Monday, February 15, 2021

Say Anything II: Top Ten Ethical Violations by Trump's Lawyers in the Second Impeachment (and One That Wasn't)

by Diane Klein

Have you ever heard of Sidney Carlton?  I hadn't, until very recently.  I had of course heard of Emmett Till, the 14 year old whose murder in 1955 by vicious White supremacists seared the nation's conscience and helped impel the Civil Rights Movement.  I had also heard of Roy Bryant and J.W. Milam, the men who killed him, brutally and unapologetically, then brazenly pleaded "not guilty" at trial, celebrated their acquittal - and then openly admitted their crime in Look magazine a year later, protected by double jeopardy.  But I hadn't heard of Sidney Carlton, one of their lawyers, the man who closed his argument by telling the all-White, all-male jury, "Your ancestors will turn over in their grave, and I'm sure every last Anglo-Saxon one of you has the courage to free these men."  Sure enough, they did, just over an hour later.

 [Left: Sidney Carlton confers with Milam and Bryan, 1955; right: the Emmett Till jury, 1955]

Sidney Carlton won an acquittal for men he surely knew were guilty of a horrible crime.  He did so by appealing, successfully and openly, to the most loathsome prejudices in the American character.  Under the circumstances, it didn't require brilliant lawyering.  As one of the team of Bryant and Milam's lawyers said, "After the jury was chosen, any first-year law student could have won the case."  Still, Carlton and his colleagues said what they said, and did what they did. They were the coachmen driving one of the most notorious miscarriages of justice in twentieth-century America.

Trump's impeachment defense team are little better, and their role in what we can only hope is the beginning of the end of Trump's outsized influence on American politics and American life ought at least to be an object lesson in the training of American lawyers.  Much of what they said infuriated and inflamed those who believe Trump should have been convicted for his role in the January 6 insurrection. Much of it struck many listeners as outrageously wrong and misleading, when not irrelevant or flat-out false.  Some may have found themselves wondering, Can lawyers do that?  Can they say anything at all, to try to get their client acquitted?  And does it make a difference if the client is being impeached, rather than charged with a crime?

After all, as law students and television watchers know, the guiltiest, most unrepentant criminal defendant is entitled under our Constitution to competent legal representation.  So held the U.S. Supreme Court in Gideon v. Wainwright in 1963. When a person's liberty is at stake, our Constitution guarantees any accused individual at least this form of protection against the State: a legally well-informed professional defense.  To that end, the rules of professional responsibility are slightly different for those representing criminal defendants compared to other civil litigants. 

For example, ABA Model Rule 3.1 (adopted verbatim or nearly so by most jurisdictions in the country), provides as follows:

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration may nevertheless so defend the proceeding as to require that every element of the case be established.

This rule, called "Meritorious Claims & Contentions," is a rule governing the lawyer as advocate, and it governs, by limiting, what lawyers can and cannot say on behalf of their clients.  Lawyers are permitted only to say that which has a non-frivolous "basis in law and fact."   They cannot just "say anything."

A lawyer who wishes to argue, in good faith, that the law should be reversed or understood differently may of course do so.  But the requirement that assertions or denials of fact have a non-frivolous basis has no such general good-faith exception.  A further special rule applies to defending a criminal case.  In that situation, the lawyer can put the prosecution to its proof.  Put another way, even if all the facts are on the State's side (and thus any denial is "frivolous"), the burden is on the State to prove every element of the crime, and the defense lawyer may controvert those facts. Note that this rule does not permit any lawyer, on any side of any proceeding, to make baseless affirmative assertions of fact or law.

Of course, despite the language of "conviction" and "acquittal," and votes of "guilty" or "not guilty," an impeachment of a federal official is not a criminal proceeding.  Conviction risks no loss of liberty.  As obvious as this point is, it is worth reiterating.  An impeachment, whether it might result in removal from office or future disqualification, is not "a proceeding that could result in incarceration."  As a result, the Constitutional protections enjoyed by a criminal defendant do not apply, and the lawyer does not enjoy the special indulgence of the rules of professional responsibility. Knowing this is among the many things that fall within the professional competence of lawyers.

