Monday, January 18, 2021

Rudy Giuliani's (Ridiculous) "True Enough" Defense of Trump

by Michael C. Dorf

Dr. Martin Luther King, Jr., was born on January 15, 1929. Today is the official annual day of recognition of his birth. In past years, I have sometimes posted MLK Day essays on a theme related to Dr. King's life and work. I considered doing so today. Following a year that saw both massive protests for racial justice and political violence that included expressly racist symbols and language, there would certainly be no shortage of material. But I find myself too unsettled in my thoughts about such matters to do so today (although what I say will touch upon race and racism in one particular). I am confident that interested readers will find no shortage of such reflections elsewhere.

Accordingly, and with apologies for the fact that doing so does not quite match the occasion, I offer some commentary on the latest nonsense to ooze forth from the brain of the man who was once "America's Mayor."

Yesterday the NY Times reported that Rudy Giuliani was trying to peddle presidential pardons for $2 million a piece. According to the Times story, Giuliani denied this "characterization," which could simply mean that the invoices his office prepared say "for legal services" rather than "bribe for pardon." Whatever the truth about this alleged Giuliani/Trump corruption, there can be little doubt about the latest piece of evidence that Giuliani is well beyond his sell-by date. Over the weekend, Giuliani said the following about how he plans to defend Donald Trump in his second Senate impeachment trial:

They basically claimed that anytime [Trump] says voter fraud, voter fraud -- or I do, or anybody else -- we're inciting to violence; that those words are fighting words because it's totally untrue.  Well, if you can prove that it's true, or at least true enough so it's a legitimate viewpoint, then they are no longer fighting words.

Let's address the many errors in that statement one at a time.

(1) "They"--presumably meaning the majority of members of the House of Representatives who voted for the latest article of impeachment--did not claim that the mere allegation of voter fraud amounted to incitement. After all, the House didn't impeach Trump this second time for each of the prior occasions on which he baselessly alleged voter fraud. Trump was impeached based on his lighting the match on January 6. It's true that the article of impeachment describes Trump's false claims, but, as I explain more fully below in (3)(b), Trump's having committed the impeachable offense of incitement of insurrection does not depend on his claims of voter fraud being false.

(2) As a matter of fact, however, the claims of voter fraud are false, as numerous judges and other government officials--many of them Republicans and even Trump appointees--have found.

(3) Nor are the claims of voter fraud "true enough." Now you might think that the very concept of "true enough" is bizarre--that it depends on something like Giuliani's famously postmodernist proclamation that "truth isn't truth." That's not necessarily right, however. By "true enough," I suspect Giuliani means that the evidence of voter fraud, while not necessarily compelling, is sufficiently suggestive that a reasonable person could believe it. If that were so, Giuliani is saying, then Trump's claims of voter fraud were made in good faith.

Nonetheless, there are two very serious difficulties with the "true enough" defense:

(a) The voter fraud claims are not merely false; they're very clearly false, thus falling well below any lower bar of "true enough."

Despite Trump's public allegations of fraud, in case after case, lawyers arguing for Trump in court told the judges that they were not alleging fraud, instead making technical challenges to the procedures by which rules governing voting were adopted or modified, or to such things as who could observe ballot processing under what conditions. The reason the Trump lawyers refused to allege fraud is that they knew that they could not do so in good faith--that is, they knew they faced the possibility of professional penalties if they alleged fraud. Lawyers do not face sanctions for making allegations that were reasonable when made but turn out to be false once all the evidence is gathered and weighed. They do, however, face sanctions for making allegations that are not supported by enough evidence that one could reasonably believe them.

For example, Federal Rule of Civil Procedure 11 provides that for lawyers to avoid sanctions, they must present only those claims for which "the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery." "Evidentiary support" does not mean definitive proof. It means essentially what Giuliani meant by "true enough." The fact that Trump's lawyers did not allege fraud (much less offer any evidence of fraud) in the dozens of court challenges they brought to the election shows that they themselves knew that Trump's claims of fraud were not only not true, but not even "true enough."

And to be clear, those lawyers who declined to allege fraud in court include Giuliani, who, despite his public allegations of fraud, said this when questioned by a federal judge in Pennsylvania: "This is not a fraud case." So no, Trump's claims of voter fraud are not "true enough."

(b) But suppose they were. Suppose that Trump's claims of voter fraud were true enough. Or even suppose that they were true. So what? That would not be relevant to the charge of incitement.

Suppose that there is smoking-gun evidence that Jones, an African American man, shot and killed Smith, a white man. Jones is arrested and admits that he shot Smith, but pleads not guilty on the ground that he did so in self-defense. He is held in the county jail. Unsatisfied with the pace of the judicial system, a local KKK leader addresses a racist mob that has assembled in the public square. He speaks for an hour, during which time he repeatedly says, truthfully, "Jones killed Smith," peppering his remarks with racial epithets and expressions of white supremacy. He urges his followers to be "tough" and "fight" or they "won't have a county." Building to a crescendo, he tells his followers to march on the jail and "take back our county." They do so and lynch Jones.

