As lawyers watching the spectacle of the investigations surrounding the Trump administration, we get to sit in the good seats. We understand the rules of the game and we can follow the action. But however entertaining this game may be, as lawyers we know that two things matter: facts based on reliable, admissible evidence and the just administration of the rule of law. No matter what our political views, we have sworn an oath to uphold these principles.
So how are the lawyers who are involved in these cases doing in upholding their oaths? Since my last Professional Conduct column focusing on the issues raised by the Michael Cohen case, Rudy Giuliani has entered the scene as the president’s lawyer, representing him in both the Department of Justice’s special counsel investigation and the Stormy Daniels case. Leaving for another day the inconsistent explanations Giuliani has provided for the payments to Daniels (see The New York Times article “Trump Undercuts Giuliani About Payments to Stormy Daniels”), we turn to two of Giuliani’s recent comments, one ascribing unconstitutional abuses and illegal motivations to Special Counsel Robert Mueller and one about the credibility of Stormy Daniels.
On June 5, at a press conference in Tel Aviv, Giuliani, the former U.S. attorney of the Southern District of New York, accused Special Counsel Robert Mueller of trying to “frame” the president. This accusation was then supported by Giuliani’s assertion that the special counsel had “revealed no evidence” to indicate the president had engaged in wrongdoing. As a former prosecutor, Giuliani knows the fallacy in this argument: there is no requirement to “reveal evidence” in a federal criminal investigation—either to the public or the target—until after the indictment has been returned by the grand jury. See Federal Rules of Criminal Procedure, Rule 16 (providing for discovery of documents and statements after indictment, upon request by the defendant). In fact, Federal Rule of Criminal Procedure, Rule 6 (e) prohibits disclosure of evidence presented to the grand jury by any participant to the process except the witness. Giuliani provided no evidence to support his accusation and we know his argument is legally wrong.
Further, the allegation that a prosecutor is misusing his or her power to falsely deprive an individual of their liberty cuts right to the heart of our justice system and the prosecutor’s role in it. As the Supreme Court has stated, the prosecutor’s “… interest, … in a criminal prosecution is not that it shall win a case, but that justice shall be done. … It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one,” as in Berger v. United States, 295 U.S. 78, 88 (1935).
Giuliani’s statements accusing a high-ranking Department of Justice official implicate at least two Rules of Professional Conduct: Rule 4.1(a) which prohibits making a false statement of material fact to a third person and Rule 8.4 (d) which prohibits conduct that is prejudicial to the administration of justice.
Turning first to Rule 4.1, the rule states, in pertinent part, “a lawyer is required to be truthful when dealing with others on a client’s behalf …” As the comment to the rule explains, “this rule refers to statements of fact. Whether a particular statement should be regarded as one of fact can depend on the circumstances.” For instance, contrast Giuliani’s statement with a defense lawyer who predicts that his client won’t be convicted or who opines that the evidence is weak. In claiming that the special counsel is abusing his power to “frame” the president, Giuliani is attempting to convince his audience of a fact. To defend his 4.1 violation, Giuliani is going to need some evidence of this statement’s truth.
The statement also violates Rule 8.4 which describes the misconduct that is punishable in Pennsylvania by a sanction ranging from an informal admonition to disbarment. Pennsylvania Rules of Disciplinary Enforcement, Rules 203–204. Subsection 8.4(d) prohibits engaging “in conduct that is prejudicial to the administration of justice.” Prejudicial conduct can include anything from obstreperousness at depositions to lying to the court or suborning perjury. In Pennsylvania, it also includes misconduct by public officials. The Disciplinary Board regards misconduct by public officials as a serious aggravating factor because this misconduct undermines the integrity of the system, see Office of Disciplinary Counsel v. Cappuccio, 48 A.3d 1231 (Pa. 2012) (chief deputy district attorney disbarred for convictions of numerous crimes including corruption of minors). In Cappucio, while the misconduct was deemed not so serious as to preclude reinstatement, reinstatement was denied after eight years because reinstatement after this time period would be “detrimental … to the administration of justice,” see Office of Disciplinary Counsel v. Cappucio, 79 D.B. 2009 (2017). While Giuliani is not currently a public official, his status as a former mayor and U.S. attorney give his statements about an ongoing criminal investigation a legitimacy that exacerbates their threat to our justice system by undermining our faith in prosecutors and the integrity of our system.
Mueller was not the only object of Giuliani’s comments at the Tel Aviv press conference. Regarding Stormy Daniels, Giuliani said the following: “So Stormy, you want to bring a case, let me cross-examine you. Because the business you were in entitles you to no degree of giving your credibility any weight.” This statement implicates Rule 3.6 (a): “a lawyer who is participating in the … litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” Remarking on the credibility of a witness is specifically cited in the comment to the rule as “more likely than not to have a material prejudicial effect on a proceeding.” As lawyers we know that commenting on a witness’ credibility at a press conference violates both the rule and the norms of civil discourse in litigation.
As to the substance of the remarks about Daniels, certainly there is nothing inherently dishonest or illegal about the pornography industry that would justify the opinion that anyone in that “business” had no credibility. Following up on his comments, Giuliani provided this elucidation: “I’m sorry I don’t respect a porn star the way I respect a career woman or a woman of substance or a woman who … isn’t going to sell her body for sexual exploitation.” Two related conclusions can be drawn from this assertion: first, men in the pornography industry retain their credibility while women in the industry are not worthy of respect or belief; second, the credibility of women in general is suspect unless they fit into certain acceptable categories. Again, these comments from a former mayor and U.S. attorney derogating the credibility of an entire gender violate Rule 8.4(d) as they are prejudicial to the administration of justice. In Pennsylvania, these remarks may soon violate another subsection of Rule 8.4: the board is on the verge of amending the definition of misconduct to include discrimination on the basis of gender, among other categories. Recent events, including Giuliani’s remarks on June 5, underscore how important and necessary this amendment is.
It’s true that as lawyers, we understand the rules and can follow the twists and turns of the legal events swirling around this president. But we must do more than watch. Lawyers all around this country are protecting the rights of the indigent, the disenfranchised and the unpopular. We must support these lawyers, at the very least, by upholding the primacy and supremacy of two basic principles: the truth must be proven by reliable, admissible evidence and the rule of law must be applied equally to all.
Reprinted with permission from the June 15, 2018 issue of The Legal Intelligencer. © 2018 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.
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