Editor’s Note: Jennifer Rodgers is a former federal prosecutor, Adjunct Professor of Clinical Law at NYU School of Law, Lecturer-in-Law at Columbia Law School, and a CNN legal analyst. The opinions expressed here are her own. Read more opinion at CNN.
A key component of President Donald Trump’s ongoing attempt to overturn the results of the 2020 presidential election has been to try to use the courts to invalidate Joe Biden’s election victories in enough states to win the Electoral College. From the outset, this seemed unlikely given the margins of victory and the number of states required to change the result, but the President has remained undaunted – on Twitter at least – by the steep uphill battle, and presses ahead.
His lawyers, however, have by and large turned around to slink back down the slope by withdrawing from his election litigation. How has this happened, you ask? It’s a story in three acts, and it carries lessons for lawyers who wish to maintain their professional credibility, to say nothing of their law licenses.
Act One kicks off with the inevitable Presidential Twitter rants, repeated by Trump’s mouthpieces – including some of his legal advisers – on right-wing news outlets, claiming without evidence that fraud was rampant in the 2020 election, that Democrats are trying to steal the White House, and that when only “legal” votes are counted, Trump will be declared the winner.
The lawyers representing the Trump Campaign really got to work in Act Two, dutifully filing lawsuits in the chosen battleground states in complaints that set forth various legal claims about this supposedly rampant fraud. These filings have been roundly panned by legal experts as being full of generalized and false fraud claims that are untethered to the law and internally inconsistent.
Almost immediately, challenges to the complaints were filed, which brings us to Act Three, where things get really interesting. Once a motion to dismiss a complaint is filed, the lawyers have to show up in court to argue the matter. And by court I mean actual, real-life court, not “reality” TV shows or the so-called court of public opinion.
Lawyers arguing before a legal tribunal must be truthful in their representations to the court. As explained by the American Bar Association, lawyers have a “special duty as officers of the court” to be truthful and to “avoid conduct that undermines the integrity of the adjudicative process.” Professional responsibility rules in all 50 states – which license lawyers and handle any disciplinary proceedings – mirror these requirements. And when it comes to the kinds of cases filed here by the Trump Campaign, generalized allegations of “fraud” or “irregularities” or “lack of access,” do not suffice for pleadings to survive; the law demands particularity and plausibility in the allegations.
So when Team Trump lawyers actually stood before judges who started asking pointed questions about the allegations and the proof, in case after case, the sweeping claims of fraud turned into something very different, with cautious lawyers furiously backtracking. And the proceedings ended, in case after case, with the allegations being dismissed. As the losses started to mount, Trump’s lawyers not only withdrew from the unsupported and highly questionable positions in their legal papers, many of them fled the cases themselves.
Notwithstanding the attempt to save face by Trump legal adviser Jenna Ellis, it is not at all routine for lawyers to ask for leave to withdraw mere days after filing papers. Nor is it a good sign to have to amend your complaint to remove claims because of a lack of evidence, or to drop cases altogether, but that is what happened once Trump’s lawyers had to face the music about whether they stood behind the false allegations.
Notwithstanding the self-preservation demonstrated by most Trump lawyers, a different path emerged for Rudy Giuliani in Tuesday’s hearing in Donald J. Trump for President, Inc. . Pennsylvania Secretary of State Kathy Boockvar, the case that is looking like Team Trump’s last stand. In its short life of less than 10 days, this case has involved two versions of the relevant legal claims, and multiple sets of lawyers. In quick succession, the law firm Porter Wright Morris & Arthur withdrew, as did two other lawyers. A third attempted to withdraw, but was rebuffed. The team then announced that it would add Marc Scaringi to lead the effort, despite his admission shortly after the election that the lawsuits challenging Biden’s win were unlikely to succeed. But in the end the lawyer who walked into court on Tuesday to argue the case was Giuliani.
The question on everyone’s mind was once Giuliani was actually in court: would he stick to his well-worn script of spewing meritless allegations as he has done so many times on television and at press conferences? Or would he answer truthfully when confronted by the presiding judge about the lack of evidence and legal support for his claims?
The answer is he did a bit of both. As should be a surprise to absolutely no one, at the outset of the hearing when allowed to speak uninterrupted, Rudy did Rudy, ranting generally about stolen elections, fraud, the “dishonesty” of Philadelphia, and ballots illegally cast in a freewheeling presentation supported by no facts and having virtually nothing to do with the amended complaint that had been filed by his colleagues. When questioned, however, about specific allegations, governing legal standards, and individual pieces of evidence, Giuliani was forced to back down in crucial ways, in part because he possessed no relevant evidence supporting his claims, and in part because he appeared unprepared and lacked command of the law and governing standards.
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As we have seen, most of Trump’s lawyers didn’t want their professional reputations sullied by making claims deemed to be false. Most of these lawyers had no interest in being referred to their bar’s grievance committee for possible discipline or even disbarment. Of course, Giuliani is not most lawyers, and he skated much closer to the ethics line than the rest of Team Trump was willing to go, in large part because of a very patient judge who was willing to let him speak unimpeded before honing in on the relevant, and fatal, flaws in his argument.
It looks like this case, like the others, could be a loss for Trump. But I hope that Tuesday’s hearing at least serves as a teachable moment for Giuliani – who reportedly has not appeared in court in decades – reminding him that fiery rhetoric alone does not win cases and in fact could violate a lawyer’s oath, and that this may temper his actions going forward. I won’t hold my breath.