Giuliani's Suspension: Questionable Statements, But Not by Him
On motion by an Attorney Grievance Committee, a New York Appellate Court suspended Rudy Giuliani, a member of President Donald Trump's personal legal team, from the practice of law for making supposedly false claims about the 2020 U.S. presidential election. Most of the public will read headlines and short articles about the foregoing and assume that Giuliani was proven to a court's satisfaction to have knowingly lied. But upon closer examination of the ruling by the New York appellate court, we see clearly questionable statements — not by Giuliani, but about him.
What was bizarre about this ruling, especially to any experienced lawyer, is that Giuliani was suspended before it was even determined preliminarily that an investigation of him should be opened. The court disqualified Giuliani on an emergency ad hoc basis, implicating Trump's Sixth Amendment right to counsel and Giuliani's First Amendment right to free speech. The court's ruling also does not find problematic the Fifth and Fourteenth Amendments, requiring a due process hearing before any deprivation of a right, privilege, or property interest.
So what justified this pre-hearing, pre-investigation suspension, based on conduct not even remotely involving the State of New York? The court was concerned that Giuliani might cast doubt on the legitimacy of the duly elected president, Joseph R. Biden, a claimed legitimacy the court repeated to distraction. The ruling claims that Giuliani's "false statements intended to foment a loss of confidence in our elections and resulting loss of confidence in government generally." Moreover, Giuliani "tarnishes the reputation of the entire legal profession" besides "the falsehoods themselves caus[ing] harm." After all, we would not want the trusting public to think some lawyers are sleazy; that our government would lie; or, horrors, that a local urban government would be incompetent.
What is so shockingly dangerous to the public about Giuliani's words? Hold on to your hats.
To set up one of Giuliani's main outrages, we offer preface regarding the slight nuances between a fraud claim and an allegation of fraudulent conduct. Often a legal complaint pleads a fraud claim, which must be pleaded with "particularity." But many other claims have allegations of fraudulent conduct as part of the underlying basis. For example, claims of real estate broker malpractice may be based upon fraudulent statements, whether a separate claim of fraud is made or not. Same with trade secret, patent, unfair competition, and even breach of contract claims. So an allegation of fraudulent conduct is not the same as a claim of fraud. Easily understood, right? Apparently not by a court that may not have wished to understand it.
In the Donald J. Trump for President, Inc. v. Boockvar (Boockvar) case in Pennsylvania on behalf of President Trump, Giuliani had filed a complaint with two claims: 1) poll-watching or "canvasser" fraud and 2) lack of equal protection as between "red" and "blue" polling places. The Equal Protection claim was based in part on the allegations about fraudulent conduct by the poll-watchers and canvassers.
Shortly before a court hearing in Boockvar, the Pennsylvania Supreme Court ruled that the "canvasser" fraud claim was not legally cognizable. So Giuliani's team quickly filed an amended complaint removing the canvasser fraud claim but keeping in all the allegations of fraudulent conduct in support of the equal protection claim. So the equal protection claim with allegations of fraudulent conduct all stayed exactly as it had been in the original complaint. If you easily understand this, you are likely a step ahead of the New York appellate court.
The order quotes Giuliani's forthright, and correct, response to the court that the Equal Protection claim incorporated the fraudulent "canvasser" conduct:
THE COURT: So, it's correct to say then that you're not alleging fraud in the amended complaint?
RESPONDENT: No, Your Honor, it is not, because we incorporate by reference in 150 all of the allegations that precede it, which include a long explanation of a fraudulent, fraudulent process, a planned fraudulent process.
THE COURT: So, you are alleging fraud?
RESPONDENT: Yes, Your Honor.
Per the above explanation, Giuliani truthfully noted through the incorporation by reference that the amended complaint was alleging a "fraudulent process." Then the court asked Giuliani if he was making a claim of fraud, which must be pleaded with particularity:
THE COURT: So, the amended complaint — does the amended complaint plead fraud with particularity?
RESPONDENT: No, Your Honor. And it doesn't plead fraud. It pleads the — it pleads the plan or scheme that we lay out in 132 to 149 without characterizing it.
So Giuliani truthfully said he was not pleading a claim of fraud. It was clear, in any case, from the amended complaint, which did not have in it a fraud claim (but did incorporate allegations of a fraudulent process). Anyone could read that the fraud claim had been dropped from the original complaint to the amended complaint. But not according to the New York appellate court:
Respondent repeatedly represented to the court that his client, the Plaintiff, was pursuing a fraud claim when indisputably it was not. Respondent's client had filed an amended complaint before the November 17, 2020 appearance in which the only remaining claim asserted was a equal protection claim not based on fraud at all[.]
There are two problems with this finding by the court. First, Giuliani never said he was "pursuing a fraud claim." That is a misstatement by the court. Secondly, the court said the Equal Protection claim was "not based on fraud at all." That was also untrue because Giuliani made clear that the long process of fraudulent conduct was incorporated by reference in the Equal Protection claim. So these statements by the court, not the statements by Giuliani, are untrue and confuse the public.
What is doubly disingenuous about this finding by the court is that both sets of counsel made it abundantly clear that the plaintiff was asserting no claim of fraud, which the court duly notes:
After opposing counsel pointed out, and Respondents (Trump's) own co-counsel agreed, that the Plaintiff had asserted no claims of fraud[.]
Clearly, the Court in Boockvar was not misled.
To buttress the ferocious defense of Biden's legitimacy, the court characterized former attorney general William Barr's election investigation, saying he found "there was nothing showing that the outcome of the election would be different."
But in making that statement, this court, which criticized Giuliani for not including all facts pertinent to his claims, omitted the following position of Barr, as ably presented by the Washington Post:
In an interview with the Associated Press, Barr endeavored to make clear that whatever disputes Trump might have with the election, the Justice Department is not the appropriate institution to resolve them. The department, he said, examines crimes, while state and local officials audit voting results. "There's a growing tendency to use the criminal justice system as sort of a fix-all and people don't like something they want the Department of Justice to come in and investigate," he said.
Even more surprisingly, the court also sanctioned Giuliani for opining that with approximately five million illegal aliens in Arizona, some percentage of them likely voted. This is a commonsense inference, especially since it is likely that many illegal aliens do not understand that they cannot vote, and language difficulties may lead them to be registered, even if they do not intend to break the law.
But Giuliani had more than logical inferences backing up his statements. Arizona state senator Kelly Townsend had collected evidence, as the appellate court noted, and Giuliani's team also knew of numerous Arizona witnesses and anecdotes. So wouldn't this establish a "good faith" defense that Giuliani had a basis for his free speech claim? Not according to the New York appellate court, which based its suspension in part on Giuliani's not producing, prior to any open investigation, the full Arizona case, not merely a sworn statement that the evidence exists in the possession of a reputable Arizona state senator.
Thus, an ex-president has lost his chief lawyer mainly for the sin of casting doubt on the legitimacy of Joseph R. Biden as a duly elected president, an issue of great public importance.
Ironically, a close examination of this extremely unfair opinion reveals it to be very much like a court ruling to be expected from a less developed, authoritarian country, and it lends strength, not weakness, to questions about our last election.
John D. O'Connor is a former federal prosecutor and the San Francisco attorney who represented W. Mark Felt during his revelation as Deep Throat in 2005. O'Connor is the author of the book Postgate: How the Washington Post Betrayed Deep Throat, Covered Up Watergate, and Began Today's Partisan Advocacy Journalism and the host of the new podcast series The Mysteries of Watergate.
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