We previously discussed the abusive move by Rep. Bill Prascell (D., N.Y.) to seek the disbarment of roughly a dozen Trump and Republican lawyers for challenging election results. Such calls have become common place. Indeed, during the impeachment trial of President Trump, North Carolina Law Professor Michael Gerhardt predicted that the entire Trump legal team would be disbarred after their representation of the President.  Now, Democratic Reps. Kathleen Rice (D-N.Y.) and Ted Lieu (D-Calif.), have filed a complaint alleging direct violations of the Rules of Professional Conduct against Trump lawyer Joe diGenova for his recent controversial remarks about fired Cybersecurity and Infrastructure Security Agency head Chris Krebs. In an interview, diGenova called for Krebs to be “drawn and quartered” for his failure to protect this election. While noting that I did not believe that diGenova was actually calling for violence, I immediately criticized those comments.  However, despite the view of ethics professor Stephen Gillers to the contrary, I do not believe that this is even remotely an ethical violation. It is however a clear use of bar rules for a political purpose.  Notably, Rice and Lieu, both lawyers, have been utterly silent on the campaign of harassment and abuse by groups like the Lincoln Project. There have been no calls for disbarment of those attorneys or investigations into threats of violence against Republican lawyers. Indeed, I have not read a single lawyer or law firm supporting the Lincoln Project denouncing its campaign to harassment fellow lawyers — a campaign that began shortly after Joe Biden was declared the presumptive winner of the election.

I have not hesitated to call out counsel for election-related violations that could result in disbarment like the recent Republican lawyer allegedly calling for people to register out-of-state to vote fraudulently in Georgia.  While the comments by diGenova were worthy of condemnation, they were clearly meant as a joke.  It was simply not funny, particularly in these increasingly violent times.

Joe diGenova gave an interview to Newsmax’s The Howie Carr Show and said that Krebs  should be “drawn and quartered” and then “taken out at dawn and shot.” It was a typical over-heated statement of “that guy should be shot” variety. diGenova made it even more absurd by combining it with a medieval method of execution. It was both literally and figuratively an example of overkill.

In an interview with the Washington Examiner, diGenova quickly stated that his comment was a joke and not intended as a threat. He stated “For anyone listening to the Howie Carr Show, it was obvious that my remarks were sarcastic and made in jest. I, of course, wish Mr. Krebs no harm. This was hyperbole during political discourse.”

Nevertheless, these members have filed a bar complaint. Imagine the impact on free speech if lawyers could be pulled in front of state bars for such political statements. This was not in a filing in court. It was a comment on diGenova’s view of a failure to protect the election.  This has nothing to do with the propriety of the underlying comments. I obviously disagree with it. I immediately condemned it. However, it is like the bar complaint filed against Rep. Matt Gaetz (R., Fl.) for his actions in Congress. It is the weaponization of the bar complaint process for political purposes.

The basis for the complaint covers various rules: Rule 8.4 (Maintaining The Integrity Of The Profession); Rule 3.6 (Trial Publicity); and Rule 4.4 (Respect for the Rights of Third Persons).  As has often been the case, various legal experts quickly declared the charges well-founded and compelling. It seems that, when the target is Trump or his associates, any ethical and criminal charge is facially valid under unbounded interpretations of underlying provisions. No concern is raised for the impact of such charges on free speech or possible political abuse.

Mark Zaid declared that “no rational person” who heard diGenova calling for a person to be drawn and quartered and then shot “would have taken it as ‘jest.'” No rational person.  The Washington Post’s Randall Eliason seemed to dismiss that this was “just a colorful metaphor.” Professor Steve Vladeck declared “Lawyers who make these kinds of threats should be disbarred. Full stop.” These are both individual who have previously embraced sweeping criminal and ethics claims against Trump and others for the last four years, including (in Eliason’s case) interpretations long rejected by the Supreme Court.

Gillers emphasized Rule 8.4(b) and Rule 8.4(d) to apply to lawyer who “(b) Commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects” or “(d) Engage in conduct that seriously interferes with the administration of justice.”

Gillers correctly notes that “With regard to (b), it is not necessary that the lawyer have been prosecuted so long as the act is criminal and it adversely reflects on his ‘fitness.’”  The problem is that this is not a crime. It is a reckless statement. It is unclear how Gillers believes that diGenova would be charged with a crime for such a common hyperbolic statement but it would result in tens of millions of people being frog marched to the penitentiary. 

As a free speech advocate, I am particularly sensitive to his type of sweeping statement because I have long opposed cases of “violent speech.” Indeed, we previously discussed the issue of violent speech in a column where I argued against charging Michael Brown’s stepfather during the Ferguson rioting. I do not believe that such comments could satisfy the standard established by the Supreme Court in 1969 in Brandenburg v. Ohio as advocating imminent violence. Violent speech is protected under the Constitution absent such a threat of imminent violence. I have previously written about the dangerous line of criminalizing speech. I currently have a case in the federal court on this issue in United States v. Al-Timimi.

We have seen some extensions of ethics rules to include criticism of judges (here and here), a move that I have also opposed as a threat to free speech. Those cases however involved criticism of judges in actual cases in which the lawyers appeared.

The controversy over diGenova’s comment does not come close to any rationale theory of a criminal act.

Gillers also maintains diGenova’s comment “interfered with the administration of justice,” as stated in Rule 8.4(d).  The basis of that claim is that “seriously interferes with the work of the courts in addressing the campaign’s claim that the election was unfair.” That statement is equally unhinged legally and factually. Krebs is actually not a party and not expected to be a witness in these election challenges, which are largely now being litigated on the appellate levels.  Yet, Gillers insists that “a disciplinary body could find that diGenova’s threats against Krebs for saying the election was fair seriously interferes with the work of the courts in addressing the campaign’s claim that the election was unfair.”  If so, in my view, it would be an abusive use of the bar process to selectively target a lawyer for political reasons.

This type of controversy obviously involves a mix of concerns over legal ethics, criminal law, and free speech. In my view, these charges are an abuse of the bar process and should be condemned by all lawyers even as we condemn the comments of diGenova.