No, Schumer Did Not Violate Legal Ethics In His Threat Against The Court

I previously wrote about the highly improper threats made against the Supreme Court by Senate Minority Leader Chuck Schumer (D., N.Y.). Schumer is now facing both complaints in the Senate and in the New York bar. The Senate has a legitimate concern about a member threatening the Court with retaliation if it does not rule in the way that he favors. However, as my column noted, Senator Whitehouse and others have made the same type of threats. Any censure or sanction remains a matter for the Senate but it would have to distinguish between Schumer’s statements and past hyperbolic statements of other senators. My main concern is the the bar complaint against Schumer. Despite my stated and strong disapproval of his threats against Associate Justice Neil Gorsuch and Brett Kavanaugh, I do not believe that this is a matter for the New York bar. Indeed, I view the effort as a threat to protected political speech.

Attorney Joseph Gioconda sent a letter of complaint to New York’s Grievance Committee for the Second Judicial District stating that “[a]t a minimum, Attorney/Senator Schumer’s statements appear to be improper conduct that reflects upon his character and fitness to practice law in New York.”

The conservative National Legal Policy Center also filed complaints with both the New York bar and the Senate Ethics Committee. In its bar complaint, it argued that Schumer’s “conduct . . . is prejudicial to the administration of justice.”

I have previously objected to this type of bar action used against public officials for conduct deemed inappropriate or offensive.

The NLPC alleged that Schumer violated New York’s Rules of Professional Conduct through “conduct that is prejudicial to the administration of justice.” That reference to Rule 8.4 adopts a sweeping scope that is not evident in either the language or the past interpretations. Indeed, the ABA comments shows that the focus is on the “practice of the law” which is defined in the comments:

“Conduct related to the practice of law includes representing clients; interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice of law; operating or managing a law firm or law practice; and participating in bar association, business or social activities in connection with the practice of law.”

The comments do reference public office:

“Lawyers holding public office assume legal responsibilities going beyond those of other citizens. A lawyer’s abuse of public office can suggest an inability to fulfill the professional role of lawyers. The same is true of abuse of positions of private trust such as trustee, executor, administrator, guardian, agent and officer, director or manager of a corporation or other organization.”

However, nothing in the rule suggests that the Bar is claiming the right to monitor legislative or political statements. In this matter, Schumer was clearly speaking as a legislator. He later apologized, though the apology seemed more like a curious road rage defense. Yet, if the New York bar is claiming the authority to monitor such reckless political comments, it would delve deeply into the regulation of political speech. It would also invite arbitrary and partisan enforcement by the Bar, which is viewed as overwhelmingly both liberal and Democratic. The same could be true for a more conservative state bar which could use its ethics review boards to pursue liberal members. These are not statements that go to the practice of law but the practice of politics.

Schumer’s comments were as moronic as they were menacing. However, they were not unethical as a matter of the New York bar.

37 thoughts on “No, Schumer Did Not Violate Legal Ethics In His Threat Against The Court”

  1. I am the attorney who submitted one of the (many) ethics complaints against Senator/Attorney Schumer.

    Here is the full text of my letter:

    On March 4, 2020, while speaking at a public rally on the steps of the United States Supreme Court building during oral argument in an abortion provider case (June Medical Services v. Russo), Attorney/Senator Charles E. Schumer apparently made the following statements:

    “I want to tell you, Gorsuch. I want to tell you, Kavanaugh—you have released the whirlwind and you will pay the price. You won’t know what hit you if you go forward with these awful decisions.”

    See Jan Wolfe and Lawrence Hurley, “U.S. Chief Justice Slams Schumer for ‘Dangerous’ Comment on Justices in Abortion Case,” REUTERS, March 4, 2020. Subsequently, the Chief Justice of the United States issued a public statement, condemning the statements made by Senator/Attorney Charles E. Schumer. See id

    In a letter released Wednesday, March 4, 2020, Chief Justice John Roberts equated Attorney/Senator Schumer’s remarks to threats made upon the federal judiciary: “Justices know that criticisms come with the territory, but threatening statements of this sort are not only inappropriate, they are dangerous. All Members of the Court will continue to do their job, without fear or favor, from whatever quarter.” See Adam Liptak, John Roberts Condemns Schumer for Saying Justices ‘Will Pay the Price’ for ‘Awful Decisions’, THE NEW YORK TIMES, March 4, 2020.

