We previously discussed the abusive move by Rep. Bill Prascell (D., NY) to request the banning of about a dozen Trump and Republican attorneys for contesting election results. Such calls are the order of the day. During the impeachment trial of President Trump, North Carolina law professor Michael Gerhardt predicted that Trump’s entire legal team would be expelled after serving the president. Now Democratic Reps Kathleen Rice (DN.Y.) and Ted Lieu (D-Calif.) Have filed a complaint in which they have direct breaches of professional code against Trump attorney Joe diGenova for his recent controversial statements on dismissed cybersecurity and Chris Krebs, head of the Infrastructure Security Agency. In an interview, diGenova called for Cancer to be “pulled and quartered” for not protecting that choice. While I found that I didn’t believe diGenova was actually calling for violence, I immediately criticized these comments. However, despite the contrary view of Ethics Professor Stephen Gillers, I do not believe that this is anywhere near an ethical violation. However, it is a clear use of legal rules for a political purpose. In particular, Rice and Lieu, both lawyers, have remained silent about the campaign of harassment and abuse by groups like the Lincoln Project. There were no calls to ban these attorneys or to investigate threats of violence against Republican attorneys. In fact, I haven’t read a single lawyer or law firm sponsoring the Lincoln Project, which denounced its campaign to harass other lawyers – a campaign that began shortly after Joe Biden was declared the alleged election winner.
I have not hesitated to call an attorney for election-related violations that could result in a lockdown, like the latest Republican attorney allegedly seeking out of state registration to vote fraudulently in Georgia. DiGenova’s comments, while condemnable, were clearly intended as a joke. It just wasn’t fun, especially in these increasingly violent times.
Joe diGenova interviewed Newsmax ‘The Howie Carr Show and said cancer should be “drawn and quartered” and then “taken out and shot at dawn.” It was a typical overheated statement of the “This guy should be shot” sort. diGenova made it even more absurd by combining it with a medieval execution method. It was an example of overkill both literally and figuratively.
In an interview with the Washington Examiner, diGenova quickly stated that his comment was a joke and not intended as a threat. He explained, “It was obvious to anyone who listened to the Howie Carr Show that my comments were sarcastic and joking. Of course, I do not wish Mr Krebs any harm. That was an exaggeration in the political discourse. “
Even so, these members filed a legal complaint. Imagine the impact on freedom of expression if lawyers could be brought before prosecutors for such political statements. This was not in a filing in court. It was a comment on diGenova’s view that the elections could not be protected. This has nothing to do with the accuracy of the underlying comments. I obviously don’t agree with that. I immediately condemned it. However, it is like the attorney’s complaint filed against Rep. Matt Gaetz (R., Fl.) For his actions in Congress. It is the weapon of the lawyer appeals process for political purposes.
The basis for the complaint are different rules: Rule 8.4 (maintaining the integrity of the profession); Rule 3.6 (Litigation Advertising); and rule 4.4 (respect for the rights of third parties). As is so often the case, various legal experts quickly declared the charges to be well-founded and compelling. It seems that when the target is Trump or his employees, any ethical and criminal charge, under unlimited interpretations of the underlying provisions, will stand in the face. No concerns are raised about the impact of such charges on freedom of expression or possible political abuse.
Mark Zaid stated that “no sane person” who heard diGenova demand that a person be drawn and quartered and then shot would “have considered it a” joke “.” No sane person. Randall Eliason of the Washington Post seemed to disagree that this was “just a colorful metaphor”. Professor Steve Vladeck stated, “Lawyers making such threats should be expelled. Period. “These are both individuals who have made extensive criminal and ethical claims against Trump and others over the past four years, including (in Eliason’s case) interpretations that have long been rejected by the Supreme Court.
Gillers emphasized that Rule 8.4 (b) and Rule 8.4 (d) apply to attorneys who “(b) commit an offense that adversely affects the solicitor’s honesty, trustworthiness or suitability as an attorney in any other way” or “(d) Conduct that seriously interferes with the administration of justice. “
Gillers correctly notes this
We have seen some extensions to the code of ethics to include criticism of judges (Here and Here), a move I also rejected as a threat to freedom of expression. However, these cases included criticism of judges in actual cases in which the lawyers appeared.
The controversy surrounding diGenova’s comment does not come close to any theory of justification for a crime.
Gillers also alleges that diGenova’s comment “has disrupted the administration of justice,” as stated in rule 8.4 (d). The basis of this claim is that “the work of the courts will be seriously affected when it comes to addressing the campaign claim that the election was unfair”. This statement is both legally and factually unfounded. Cancer is actually not a party and is not expected to witness these electoral challenges, which are currently largely being negotiated at the vocational level. Gillers insists, however, that “a disciplinary body could determine that diGenova’s threats to cancer calling the election fair are seriously interfering with the work of the courts in addressing campaign claims that the election was unfair . ” In this case, I believe that it would be an improper use of legal proceedings to target a lawyer for political reasons.
This type of controversy obviously involves a mix of concerns about legal ethics, criminal law, and freedom of speech. In my view, these allegations constitute an abuse of the legal process and should be condemned by all lawyers, even if we condemn diGenova’s comments.