Which brings us to the team of attorneys who served as Trump's representatives in the Senate trial: a clutch of lawyers from the Philadelphia firm of van der Veen, O'Neill, Hartshorn, and Levin (slogan: "The V is for Victory"), including Bruce Castor, Jr. and Michael van der Veen himself; and Alabama lawyer David Schoen, whose prior clients include Roger Stone and the late Jeffrey Epstein.  How are we to assess their lawyering?  At one level, it makes no sense to ask whether they did a good job.  Like Sidney Carlton's clients Roy Bryant and J.W. Milam, their client was acquitted, despite overwhelming evidence of factual guilt.  After all, as even Minority Leader Sen. Mitch McConnell admitted, "There is no question that President Trump is practically and morally responsible for provoking the events of that day."  But Sen. McConnell and forty-two of his Republican colleagues voted to acquit.  

[Left: David Schoen, Bruce Castor, Jr., Michael van der Veen; right: some of the jurors]

The final vote, 57-43 in favor of conviction, including seven Republicans, fell far short, despite coming closer than many had predicted. Castor, Schoen, and van der Veen, et al. won.  Their client, the former President, will have no grounds to sue them for malpractice, though he notoriously doesn't pay his legal bills regardless.

This does not mean, however, that they are beyond reproach or sanction.  (And not of this vigilante variety:)

In representing Trump before the Senate, each of his lawyers arguably violated one or more of the rules of professional conduct, rules applicable to lawyers regardless of whom they represent, the nature of the proceeding, or the outcome they achieve for their client.  If so, they would each be subject to discipline in their respective jurisdictions for their actions.  Lawyers cannot, in fact, "say anything" on behalf of their clients.  

In addition to the limits imposed by Rule 3.1, a further constraint on potentially dishonest lawyer speech is ABA Model Rule 3.3, "Candor Toward the Tribunal."  It states, in pertinent part,

(a) A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or (3) offer evidence that the lawyer knows to be false.  If a lawyer, the lawyer's client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false. (b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.

This Rule goes considerably further than Rule 3.1.  While MR 3.3(a)(1) is similar to MR 3.1, it adds a duty to correct false statements "previously made."  It imposes a forward-looking duty of "remedial measures, including, if necessary, disclosure" of any false evidence.  This duty applies not only to the lawyer's own statements (perhaps made unwittingly in error), and those of the client or a witness, but extends to any person whose "criminal or fraudulent conduct [is] related to the proceeding."

A handful of other rules also apply to the things lawyers may say and do while representing their clients.

Model Rule 3.4(e), "Fairness to Opposing Party & Counsel," provides that a lawyer shall not, 

in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused.

This is sometimes referred to as the rule against "vouching," meaning, the lawyer bringing his or her own credibility to bear on the evidence.  For example, a lawyer is not permitted to say about a witness or a defendant, "I've known him for ten years, and he's never lied to me!" (even if it's true).  A statement like this amounts to the lawyer testifying, without being under oath or subject to cross-examination.  Such statements confuse the role of lawyer and witness, and have the potential to influence the fact-finder in an unfair and improper way. 

Model Rule 8.4, "Maintaining the Integrity of the Profession," provides, in pertinent part, that it is professional misconduct for a lawyer to "(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation."  This catch-all Rule is intended to cover forms of dishonesty that somehow fall between the cracks of MR 3.1 and MR 3.3.

And finally, "Competence" (Model Rule 1.1).  This rule governing the attorney-client relationship simply states that, "A lawyer shall provide competent representation to a client.  Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation."  Like everyone, lawyers are allowed to make mistakes.  But there are mistakes that show a level of legal incompetence inconsistent with the lawyer's most basic obligations. 

