Gerhardt: The Entire White House Defense Team Will Face Bar Charges

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There have been suggestions that the White House defense team could be brought up on bar charges for their arguments in the Senate. I have previously written that such statements by Speaker Nancy Pelosi and others are vindictive and ill-informed. The White House team were effective advocates for their clients and we do not disbar lawyers for making arguments or defending individuals that we do not like. I was surprised and disappointed therefore that my fellow witness from the Trump impeachment hearing, North Carolina Law Professor and CNN Legal Analyst Michael Gerhardt joined this dubious argument on CNN yesterday. The call for ethics charges seems dangerously close to the view of Lawrence O’Donnell that Trump defenders are barred from his MSNBC program because they are all “liars.”

Obviously, Gerhardt and I have substantial disagreements. Gerhardt supported the articles of impeachment based on bribery and other crimes. I opposed those four articles, which were ultimately rejected by the Committee. The Committee went forward with the two articles that I said would be legitimate but remained unproven. We later disagreed when Gerhardt declared that this impeachment was the first time that the White House closely coordinated with his own party on the handling of the impeachment trial. Those however were academic differences over the history and interpretation of prior presidential impeachment cases.

This however is different. Proponents of the impeachment seem to be lashing out at counsel and suggesting that they were acting unethically in zealously advancing the President’s defenses. After disagreeing with me that the impeachment was not “rushed” prematurely, Gerhardt asked to make a different point about the defense team. He declared

“I think what we are seeing as well is that the lawyers who presented his case in the Senate basically misled or lied to the Senate. And so at one point — at some point we are going to see ethics charges brought against these lawyers for making false statements, which we now all know were false.”

CNN host Poppy Harlow followed up by asking Gerhardt “Do you think the D.C. Bar . . . is actually going to hold Pat Cipollone, for example, to account for this?” Gerhardt doubles down against everyone on the legal team: “I think what we are seeing as well is that the lawyers who presented his case in the Senate basically misled or lied to the Senate. And so at one point — at some point we are going to see ethics charges brought against these lawyers for making false statements, which we now all know were false.”

It is not clear what Gerhardt believes were statements “we now all know were false.” It is incumbent on an attorney to be specific about the false representation when he is saying that “we are going to see ethics charges brought against these lawyers for making false statements.” He is saying that the entire team will be charged with ethical violations – a very serious allegation against all of these lawyers. Indeed, such a statement itself can be viewed as a matter of per se slander for impugning professional ethics and conduct. Even clients have been held liable for unsupported claims.

Moreover, bar associations are equally concerned about the ethics of impugning the conduct of other lawyers without sufficient support. Various ethics opinions warn that threatening or declaring bar violations can be unethical, particularly when (if true) you are under an obligation to actually report such conduct. If there is a lack of a good faith basis or support, it can violate professional standards.

The Gerhardt charge appears to be a loose reference to the a series of leaks and newly obtained evidence that showed that Trump was involved in seeking the investigations in May 2019. It is a curious foundation. The team did not deny that Trump wanted the investigations and cited the fact that the controversy over the Biden contract had been raised in the media since the Obama Administration. Recently, discussed emails also show that Trump was communicating on the possible freeze with other officials. Again, that is not on its face proof of any intentional false statements by counsel, who argued that Trump was long concerned about foreign assistance to the country.

There is also the report that former national security adviser John Bolton claims in his forthcoming book that Trump directed him to ensure that Ukrainian President Volodymyr Zelensky would meet with Rudy Giuliani, the president’s personal attorney — a meeting allegedly attended by acting White House chief of staff Mick Mulvaney and White House counsel Pat Cipollone. Once again however that such a statement, if made, would not be materially different from what was argued. The White House released the transcript showing that Trump wanted to arrange a meeting with Giuliani. What Trump has recently denied is that he ever told Bolton that the Ukrainian aid was linked to the investigations.

Moreover, the White House team landed some haymakers themselves in showing that the House Managers misrepresented aspects in the record. House manager Adam Schiff was previously given four Pinnochios by the Washington Post for his denial of any contacts between his staff and the whistleblower. Should he join this line of counsel to be frog-marched to the bar? Such disagreements tend to be the grist of the litigation mill. Lawyers often present one-sided views of the record that the other side views as unfair or unsupported. We do not declare on national television that the entire opposing legal team “will” (not even “may be”) called before the bar.

The defense took the record of the House and did what good lawyers do: they argued the best case within that record. We cannot allow the age of rage to adopt William Shakespeare’s line from Henry VI: “The first thing we do, let’s kill all the lawyers”. It is even worse when it is lawyers seeking to shoot lawyers.

261 thoughts on “Gerhardt: The Entire White House Defense Team Will Face Bar Charges”

  1. You were a witness called by Republicans in the House – and not the only one. Therefore, you know for a fact that when the President’s team of lawyers repeatedly said the Republicans did not call any witnesses in the House, they were saying something objectively untrue. Similarly, when they said repeatedly that Republicans were not allowed at depositions in the House – when a lot of Republicans were there and asking questions of the witnesses – it was objectively untrue.