    Senator/Attorney Schumer’s public threats may violate criminal provisions of federal law. See 18 U.S.C. § 875(c) (interstate communication containing a threat of injury); 18 U.S.C. § 1503 (a) (threats of force in an effort to intimidate an officer of a court). A federal judge is an “officer in or of’ the court within the meaning of § 1503. See, e.g., United States v. Fasolino, 586 F.2d 939 (2d Cir. 1978) (per curiam).

    At a minimum, Attorney/Senator Schumer’s statements appear to be improper conduct that reflects upon his character and fitness to practice law in New York, which is the purview of this Committee.

    Specifically, it would appear that Attorney-Senator Schumer has engaged in conduct that is prejudicial to the administration of justice in violation of Rule of Professional Conduct 8.4, and he has attempted to improperly influence the U.S. Supreme Court’s decision on a pending case by his threatening public statements.

    If these comments were made inside a courtroom, there can be no doubt of the serious repercussions. This Committee must decide whether sweeping those comments out the front door to the steps of the courthouse, while intentionally amplifying them via the media and continuing to direct them toward officers of the Court by name, somehow absolves Mr. Schumer of all consequence.

    1. Or if the ethics czars wont clip his wings under RPC 8.4, maybe they will at least allow us lesser mortal lawyers to exercise a wider range of quasi-threatening free speech ourselves like Chuckie did?

      probably not but i keep wishing

  2. Well, that’s just too bad, he should have went all out and seriously threatened the judges, I’d love to have seen Schummer prosecuted and jailed.

  3. What is your view of the harsh, public criticism United States District Court Judge, Lynn Adelman, laid against United States Supreme Court Chief Justice Roberts?

    It does not seem proper.

    Between over-the-top leftist judges who think they run the legislature and executive, [and now the Supreme Court] and squishy, spineless Roberts, and the Star Chamber FISA [Stasi] ‘Court’, the entire federal judiciary is taking on a Third World patina.

  4. Senator Schumer was standing at a podium in front wan angry group of protesters. At the very least, he brought harm to both Supreme Justices he threatened by name. Anyone else would have been accused of inciting a riot. I can’t believe you mean to condone that behavior.

    1. Then Phyllis, no doubt you are equally incensed at Trump’s threat toward Adam Schiff. Unlike Schumer he has not apologized and in fact never has for anything. Schiff has received death threats.

      “Shifty Adam Schiff is a CORRUPT POLITICIAN, and probably a very sick man. He has not paid the price, yet, for what he has done to our Country!”

      “Somebody please tell incompetent (thanks for my high poll numbers) & corrupt politician Adam “Shifty” Schiff to stop leaking Classified information or, even worse, made up information, to the Fake News Media. Someday he will be caught, & that will be a very unpleasant experience!”

      “An Arizona man indicted in October for threatening to kill Rep. Adam Schiff (D-Calif.) told police he was likely reacting to a Fox News segment when he left the alcohol-fueled voicemail, according to newly filed court documents.

      Jan Peter Meister, a convicted sex offender with a long rap sheet, was indicted on Oct. 23, 2019 for leaving the voicemail with Schiff’s Washington, D.C. office. After a search of Meister’s residence, prosecutors also charged him with illegal possession of firearms, including a loaded .380 caliber handgun, a 9mm handgun and an American Tactical Rifle, along with 700 rounds of ammunition….”

      1. No, I am not since Schiff has done much more to Trump than threatening. He has actively undermined the Presidency for 3 years and should be charged and punished for treason.

        1. Then Phyllis, we should not take your concern about threats seriously since you are OK with threats against people you don’t like. Good to know, if also depressing.

              1. I don’t try to justify threats against public figures right after pretending to be shocked by this behavior, so yeah, I guess I am ethically superior to you. Not a high bar.

                1. You are not ethically superior to a rattle snake. You obviously suffer from Narcissism, Borderline Personality Disorder, BiPolar Disorder, and snake-in-the grass disorder.

