Lawyers face fallout from fueling Trump’s false claims of election fraud

Peter Stone
·5-min read

Prominent lawyers who helped fuel Donald Trump’s baseless charges of election fraud to try and thwart Joe Biden’s win, are now facing potentially serious legal and financial problems of their own tied to their aggressive echoing of Trump’s false election claims, say former Department of Justice lawyers and legal experts.

They include a federal investigation into the Capitol attack by a pro-Trump mob, possible disbarment and a defamation lawsuit.

Trump’s personal attorney Rudy Giuliani, who led Trump’s conspiratorial drive to overturn the election and gave an incendiary talk to the Trump rally right before the march on the Capitol began, could be ensnared in a federal probe of the attack and is facing a disbarment complaint in New York.

Pro-Trump lawyers Sidney Powell and Cleta Mitchell have, respectively, been hit with a defamation lawsuit for making false claims, and losing her law firm post after coming under scrutiny for her work promoting Trump’s false claims.

Related: Conspiracy-theorist lawyer Sidney Powell spotted again at White House

“I never saw allegations of misconduct that I think are as seriously unethical as the conduct of lawyers who have been propounding the false claims of President Trump,” said Mary McCord, who led the DoJ’s national security division at the end of the Obama administration until May 2017, and also served for six years on the DC Circuit’s Grievance Committee.

Giuliani, a former New York mayor and ex federal prosecutor who led Trump’s ad hoc legal team, seems to be the most endangered of Trump’s lawyers.

Without offering evidence, Giuliani told Trump’s Save America rally in DC before the Capitol attack that “I’m willing to stake my reputation, the president is willing to stake his reputation, on the fact that we’re going to find criminality there.” And he pointedly said, “Let’s have trial by combat.”.

The day after the mob attack which led to five deaths, Michael Sherwin, the acting US attorney for Washington DC, publicly launched an investigation into the riot, and signaled he would be looking at numerous participants including instigators which could implicate Trump and Giuliani for their roles in inciting the attack.

McCord said Giuliani seems to have crossed the legal red lines in advising Trump after Giuliani left a detailed voice message at the wrong office for Alabama’s newly elected senator Tommy Tuberville on 6 January about how to “slow down” the electoral college vote.

“Rudy Giulani’s repeated false statements about election fraud, encouragement of violence, and attempted call to Senator Tuberville are sufficient to predicate a criminal investigation,” said McCord.

Paul Pelletier, a former acting chief of DOJ’s fraud section, added: “I can’t imagine that the Biden DoJ wouldn’t prioritize the investigation and prosecution of the principals of this homegrown criminal attack on our democracy.”

Robert Costello, who Giuliani retained months ago in part to cope with another federal probe, said his client “hasn’t done anything legally wrong”, adding he is “not concerned at all” over the new inquiry.

Nonetheless, Giuliani last year reportedly had discussions with Trump about a presidential pardon that seems tied to another federal inquiry involving Giuliani in New York, which has led to criminal charges of illegal campaign donations and fraud against two GiulianI associates, Lev Parnas and Igor Frumin, who worked with him to dig up dirt on Biden and his son Hunter in Ukraine before the election.

“There’s no doubt he is seeking a pardon,” a former GOP House member said about Giuliani. “He’s publicly groveling at the feet of Donald Trump … and licking his boots.”

Further, Democrat New York state lawmaker Brad Hoylman has filed a complaint with a state appellate court seeking Giuliani’s disbarment over his “complicity” in the Capitol riot and “flagrant” violations of ethical standards of conduct.

Two House Democrats wrote last week to the New York State Bar Association requesting an investigation of Giuliani citing his call for “trial by combat”. Noting Giuliani’s role in the “violent uprising”, the bar group has begun an inquiry that could lead to his ouster.

Meanwhile Powell, who Trump consulted with a few times at the White House, was hit with a $1.3bn defamation lawsuit by Dominion Voting Systems for making false and reputation-damaging claims of nefarious foreign ties that helped Biden win.

Dominion executives have suggested that others with deeper pockets including lawyers and media companies who spread the fallacious claims may be sued, too.

Mitchell, a prominent conservative election lawyer, advised Trump behind the scenes for weeks and was on the 2 January call when Trump pleaded with, and threatened, the Georgia secretary of state to help him “find” 11,780 votes to overturn Biden’s win there. Mitchell’s law firm, Foley & Lardner, promptly launched an internal review of her role advising Trump and the call. Days later, she resigned from the firm.

New York University law professor Stephen Gillers noted that some Trump lawyers who filed more than 60 lawsuits that were overwhelmingly dismissed could be penalized for filing frivolous lawsuits.

“The stunning lack of success in the campaign’s challenges to vote counts and the apparent improper reasons for filing them suggest that the lawyers who brought these cases are at risk of monetary sanctions” for violating rules against frivolous lawsuits.

“Detroit and Michigan have asked a federal judge to impose such sanctions for cases filed there.”

Likewise, ex-prosecutors are incredulous over Trump’s legal team.

“This is the gang that can’t shoot straight, from filing things in the wrong court to making allegations without factual basis to slandering companies without grounds,” said Paul Rosenzweig, a former prosecutor and now senior fellow on national and cybersecurity issues at the nonpartisan R Street Institute.

“If you have an unfit president, he’s going to find enablers and hangers on – including lawyers – if he wants them,” said Robert Smith, a former associate judge on New York’s court of appeals who was appointed by ex-Republican governor George Pataki. “Trump is unfit for office and Giuliani should not be encouraging him. There is no cause so bad that you can’t find a worse lawyer to pursue it.”