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.