By Ian Bassin and Deana El-Mallawany | Protect Democracy
In his bestselling book On Tyranny, the Yale historian Timothy Snyder warns that our democratic heritage does not protect itself from threats of authoritarianism, but rather relies on us to defend and maintain our institutions. One of the key lessons he draws from history is to “remember professional ethics.” Observing that it is “hard to subvert a rule-of-law state without lawyers,” Snyder urges lawyers to ward against authoritarianism by adhering to “the norms and rules that oblige them at all times,” and “precisely when we are told that the situation is exceptional.”
This week provided a number of examples of where his warning is apt. The first may be the Washington Post’s reporting that White House staff are drafting documents for the President to revoke additional security clearances of officials whose public statements the President objects to. White House lawyers engaged in that effort must know they are violating their oath to uphold the Constitution as such actions are clear violations of the First Amendment.
But perhaps a more egregious example of a lawyer failing to uphold professional ethics, and the one most damaging to our democracy, is Rudy Giuliani, whose statement this week that “truth isn’t truth” echoed more in 1984 than the disturbing-enough 2018. It capped a string of statements from Giuliani (and no doubt there will be more) that the New York State attorney disciplinary committee should examine, as they appear to run afoul of numerous New York Rules of Professional Conduct.
First, there’s Rule 4.1 on Truthfulness In Statements To Others, which states that “In the course of representing a client, a lawyer shall not knowingly make a false statement of fact or law to a third person.” Giuliani has repeatedly made false or baseless statements to the press.
In July, Giuliani told ABC News during an interview that when President Trump spoke to James Comey about Michael Flynn, Trump asked, “Can you give him a break?” Yet this month, Giuliani denied that Trump ever even spoke to Comey about Flynn at all, claiming “there was no conversation about Michael Flynn.” When Jake Tapper pointed out that Giuliani had previously acknowledged that such a conversation took place, Giuliani denied contradicting himself, stating, “That’s crazy. I never said that.”
A similar episode happened when Giuliani told CNN that numerous top Trump officials had met in Trump Tower, several days before the infamous June 9, 2016 meeting with Russians offering dirt on Trump’s opponents, to plan for that meeting. Giuliani then recanted this assertion, stating that the planning meeting “never happened” and that he was only repeating rumors he’d heard, even though his original statement was clearly framed as an assertion of fact.
Giuliani’s clearly false statements about the Trump Tower episode continued in August, when he claimed that when Donald Trump Jr. and other Trump campaign officials agreed to meet Natalia Veselnitskaya, “they didn’t know she was a representative of the Russian government.” That was obviously untrue as the now-public emails Trump Jr. received setting up the meeting said explicitly it was with a “Russian government attorney who is flying over from Moscow.”
The list of instances like this goes on, but they are perhaps not even as troubling as Giuliani’s statements questioning the concept of truth and facts altogether. In addition to his comment this week that “truth isn’t truth,” he has stated that “facts” are “in the eye of the beholder,” and that he doesn’t know “how you separate fact and opinion.” This abandonment of the concept of truth is more than just out of compliance with Rule 4.1, it reflects a rejection of the rule’s importance altogether.
Second, Giuliani has exhibited blatant disregard for Rule 8.4, which states that registered New York attorneys shall not engage in conduct that is prejudicial to the administration of justice. He has done this repeatedly as well, engaging in a knowing and intentional campaign to smear and delegitimize the law enforcement apparatus of the United States. He admitted as much in May when he acknowledged that his repeated claims that Robert Mueller’s investigation was scandalous were a calculated PR strategy. And while it is a common tactic of defense attorneys to attempt to delegitimize an investigation or prosecution of their client, when it’s done on behalf of the President of the United States in order to pave the way for the President to fire that investigator, it’s a fundamentally different animal. If that isn’t an assault on the administration of justice, it’s hard to know what would be.
Equally offensive to our justice system is Giuliani’s apparent approval of witness tampering. After Paul Manafort’s bail was revoked in June for attempting to secure false testimony from two witnesses, Giuliani stunningly remarked, “You put a guy in jail if he’s trying to kill witnesses, not just talking to witnesses.” And how is it supportive of the administration of justice to flout that one could break the law and go unpunished, as Giuliani did on June 3 when he stated that President Trump could have “shot James Comey” and not be prosecuted?
The preamble to the Professional Rules of Conduct echoes Professor Snyder’s call to the members of the profession:
As an officer of the legal system, each lawyer has a duty to uphold the legal process; to demonstrate respect for the legal system; to seek improvement of the law; and to promote access to the legal system and the administration of justice. In addition, a lawyer should further the public’s understanding of and confidence in the rule of law and the justice system because, in a constitutional democracy, legal institutions depend on popular participation and support to maintain their authority.
Giuliani’s departure from this norm, with high stakes and high profile, threatens our constitutional democracy. If any principle is sacrosanct in the United States, it’s that we are a nation of laws and not of men, where the rule of law stands above everyone, including the President. Giuliani’s daily assaults on the legal process, the concept of truth, and the notion that the President must also be subject to the rule of law are all in direct contravention of his obligations as a member of the bar. Rather than upholding the legal process or respecting the legal system, he has sought to denigrate it. Abandoning his professional responsibility in defense of his client, he has deliberately sought to weaken the public’s confidence in the justice system.
When one searches for Giuliani’s status as an attorney in New York, you find this:
Given his numerous deviations from state professional responsibility rules, the blank entry under disciplinary history is blinding.
The need for the State attorney disciplinary committee to investigate Giuliani’s conduct is not rooted in some political agenda. Rather, it’s about upholding the norms of conduct that are, as Professor Snyder warned, critical to the functioning of liberal democracy.
Giuliani may not care if his attorney registration is revoked, but that’s not the point. Other lawyers throughout the White House and executive branch are watching Giuliani’s behavior as a lawyer for the President of the United States. So are countless lawyers around the world. If his actions are normalized as acceptable conduct for an attorney, yet another guardrail of liberal democracy will have been shattered. If the rules of professional conduct in New York are to mean anything, they need to be enforced here.
Ian Bassin (@ianbassin) is Executive Director at Protect Democracy and Deana El-Mallawany is Counsel at Protect Democracy.