The current Year of the Ox hasn’t been especially kind to Rudy Giuliani, whose ox has been gored repeatedly. Satisfying as these rebuffs have been, should we temper our enthusiasm?
The former mayor of New York — dubbed “America’s Mayor” after the attacks of 9/11 — has reportedly tried in vain to get President Donald Trump to pay his legal bills. His reputation is in tatters. Trump’s family has reportedly cut him off. As has the Appellate Division of the First Judicial Department of the New York Supreme Court, which last month suspended his license to practice law in the state — and may be on the way to disbarring him.
Further, the federal D.C. Circuit Court of Appeals, which on July 8 suspended his license to practice in the District of Columbia. Presumably, these suspensions are long steps toward disbarring him permanently.
These punishments may turn out to be the least of his worries. In April, the Justice Department raided his home and office seeking evidence for its criminal investigation of his activies in and for Ukraine. It is also reportedly looking into his possibly acting as an unregistered foreign lobbyist for Turkey.
Well, you may say, if you’re no fan of Donald Trump or his toadies and enablers, it couldn’t happen to a nicer guy. The annoying kid in your class finally gets in trouble with the teacher. The driver who cuts you off gets pulled over by a cop. It’s natural to gloat — but is it a bit too easy? After the New York court suspended Giuliani’s license, Jonathan Turley argued in The Hill for a pause in this rush-to-disbar.
“As a long-standing critic of Giuliani for his baffling, self-defeating, and at times bizarre statements,” Turley wrote, “I found the [court’s] action was, on some level, reaffirming.” Turley continued, “The 33-page opinion is damning and embarrassing. . . . It also is deeply concerning in its heavy reliance on Giuliani’s statements out of court. . . . This suspension seems primarily a judgment on Giuliani’s public advocacy. The court states that when he uses ‘his large megaphone, the harm is magnified. … One only has to look at the ongoing present public discord over the 2020 election, which erupted into violence, insurrection and death on January 6, 2021, at the U.S. Capitol, to understand the extent of the damage that can be done when the public is misled by false information about the elections.
“The AGC [Attorney Grievance Committee, which brought Giuliani’s case to the court] contends that respondent’s misconduct directly inflamed tensions that bubbled over into the events of January 6, 2021 in this nation’s Capitol.” Turley argues that “such rhetoric leaves the impression that the investigators and the court itself were eager to impose judgment on Giuliani for the Capitol riot and other unrest through a bar action.'”
And why should we care? “The concern in this case,” Turley continues, “is that we are seeing a weaponization of bar investigations. . . . . Despite a damning account of exaggerations and falsehoods, [the Giuliani decision] often reads more like a venting — rather than a vetting — of grievances against Giuliani. Instead of issuing a well-deserved reprimand, the court declared Giuliani to be a public menace if allowed to continue practicing law, even for the period of his own adjudication. That thrilled many in today’s bloodsport politics. Yet while the court seemed to apply a special ‘Giuliani rule,’ it is unlikely to stay that way if — to paraphrase Carl von Clausewitz — the bar becomes ‘nothing but a continuation of politics by other means.'”
There wasn’t much doubt that the former mayor had broken the rules. The New York court made it very clear that by lying both in court and out, to judges and third parties, Giuliani had violated the Rules of Professional Conduct (RPC) that are supposed to govern the practice of law. The court found “uncontroverted evidence that [Giuliani had] communicated demonstrably false and misleading statements to courts, lawmakers and the public at large in his capacity as lawyer for former President Donald J. Trump and the Trump campaign in connection with Trump’s failed effort at reelection in 2020. These false statements were made to improperly bolster respondent’s narrative that due to widespread voter fraud, victory in the 2020 United States presidential election was stolen from his client. We conclude that respondent’s conduct immediately threatens the public interest and warrants interim suspension.”
The RPC violations seem pretty clear, although in some cases they come across as less sinister than farcical. There is a Three -Stooges back-and-forth with a court about whether or not he is pleading fraud. And there is the Joe Frazier gambit: The New York court noted that Giuliani had “repeatedly stated that dead people ‘voted’ in Philadelphia in order to discredit the results of the vote in that city. He quantified the amount of dead people who voted at various times as 8,021; while also reporting the number as 30,000. As the anecdotal poster child to prove this point, he repeatedly stated that famous heavyweight boxer Joe Frazier continued to vote years after he was dead and stated on November 7, 2020 ‘he is still voting here.'” Except he wasn’t. “Pennsylvania formally cancelled Mr. Frazier’s eligibility to vote on February 8, 2012, three months after he died.”
