After the 2020 presidential election, Rudy Giuliani’s work as Donald Trump’s personal lawyer followed a predictable pattern. Giuliani, a former U.S. attorney, New York mayor, and Republican presidential candidate, would make wildly implausible, completely unsubstantiated claims about election fraud, always promising that he was about the reveal heretofore unseen proof of the criminal conspiracy that supposedly denied Trump his rightful victory. But Giuliani never produced that evidence, which helps explain why the scores of post-election lawsuits filed by Trump and his supporters were almost uniformly unsuccessful.
Giuliani nevertheless hoodwinked many Republicans, most of whom say they believe the election was stolen, and he continued to tell his tall tale for months after Joe Biden took office, notwithstanding the defamation lawsuits and disciplinary proceedings it provoked. Even as a New York appeals court was considering whether to bar Giuliani from practicing law in that state, he kept spouting nonsense about dead, underage, and noncitizen voters.
Last Thursday that court deemed Giuliani’s persistent prevarication a grave enough ethical breach to justify an immediate suspension of his law license. It added that Giuliani’s “uncontroverted misconduct” will “likely result in substantial permanent sanctions at the conclusion of these disciplinary proceedings.” The court’s order includes a detailed (though incomplete) list of lies that may (but probably won’t) interest Trump supporters who still think Giuliani was telling the truth. At the same time, the decision to discipline Giuliani mainly for out-of-court statements raises some serious questions about how far the government should go in regulating lawyers’ speech.
“There is uncontroverted evidence that respondent 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,” the court says. “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 from the practice of law, pending further proceedings before the Attorney Grievance Committee.”
The committee accused Giuliani of violating New York’s Rules of Professional Conduct for attorneys in several ways: by knowingly making “a false statement of fact or law to a tribunal”; by “knowingly mak[ing] a false statement of fact or law to a third person…in the course of representing a client”; and by “engag[ing] in conduct involving dishonesty, fraud, deceit or misrepresentation” or other conduct that “adversely reflects on the lawyer’s fitness as a lawyer.” The appeals court’s catalog of Giuliani’s offenses, while by no means exhaustive, is a vivid reminder of why no one should have believed him last year and why no one should ever take him seriously again. Here are some of the misrepresentations cited by the court:
Phony Absentee Ballots in Pennsylvania
Giuliani repeatedly claimed that Pennsylvania reported results from more absentee ballots than it had mailed to voters before the election. Specifically, he asserted that just 1,823,148 absentee ballots had been sent out, making the official count of 2.5 million absentee votes patently fraudulent. In reality, more than 3 million Pennsylvania voters received absentee ballots.
“Respondent does not deny that his factual statement, that only 1.8 million mail-in
ballots were requested, was untrue,” the appeals court notes. “His defense is that he did not make this misstatement knowingly. Respondent claims that he relied on some unidentified member of his ‘team’ who ‘inadvertently’ took the information from the Pennsylvania website, which had the information mistakenly listed. There is simply no proof to support this explanation. For instance, there is no affidavit from this supposed team member, who is not identified by name or otherwise, nor is there any copy of the web page that purportedly listed the allegedly incorrect data.”
False Statements in Federal Court
When Giuliani appeared before a federal judge in November to make the case for overturning Pennsylvania’s election results, he repeatedly said the Trump campaign’s lawsuit alleged voting fraud before ultimately conceding that it did not. “Respondent had to be aware that there were no fraud claims in the case,” the appeals court says. “Significant time and effort were expended on respondent’s false misrepresentations to the court regarding the nature of the proceedings. This resulted in respondent’s arguments in support of fraud appearing to be seemingly unanswered on the record and misleading the listening public, because fraud was not a part of the case.”
Dead Voters in Philadelphia
In Philadelphia, Giuliani said, 8,021 ballots were cast under the names of dead people. He also claimed the number was 30,000. His favorite example was former heavyweight boxer Joe Frazier, who supposedly continued to show up as a Philadelphia voter in election records years after his death in 2011. “He is still voting there,” Giuliani claimed a few days after the 2020 election.
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 during the 2020 presidential election,” the appeals court says. It also notes that “public records show that Pennsylvania formally cancelled Mr. Frazier’s eligibility to vote on February 8, 2012, three months after he died.”
Giuliani said his claim that Joe Frazier voted in the 2020 election was based on a blog post he read. But as the court notes, that article made no such claim.
Vote Counting in Georgia
In Georgia, Giuliani claimed, vote tabulation machines supplied by Dominion Voting Systems switched Trump votes to Biden votes, creating a false tally that gave Biden a phony victory. But as the appeals court notes, a hand recount of Georgia’s paper ballots “confirmed the results of the election,” and Giuliani “provides no basis in this record for disputing the hand count audit.”
The court notes that Giuliani is a defendant in a $1.3 billion defamation lawsuit that Dominion filed in January. “Consequently,” it says, “we do not reach the issue of whether respondent’s claims about the Dominion voting machines were false, nor do we need to.”
Underage Voters in Georgia
Giuliani claimed 65,000 people younger than 18 had voted in Georgia. He also put the number at 66,000 and 165,000. But when Georgia Secretary of State Brad Raffensperger’s office “compared the list of all of the people who voted in Georgia to their full birthdays,” the appeals court notes, it found “there were zero underage voters in the 2020 election.”