  5. Apparent to me that Schumer has consistently violated his Oath of Office. Must be under the impression that it has the six word Presidents only escape hatch but in supporting a foreign ideology and being clearly anti constitutional one could hardly escape the connection over the years to purposes of evasion which makes him much the same as Bernie Sanders for hiding his true political allegiance and for that matter Pelosi for seating those who refused to take the required oath of office, the Four Squats and the bulk of the DNC leadership.

    And all the pretty pictures in the world won’t clear his/their guilt

  6. “No, Schumer Did Not Violate Legal Ethics In His Threat Against The Court”

    – Professor Turley
    ______________

    Nancy Pelosi, House democrats and RINO’s violated ethics and fundamental law in their threats against the power of the President and the Commander-In-Chief.

    Nancy Pelosi, House democrats and RINO’s committed treason against the United States by “…adhering to their enemies, giving them aid and comfort.” America is in a war and a proxy war with Iran exhibiting clear, present and open hostilities which have resulted in the deaths and injuries of American citizens and American soldiers and military personnel. Democrats and RINO’s in Congress have directly and formally adhered to de facto enemies of the United States and given them aid and comfort by passing the War Powers Resolution on Wednesday, March 11, 2020.

    Congress cannot nullify the power of the commander-in-chief to command American military forces and Congress cannot absolve the President of his duty to provide for the safety of American citizens and the security of America without amending the Constitution. Abraham Lincoln unconstitutionally initiated and prosecuted the Civil War against a sovereign foreign nation for nearly four months without any resolution by Congress and for four years without the necessary formal Declaration of War by Congress.
    ____________________________________________________________________________________________

    Article 3, Section 3

    Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.

    The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attained.
    ___________________________________________

    “Congress passes war powers resolution limiting Trump’s authority to attack on Iran”

    WASHINGTON — Defying a veto threat, Congress has approved a bipartisan measure to limit President Donald Trump’s authority to launch military operations against Iran.

    – AP, March 11, 2020
    _________________

    “House Sends Trump Bill to Restrict War Powers on Iran, Setting Up Veto”

    By Catie Edmondson, March 11, 2020

    The House gave final approval on Wednesday to a bipartisan resolution aimed at forcing President Trump to get explicit approval from Congress before taking further military action against Iran, in a bid by lawmakers to reassert congressional war powers that is all but certain to be thwarted by a presidential veto. The vote, 227 to 186, amounted to a rare move by Congress to claw back its authority over matters of war and peace from a president who has a penchant for unilateral action and little patience for consulting with lawmakers. It lands a jab at Mr. Trump as he attempts to confront the growing outbreak of coronavirus, more than two months after he moved without congressional authorization to kill Iran’s most important commander. Mr. Trump has threatened to veto the legislation, arguing that it is unnecessary because the United States is not currently engaged in any use of force in Iran, and that it would send “a very bad signal” of weakness to Iran. The Senate passed the measure last month in a bipartisan vote, but neither that resolution nor the one that was approved on Wednesday drew the two-thirds majority support needed to override a veto. Still, lawmakers argued on Wednesday that action to curtail the president’s war-making authority was not only necessary, but urgent to stop the erosion of Congress’s wars powers.
    “We do not authorize the president’s reckless actions, nor have we provided authorization for the use of force against Iran,” said Representative Jim McGovern, Democrat of Massachusetts. The administration’s justification for the January strike that killed Maj. Gen. Qassim Suleimani, he continued, “has been about as clear as mud.” As lawmakers pressed the White House in the weeks after the strike for a legal justification for the killing, the administration offered a series of shifting explanations, first maintaining that the president acted in response to an imminent threat, and later giving lawmakers an unclassified memo that asserted it was “in response to an escalating series of attacks in preceding months” by Iran and Iran-backed militias. On Wednesday, Republican lawmakers defended Mr. Trump and the strike, and in scorching terms accused Democrats of attempting repeatedly to undermine the president’s rightful powers as commander in chief. “Iran and its proxies are watching right now as we spin our wheels,” said Representative Michael McCaul of Texas, the top Republican on the Foreign Affairs Committee, adding that they would see a “divided” Congress. “Now is not the time to tie our commander in chief’s hands.”
    _______________________