As for his sources, Giuliani “fails to provide a scintilla of evidence for any of the varying and wildly inconsistent numbers of dead people he factually represented voted in Philadelphia. . . . Regarding Mr. Frazier, respondent claims he reasonably relied on the reporting of a ‘blogger.”
The statement about Frazier was made first at, er, Four Seasons Total Landscaping. Right after Biden was declared the winner, Giuliani held a Philadelphia press conference at “the Four Seasons” — which turned out — oops! — to be the parking lot of Four Seasons Total Landscaping. (Hey, everyone makes mistakes.). From the parking lot, the former mayor announced that Trump would not concede, and that he was about to launch a barrage of lawsuits.
So yes, Giuliani broke the rules. But those rules certainly don’t require that a violator have his license suspended, much less that he be disbarred. Of course, Giuliani has not — yet — been disbarred. If he is, he will be in well-known company: Forty-five years ago, the very same court that suspended Giuliani’s license disbarred by-then-former President Richard M. Nixon. Nixon hadn’t been convicted by any court and had indeed been pardoned by his successor, President Gerald Ford for any crimes he might have committed in office. But the New York court took a look at what he had done and concluded that he had obstructed justice in the Watergate investigation and concealed evidence in litigation over the office break-in of the psychiatrist treating Pentagon Papers leaker Daniel Ellsberg.
Nixon was, of course, nuts, and clearly criminal. Giuliani is . . . what? It’s hard not to suspect a craving for attention lies behind some of his more erratic behavior. Was he just emulating his boss’s rhetorical style? Was he willing to do anything, anything at all, that would keep him in the spotlight? After all, no one had paid much attention to Giuliani for quite a while before he attached himself to Trump. “The most dangerous place in New York is between Rudy and a microphone,” former FBI director James Comey was warned by a supervisor in Giuliani’s Manhattan U.S. Attorney’s Office when Comey worked there as a young lawyer, the ex-G-man wrote three years ago. Why not keep the good times rolling?
This is not to say that Giuliani’s lies were, in context, harmless. It’s hard to quarrel with the idea that the kinds of lies he told did lead to the Capitol riots. People thought the election had been stolen only because Trump and his toadies and enablers told them so. Allegedly, an inebriated Giuliani told Trump to “just say we won” — which, of course, Trump has been doing ever since. And might have done anyway.
But would Giiuliani’s continued ability to practice law in New York for even a short time have “immediately threaten[ed] the public interest?” That’s a satisfying conclusion for some of us to see drawn. But really? After all, he can keep lying in public all he wants. He just can’t do it as a lawyer representing a client. And even if he were silenced, hasn’t the damage largely been done?
It’s hard not to catch a strong whiff of political judgment in the court’s decision. But hey, welcome to 2021!
Dan – Your (and Turley’s) cautions against using our institutions to punish political speech are important. It’s at times like these after egregious busting of norms and blatant abuse of the system that it’s tempting to over-compensate and come down on the perps by overreaching with the full weight of the law. What can be used against these clowns can also be used against legitimate protest in the future.
That said — one of the reasons it was so easy for Trump et al to flout laws was the almost near-absence of consequence. (Ignore those subpoenas, we’ll run out the clock.) Likewise the neo-cons who lied to get us into the Iraq War and reaped enormous profits were allowed to reinvent themselves and continue on as if they had merely miscalculated. The bankers who swindled mortgage-holders even as they knew they were undermining the financial system for the most part walked away without a scratch. Where were the consequences for them? And I’d argue that the lack of being held to account laid the ground for worse abuse by Trump.
Until we start holding people accountable when they intentionally set out to abuse our institutions – which clearly Rudy did (as you detail) — we’re only seeding the ground for the next generation of grifters, who pop up smarter and more insidious than their forbearers. If it’s not the institution that governs our legal system, then who?
AGREE