Giuliani “claims that he reasonably relied on ‘expert’ affidavits, including one by Bryan Geels, in believing the facts he stated were true.” But “none of these affidavits were provided to the Court,” and even the statement attributed to Geels, a CPA who owns a data security consulting firm, “does not support respondent’s claim that the number of underage teenage voters was 165,000.”
Georgia Voters With Felony Records
Giuliani claimed more than 2,500 felons voted in Georgia. An investigation by Raffensperger’s office put the number at no more than 74.
“Respondent claims to have relied on the unproduced affidavit of Mr. Geels for
this information as well,” the appeals court notes. “Respondent states that Mr. Geels opined that ‘there could have been’ more than 2,500 incarcerated felons who voted This opinion, as phrased and as reported by respondent, is wholly speculative. It is also conclusory, rendering it insufficient for the same reasons as is Mr. Geels’ reported opinion regarding underage voters.”
Dead Voters in Georgia
Giuliani said he had a list of 800 people who were recorded as voting in Georgia even though they had died before the election. He said the total number could be in the thousands. Later he confidently asserted that it was 6,000.
Raffensperger’s office, by contrast, found that “potentially two votes may have been improperly cast in the name of dead voters in the 2020 election.” Giuliani “does not claim that either of the identified experts he relied upon for information about the Georgia election made any statement to him whatsoever regarding the number of dead people in whose names votes were allegedly cast in the 2020 election,” the appeals court notes, “and he does not provide any other source for the false numerical information he disseminated.”
Imaginary Suitcases of Fake Ballots
Giuliani presented misleading snippets of security camera footage as evidence of election fraud in Atlanta. “The gist of his claim was that illegal ballots were being surreptitiously retrieved from suitcases hidden under a table and then tabulated,” the appeals court notes. But the full version of the surveillance video, which Giuliani said he had watched, did not show that or anything else nefarious.
“If, as respondent claims, he reviewed the entire video, he could not have reasonably reached a conclusion that illegal votes were being counted,” the court says. “We disagree that the video can be viewed as evidence of illegal conduct during the vote tabulation process or that it provided a reasonable basis for respondent’s conclusions.”
Illegal Immigrants in Arizona
Based on his own estimate that 5 million “illegal aliens” live in Arizona, Giuliani asserted that “a few hundred thousand” of them voted in the 2020 election. On another occasion, he averred that “the bare minimum is 40 or 50,000,” and “the reality is probably about 250,000.” He subsequently changed his estimate again, saying 32,000 unauthorized residents had voted in Arizona.
“These numerical claims are so wildly divergent and irreconcilable that they all cannot be true,” the appeals court says. “Respondent even admitted that he did not have the ‘best sources’ to justify the numbers he was stating as fact. Nonetheless, respondent has failed to produce any sources, whether ‘best’ or marginal, to support any of the figures he has presented to the public with authority.”
Giuliani said he was relying on what a state legislator in Arizona had told him, but he did not provide any of that information. He also said he was relying on “other witnesses,” but he did not identify those witnesses or supply any of their testimony.
‘the falsehoods themselves cause harm’
The Attorney Grievance Committee for New York and Bronx counties, which sought the suspension approved by the appeals court, argues that Giuliani’s false allegations of election fraud stoked an imaginary grievance that culminated in the Capitol riot on January 6. Giuliani, who spoke at the “Save America” rally that preceded the riot, says the committee can’t prove he was responsible for the violence that day.
“We need not decide any issue of ‘causal nexus’ to understand that the
falsehoods themselves cause harm,” the appeals court says. “This event only emphasizes the larger point that the broad dissemination of false statements, casting doubt on the legitimacy of thousands of validly cast votes, is corrosive to the public’s trust in our most important democratic institutions.”
Only one of the false statements cited by the appeals court was part of a legal proceeding. Giuliani made the rest in out-of-court contexts such as press conferences, TV or radio shows, and meetings with Republican legislators. The appeals court nevertheless counts them as statements made “in the course of representing a client,” which presumably is also the way Giuliani will portray them while defending himself against Dominion’s defamation suit. But South Texas College of Law professor Josh Blackman, in a Volokh Conspiracy post titled “Rudy’s First Amendment Right to Lie to the Press,” argues that such broad regulation of lawyers’ speech is constitutionally problematic. Blackman cites a Washington Post op-ed piece in which Fordham law professor Bruce Green and NYU law professor Rebecca Roiphe express similar concerns:
In Giuliani’s case, the court gave the First Amendment concerns short shrift, because the case was about his professional improprieties “in connection with his representation of a client.” We agree that courts have the right to enforce rules requiring lawyers to be truthful to protect the integrity of a court proceeding or the wellbeing of a client. But it is hard to see how either of those are at issue here….
Lawyers have the right as private citizens to engage in political debate. This includes a right to lie about the government—not because lies are desirable, but because it is too dangerous to give the state the power to determine which statements are true or false when it comes to political speech. Robust political debate would be chilled because people would fear misspeaking. Efforts to expose government wrongdoing would be abandoned out of concern about retribution.
To encourage criticism of the government, the First Amendment gives the public breathing room. Lawyers need it too. They should not have to choose between a law license and the license to engage in the same vigorous political speech as other citizens. It is true that lawyers are officers of the court, but they have also historically played an important part in holding government to account. It would be a shame to strip them of this powerful role.
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