    “US-Led Airstrikes Underway in Iraq; Retaliation Against Iran-Backed Group That Killed Americans”

    By Katie Bo Williams Senior National Security Correspondent Read bio, March 12, 2020

    The United States carried out airstrikes in five locations across Iraq against the Iran-backed militia group that killed two Americans and one U.K. medic on Wednesday, according to multiple U.S. officials and confirmed by the Pentagon Thursday night. The operation targeted weapons storage facilities that “housed weapons used to target U.S. and coalition troops,” according to a Defense Department statement. “These strikes were defensive, proportional, and in direct response to the threat posed by Iranian-backed Shia militia groups who continue to attack bases hosting coalition forces,” the department said. “These terror groups must cease their attacks on U.S. and coalition forces or face consequences at a time and place of our choosing.” Gen. Frank McKenzie, commander of U.S. Central Command, hinted in testimony earlier Thursday that Wednesday’s attack was conducted by Kata’ib Hezbollah, the same Shia militia group that attacked another Iraqi military base in December, killing an American contractor. “The Iranian proxy group Kata’ib Hezbollah is the only group known to have previously conducted an indirect fire attack of this scale against U.S. and coalition forces in Iraq,” McKenzie said.
    ____________

    “Iran retaliates for Gen. Soleimani’s killing by firing missiles at U.S. forces in Iraq”

    Jan. 7, 2020
    By Courtney Kube and Doha Madani

    Iran retaliated for the killing of Gen. Qassem Soleimani by firing more than a dozen ballistic missiles at two Iraqi air bases housing U.S. forces on Wednesday local time. Washington and Tehran both confirmed that Iran was the source of the missiles. The extent the damage was unclear. Iran’s Supreme Leader Ayatollah Ali Khamenei said the strikes were a “slap in the face” to the U.S. and not sufficient retaliation for the killing of Soleimani, a top general, last week.

  7. He should have been committed a long time ago
    He just can’t get over HRC not being our CIC. So he is trying to destroy our laws,and values. Keep on fighting Chucky always lying and making a idiot out of yourself
    NETWIT

  8. Even though I am a member of the New York Bar, and have been a member of the Ethics Committee of my local bar association for over 15 years, I am not inclined to attempt an analysis of the New York Rules of Professional Conduct here. My focus is a bit different. Even though Senator Schumer’s political speech may be “protected” by the First Amendment, his carefully scripted remarks on the steps of the U.S. Supreme Court were an affront to the Court, his constituents, and so much more – they were bold, outrageous and ill-considered. He came across as a bully of the first magnitude. Moreover, his “apology” was disingenuous.

    I see an inherent danger in the political speech of public officials that seek media attention for commentary on these cases. There is no consideration for the facts of the case or the relevant isssues. There has been an ongoing trend that brings constitutional issues to the forefront in a way that polarizes the nation. Legal issues cannot be effectively analyzed on the basis of sound bites alone. Individuals who have never read Roe v Wade take sides without a thorough understanding of the issues.

    Mr. Schumer’s actions do not reflect well on the New York Bar or the legal profession. And, because his remarks are so partisan, many of his constituents wonder whether he cares about their views. Can a legislator who rationalizes his behavior by declaring that he is from Brooklyn effectively serves New York State? I don’t think so. Term limits might be a good idea.

  9. If a Republican did what Schumer did against Ginsburg and other ultra left wing dung heaps, they would have been physically forced from office within a week.

    1. Trohar, the Republican president has threatened Adam Schiff twice, and unfortunately he remains in office.

      1. Since you say that Shift has been threatened 2 x by the POTUS, would you mind quoting those exact threats? I think there is a huge difference btn a threat and a challenging comment. But that’s me.

  10. “the New York bar is claiming the authority to monitor such reckless political comments, it would delve deeply into the regulation of political speech”

    with respect to the professor, they ALREADY DO REGULATE POLITICAL SPEECH OF LAWYERS

    lawyers face disciplinary actions now over hurt feelings for a lawyer using bad words

    not just cuss words although those for sure

    but also “hateful” speech as innocuous as pointing out that someone is an illegal immigrant in a divorce proceeding, when it’s actually germane to issues. or calling someone “Sweet” which was implied to mean gay which was considered violation of rpc 8.4… both in my mind, over-broad readings of RPC 8.4 and infringling on lawyer free speech. but nobody cared because they were not important fellows like Mr Schumer is!

    https://www.theindianalawyer.com/articles/25487-offensive-language-results-in-disciplinary-actions

    that state is just one of many which have taken such actions.