In that example, the Klan leader has committed incitement, which the First Amendment does not protect. It doesn't matter that some of what he said to rile up the mob was true. Truth isn't a defense to a charge of incitement.

To be sure, truth is a defense to a civil action for defamation. Where the plaintiff is a public official or a public figure, "true enough" is also a defense to defamation, as that is roughly what is meant when the Supreme Court in NY Times v. Sullivan and subsequent cases held that for such plaintiffs to prevail they must show that the defendant knew that the reputation-damaging statement at issue was false or acted with reckless disregard for the truth. If a writer or publisher working on a story in good faith has reason to believe a statement about a public official or public figure is true even though it turns out to be false, the plaintiff public official or figure cannot recover. We could say that in such a defamation case, true enough is good enough.

To state the obvious, however, incitement isn't defamation.

(4) Further evidence of Giuliani's dubious expertise (as if any were needed) can be found in his conflation of "fighting words" and incitement. Both are canonically invoked as instances of unprotected speech, but they concern different paradigms. One incites a mob by successfully urging its members to commit violence against third parties. Fighting words by contrast, are "personally abusive epithets" that, as the Supreme Court put it in a 1971 case, "are inherently likely to provoke violent reaction." When I teach this subject, I explain to students that "get him boys!" might be incitement, whereas "care to step outside, asshole?" might be fighting words.

I suppose one could excuse Giuliani for confusing the two categories, because the canonical fighting-words case, Chaplinsky v. New Hampshire (1942), includes as an example those words that "tend to incite an immediate breach of the peace," so if one goes back far enough one can find overlap between the two categories. However, despite the fact that the Supreme Court continues to cite the fighting-words doctrine, there are questions about whether it remains good law. The best that one can say for Giuliani with respect to his substitution of the term "fighting words" for incitement is that it does not prove he was an incompetent attorney when he graduated from law school in 1968. At that time, the categories of fighting words and incitement were somewhat interchangeable.

Of course, it's hardly a glowing recommendation to say of an attorney that he probably wasn't incompetent over fifty years ago.

(5) Giuliani's questionable competence suggests that Trump would be ill-advised to employ him for the Senate impeachment trial. In addition, Giuliani would be foolish to take the job--assuming it is actually offered and that he gets a retainer so he can avoid Trump stiffing him.

Giuliani was a witness to Trump's incitement. Indeed, Giuliani's statement at the January 6 rally--"let's have trial by combat"--is pretty clearly incitement itself. That fact doesn't create a conflict of interest in the colloquial sense of how we use that concept. Giuliani's interest in self-vindication pretty clearly aligns with Trump's interest. Nonetheless, it raises a serious question of professional responsibility.

Rule 3.7 of the rules of professional conduct governing lawyers admitted to practice in New York State provides that, in general, "a lawyer shall not act as advocate before a tribunal in a matter in which the lawyer is likely to be a witness on a significant issue of fact." The rule does not distinguish between witnesses whose interests are aligned with or opposed to those of the client. One point of the rule is to avoid role confusion. A good lawyer takes an attitude of sympathetic detachment--identifying sufficiently with the client's predicament to advocate zealously for the client, while maintaining sufficient detachment to give objectively sound counsel and representation. A lawyer defending a client on charges that apply with roughly equal force to the lawyer will have little difficulty with the sympathy part but will often fail at the detachment part.

The Senate is not a court of New York or any other jurisdiction, but it likely counts as the sort of "tribunal" to which New York's disciplinary rules apply. Giuliani already faces the possibility of disbarment for his recent discreditable conduct. Adding another potential violation is hardly in his interest. And even if neither the New York rules nor the very similar rules of other jurisdictions apply to a lawyer's appearance before the Senate in an impeachment trial, the policies underlying the rules do.

As one who hopes to see Trump convicted and disqualified from holding further office, I cannot say that I am dismayed at the prospect of Trump being represented by someone who is in way over his head. Moreover, Giuliani's representation of Trump in his Senate impeachment trial would be quite an amusing spectacle. That said, if Trump is listening to any rational advisers anymore (a big if), and if Trump can find any competent attorney to represent him instead (another big if), he will sideline Rudy.

1 comment:

Joe said...

"In this year alone, voters from the State of Georgia made history by electing two new senators, Jon Ossoff and Rev. Raphael Warnock, to replace the state’s incumbent office holders. Rev. Warnock, like Dr. King, is a graduate of Morehouse College, a small liberal arts school known for infusing moral leadership in every aspect of its curriculum. He has also followed Dr. King’s path in pastoring the historic Ebenezer Baptist Church in Atlanta."