Supreme Court in the landmark case, Bush v. Gore.
Boies mounted a spirited challenge to the election but lost. His failed allegations were not cast as lies. Nor was he suspended from the practice of law to protect the citizens of New York.
Instead, he gained in prominence and is now Chairman of the law firm Boies, Schiller & Flexner, leading a team of 176 lawyers in 15 offices around the world.
The reality is very few cases involve facts upon which both sides agree. Most lawsuits are waged over competing facts.
The purpose of the Magna Carta was to assure that the king never be given the role of fact finder. That authority was taken from the Sovereign and handed over to a jury – which would act in the place of the king in legal proceedings.
This assured, fundamentally, that politics would not control outcomes in the courtroom.
If political power is removed from legal proceedings, it was thought, and facts are presented to an unbiased tribunal, the truth is more likely to emerge.
That is a cornerstone of Western Civilization. David Boies could be a zealous advocate in the collision of facts that resolved the 2000 election, even though he lost, because civilization requires it.
Large percentages of Americans look at the statistical anomalies of the 2020 election, the prevalence of mail-in ballots hastily retrofitted into the system because of a pandemic, and have questioned what happened.
The state of Arizona is conducting a forensic audit and others may follow. There is nothing inherently wrong with probing for facts about election tampering.
In 2016, prominent members of the Democratic Party rejected Trump’s victory on the premise that Vladimir Putin handed it to him.
House Speaker Nancy Pelosi called for an investigation on May 16, 2017, with an incendiary Tweet: “Our election was hijacked. There is no question. Congress has a duty to #ProtectOurDemocracy & #FollowTheFacts.”
— Nancy Pelosi (@SpeakerPelosi) May 16, 2017
The ridiculous Russia lie (which I have written about here) was investigated and found to be baseless.
This is bigger than the professional licensing bureaucracy of New York suspending one of its members. In a reversal of the Magna Carta, it smacks of a political decision under the guise of fact finding.
The silent majority, as Trump called his supporters in campaign rallies, had the temerity to choose a leader against the preferences of the governing class. The persecution of Trump supporters that has ensued, including now the suspension of his lawyer, looks like payback for this act of lèse-majesté.
Obviously, the powers that be do not want an honest assessment of disputed facts about the election. People are being harshly punished for raising questions. Why?
Suspending Rudy Giuliani’s law license is not going to make questions go away. It just makes people more curious.