    I have a whole list of articles and disciplinary actions like that which i have been accumulating over 2 decades

    i’d like to see professor turley do a “legal ethics” commentary on that! please. i’ve been posting about this legal ethics and free speech issue for years

    i guess the question vis a vis schumer would be, can a Democrat say bad things that Republican can’t? because that’s what some of these cases come down to at the level of the street

    years ago a lawyer in ohio was at a ducks unlimited fundraising event. animal rights protesters accosted that lawyer in the street. he called one a bad word. turns out she was a lawyer too and filed complaint on him. he was disciplined. that’s for calling someone a bad name who waylaid him in a public place to call him names and harass him. it was wrong of the Ohio disciplinary authorities to over-apply RPC 8.4 to this situation which by the way is what most of these cases are charged under

  11. As self-appointed Congressional spokesman for the party, Schumer’s actions are actually quite egregious. Imagine threatening Supreme Court justices should they fail to divorce themselves of official responsibility regarding the justness of law in favor of privilege? Consider too that the interests of Schumer and party are one and the same; the party retains power through votes ascribed to its members. Schumer here unquestionably brings to bear, the threat to bring to bear, the full congressional weight of the party, the “six ways to Sunday” of our “seventeen” intelligence agencies, etc., etc., as physical personal professional economic and financial ultimatum clearly expressed – “rule our way or we shall not only inflict pain but destroy you!”

    Mind you, these justices were congressionally appointed. And Schumer is a member of that body.

    Mind you, there leaves little doubt Schumer’s opinion of American ideals enshrined in the Constitution or the role of justices in ensuring perpetuity.

    Mind you, it is only this thing – and believe me, it is a “thing”; there is no word that precisely describes this creation as political anomaly – that has granted Schumer life itself; no where else in the world has the Jew ever been welcome.

    It’s just “incredible.”

  12. “Speaking as a (fill in your own excuse here)”. This is the go to crap that lawyers always pull off when they get caught out. The individual wasn’t acting in his capacity as a lawyer.
    BS!
    My father was a cop. If something went down in the neighbourhood – and where we lived was not where he was an officer – he was expected, no, he was obligated, to go and deal with it. There was no time he was acting in his capacity as a father, neighbour, friend. No, he was a cop.
    But a lawyer can pretend and is allowed to act as if he doesn’t have that expensive education, training, knowledge and responsibility when he says something s/he knows, without question, is wrong.
    There is no excuse for lawyers not being held to a higher standard. I don’t accept Turley’s opinion on this. Schumer should be penalized as harshly is possible.

    1. I agree he needs to be censored or next time will be worse. The more they say and do AND get by with it. The more they will do could
      be even worse

  13. Moronic and menacing are indeed a bad combination but a combination evident in every facet of politics on a daily basis. Exceedingly practiced in the executive branch.

  14. The regulation of political speech is simply a regulation created by politicians for politicians to say what they want, without regard to any civility, or truth, or bold faced lying.
    Prof. Turley, you offer way too many excuses to bad behavior. Where did you ‘compass’ go?

  15. Ethics and Morality? shummer is Lacking in either which creates a confusion created when one’s mind overrides the body’s basic desire to choke the living s**t out of some a**hole who desperately needs it!

  16. Unlike Paul’s hero, Schumer was man enough to apologize for his intemperate language. Case closed.

  17. Schumer gave a non-apology apology and he threatened two justices. He should be disciplined. The legal profession spends too much time covering for each other.

    1. He actually never practiced law. He worked for Kaplan prior to 1974 and went straight into electoral politics on cadging his law degree. He’s been collecting public sector salaries without interruption for 45 years. Debbie Wasserman Schulz is another pure career politician of the Schumer sort. Palsi Pelosi is close. I think she was a schoolteacher for a year or so.

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