    There were many statements like this. If this were a court, a good judge would not have allowed them to repeat these lies, and given the brazenness and repetitiveness of the lies may have referred them to the bar for disciplinary action.

  2. What do you call it when you see a dozen lawyers up to their necks in cement?

    “Not enough cement.”

  3. The absurdity of this is that most people outside the profession think lawyers are paid liars.

    In contrast with the truth, which is that most members of the House team are lawyers and elected officials, and therefore immunized against such criticism.

  4. A brief perusal of Gerhardt’s bio demonstrates irrefutably that he is a partisan Democrat ideologue. And apparently not a particularly bright one, despite the protective coloration that membership in the legal professoriate uniquely bestows.

    If he’s serious, then let him file a complaint against the President’s legal team with the DC Bar. If not, let him prepare to be sued for slander.

  5. Actually, the situation would appear to be similar to the BP Oil Spill Litigation, in which BP was defended principally by Kirkland & Ellis, where Barr, Cipollone and Starr were all apparently partners at some point. As suggested in that case, a lawyer is not free to ethically “advocate” a “position” that he or she personally knows to be false as a matter of fact. While that may or may not have happened in the impeachment trial, if it did, it violates Professional Rule 3.3. (Of course, the Rules are not generally applied to corporate defense lawyers in the same way that they are applied to criminal defense, or plaintiff, or family practitioners) (A double-standard reminiscent of the way that many of the Republican Congressmen and Senators pretended to be concerned with Trump’s “due process” rights; put them on a jury in the average inner city criminal court case and see whether they think that circumstantial and/or “hearsay” evidence is really insufficient to convict, or whether they are really concerned about the prosecutor’s motivations.). Dershowitz, for his part, may not have violated the Rules, but he shouldn’t pretend to be speaking as a “Constitutional law ‘expert’” when he is really just grasping at straws on behalf of a client who is a liar and a bully. If you get into Harvard Law School, and you show up for Con Law 1, and he is your teacher, you should get your money back.

  6. Didn’t Adam Schiff fabricate the President’s remarks on a telephone call. This behavior should be considered as a reason to bring bar charges.

      1. David Benson is the God Emperor of Making Stuff Up and owes me forty-two citations (one from the OED, one from the town ordinances and two from the Old Testament), an equation and the source of a quotation, after sixty-two weeks, and needs to cite all his work from now on. – David, you are as wrong as Weart is about climate change. Schift lied on the opening day of the Intelligence Comm. public hearings.

          1. David Benson is the God Emperor of Making Stuff Up and owes me forty-two citations (one from the OED, one from the town ordinances and two from the Old Testament), an equation and the source of a quotation, after sixty-two weeks, and needs to cite all his work from now on. – David, I am still waiting for my citations. Been well over a year now.

              1. David Benson is the God Emperor of Making Stuff Up and owes me forty-two citations (one from the OED, one from the town ordinances and two from the Old Testament), an equation and the source of a quotation, after sixty-two weeks, and needs to cite all his work from now on. – My mental health was checked in December. I am a Stable Genius.

  7. The left is completely out of order. The facts are the facts, but they have been blown out of proportion by the left’s hatred for Trump’s success in the world. Go find answers from the REAL criminals! Disgusting wast of time and money!

  8. Jonathan, if the White House team is to be brought up on ethics charges, what about the House Managers spouting off charges that are not even contained in the impeachment articles as if they were additional charges being raised such as bribery and extortion. That was WAY out of line. If in a court of law Nadler dragged bribery into the argument in charges like that, then made the lame argument that it was mentioned in the articles when in fact is was referencing the text of the Constitution, the judge would toss the entire case out for contaminating the jury. What they did in that hearing was disgraceful to say the least.

    1. You’re assuming a common standard of conduct. You’re talking to people whose standards of conduct are entirely sectarian, and who are emotionally incapable of conceiving any standard which might be impartial.

    2. The Bar Associations around the country know better than to touch this, or else they will unleash a Pandora’s box of ethics complaints against democrat lawyers. Which they do not want. My guess is that some bar associations are also partisan. But they do have a few folks that are non-partisan. To them I say god bless you.

      1. lawyer licenses are policed by STATE SUPREME COURT APPOINTED BUREAUCRATS

        they are not actually bar association people, though the bars work closely with them

        i have explained this many times. chime in with questions, trust me i know the ropes intimately

    3. anybody can make an ethics complaint. if they’re garbage then the investigators will just throw them in the denied box.

      but if they get a thousand like that, then they will notice

      i say people should go beef on Laurence Tribe who called the Senate leader a dxxxhead. you can allege that he violated RPC 8. unsportsmanlike conduct, basically. i have posted the link to the Mass ethics capos repeatedly

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