However, his attorneys have, by and large, turned around to slide down the slope by pulling out of his election battle. How did that happen you ask? It’s a story in three acts and offers lessons for attorneys looking to maintain their professional credibility, not to mention their legal licenses. Act One begins with the inevitable Twitter abuse of the president, echoed by Trump’s mouthpiece – including some of his legal advisors – in right-wing news outlets, claiming without evidence that fraud in the 2020 election was rampant and that Democrats are trying to steal the White House and that if only “legal” votes are counted, Trump will be declared the winner. The lawyers representing the Trump campaign really worked on Act II, dutifully filing lawsuits in the selected battlefield states in complaints that set out various legal claims over this supposedly widespread fraud. These filings have been identified by legal experts as being full of general and false fraud claims that are not legally bound and internally inconsistent.
Appeals to the complaints were filed almost immediately, which brings us to the third act, where things get really interesting. Once a motion to dismiss a complaint has been filed, attorneys must appear in court to discuss the matter. And by court I mean a real court in real life, not a “reality” television show or what is called the court of public opinion.
Lawyers who argue in court must be truthful in their representations in court. As stated by the American Bar Association, attorneys as court officials have a “special duty” to be honest and “avoid conduct that undermines the integrity of the judicial process.” The professional accountability rules in all 50 states that license attorneys and handle disciplinary proceedings reflect these requirements. And when it comes to the kind of cases filed here by the Trump campaign, general charges of “fraud” or “irregularities” or “lack of access” are not enough to survive the pleadings. The law requires specificity and plausibility in the allegations. When Team Trump attorneys actually stood before the judges who began to ask specific questions about the allegations and evidence, the case-by-case fraud allegations became very different and cautious attorneys angrily pulled back. And the proceedings ended on a case-by-case basis with the allegations being dismissed. As losses began to mount, Trump’s attorneys not only withdrew from the unsupported and highly questionable positions in their legal papers, many of them fled the cases themselves. Regardless of Trump legal advisor Jenna Ellis’ attempt to save the face, this is not at all the routine for lawyers to seek permission to resign just days after filing papers. Also, changing your complaint to remove claims based on lack of evidence or drop cases entirely isn’t a good sign, but that’s exactly what happened when Trump’s lawyers had to face the music to see if they were behind the false allegations. Regardless of the self-preservation most Trump attorneys demonstrated, a different path emerged for Rudy Giuliani in Tuesday’s hearing in Donald J. Trump for President, Inc. Pennsylvania Secretary of State Kathy Boockvar, the case that looks like Team Trump’s last stand. In its short lifespan of less than 10 days, this case involved two versions of the relevant legal claims and several groups of lawyers. In quick succession, the law firm Porter Wright Morris & Arthur and two other lawyers withdrew. A third tried to withdraw but was turned away. The team then announced that they would add Marc Scaringi to lead the effort, though shortly after the election he admitted that lawsuits against Biden’s win were unlikely to be successful. But in the end, Giuliani was the lawyer who went to court on Tuesday to argue the case. The question everyone was asking, when Giuliani was actually on trial, was he going to stick to his worn-out script in which he spat merciless accusations, as he has so often done on television and at press conferences? Or would he answer truthfully when confronted by the presiding judge for lack of evidence and legal support for his claims? The answer is that he did a little of both. As it shouldn’t come as a surprise to absolutely anyone, at the beginning of the hearing, when he was allowed to speak non-stop, Rudy did Rudy, generally ranting about stolen elections, fraud, the “dishonesty” of Philadelphia, and ballots illegally cast in a free-running presentation having no factual and practically nothing to do with the amended complaint filed by his colleagues. However, when questioned about certain allegations, legal standards, and individual pieces of evidence, Giuliani was forced to step down in decisive ways, partly because he had no relevant evidence to support his allegations and partly because he seemed unprepared and lacked mastery of the law and the Compliance with standards.
As we’ve seen, most of Trump’s attorneys did not want their professional reputations to be tainted by allegations that were considered false. Most of these attorneys had no interest in being referred to their bar association’s appeals committee for possible discipline or even banning. Of course, Giuliani isn’t the most lawyer, and he’s gotten a lot closer to the ethics line than the rest of Team Trump was willing to leave, in large part due to a very patient judge willing to speak to him freely to let before he went further the relevant and deadly flaws in his reasoning.
It looks like this case, like the others, could be a loss to Trump. But I hope Tuesday’s hearing serves at least as an educational moment for Giuliani – who reportedly hasn’t appeared in court in decades – and reminds him that fiery rhetoric alone doesn’t win cases and could actually violate a lawyer’s oath and that this can mitigate his actions in the future. I won’t hold my breath