So let's dive in.  In what follows, I have intentionally avoided statements by lawyers interpreting or spinning contested states of facts, and also what most would regard (at worst) as "puffery."  When van der Veen says, "Despite all of the video played, at no point in their presentation did you hear the House managers play a single example of Mr. Trump urging anyone to engage in violence of any kind.  At no point did you hear anything that could ever possibly be construed as Mr. Trump encouraging or sanctioning an insurrection," intelligent and attentive listeners may roll their eyes, but this probably falls more or less within the bounds of zealous advocacy, a strained and one-sided interpretation of what was said, but an interpretation nonetheless.

Nor will I  analyze statements like Castor's claim to the Senators that "not a single one of you ever thought you would be doing a second impeachment inside of 13 months," which is probably false, but immaterial, or similarly immaterial (albeit embarrassing) mistakes of fact, like Castor's apparent belief that ancient Athens had both "representative democracy" and a "Senate."  I have also not applied Rule 3.4(e) too aggressively where relevance is concerned.  A Senate impeachment is such an evidentiary free-for-all that the bounds of relevance are not easy to draw.  For example, whether the 11-minute video montage of Democrats using the word "fight" is "relevant" depends on whether one understands the House managers' case to depend importantly simply upon Trump's use of the word "fight" in his January 6 speech.

This list is not exhaustive.

Bruce Castor, Jr.: false statements of law and fact

1. The "pre-Revolutionary" British impeachment that wasn't

Castor's opening statement was such an embarrassingly shambolic mess it apparently even enraged Trump, whose standards for lawyers are shockingly low (viz. Lin Wood, Sidney Powell, Rudy Giuliani).  It might seem unfair to pick out any particular legal solecism, but some of these howlers should not go unremarked.

In their opening presentation, the House managers addressed the question of the Senate's power to try someone no longer in office.  They explored the reliance of the framers of the Constitution on contemporary impeachments in England, especially of Warren Hastings, of which the framers, as lawyers, were surely aware.

In "response," Castor said,

I can't believe these fellas are quoting what happened pre-Revolution as though that's somehow a [of?] value to us. We left the British system.  If we're really going to use pre-Revolutionary history in Great Britain, then the precedent is we have a parliament and we have a king.  Is that the precedent that we are headed for?

This passage betrays such yawning, gaping ignorance of law and history it is difficult to take its measure.  First off, it's factually wrong.  The impeachment of Warren Hastings began in 1787; it is not "pre-Revolutionary."  It appears Castor is either ignorant of the Hastings impeachment or unaware of the fact that more than a decade passed between the American Revolution and the adoption of the U.S. Constitution. Perhaps a common mistake among laypeople - but among lawyers?  Among lawyers making Constitutional arguments before the U.S. Senate?  But, equally important, it demonstrates near-complete unawareness of the points of continuity in the Anglo-American legal tradition, including in our Constitutional law.  Just one example: the right to a jury trial in a civil case, enshrined in the 7th Amendment to the U.S. Constitution, is preserved in our law "as it existed under the English common law when the amendment was adopted [1791]." The state of English law, both before and after the Revolution, thus directly affects U.S. Constitutional law.  Similarly, the so-called "probate exception" that bars federal courts from hearing probate cases under its diversity jurisdiction rests upon "the scope of English chancery jurisdiction in 1789."

These points are elementary.  It is beyond incompetent to say what Castor did in presenting an argument about the scope of the Constitutional power of impeachment.  As an "argument" about Constitutional law, "We left the British system" (while in some sense factually true) has no basis in law that is not frivolous. Pennsylvania, where Castor practices, has adopted the Model Rules quoted above.  

2. The non-existent "drop off" in rejected Georgia ballots (in the call that wasn't to Pittsburgh Steelers QB Ben Roethlisberger)

Days later, Castor sought to address Trump's conduct related to his phone call to the Georgia Secretary of State.  While Castor's confusion of Georgia Secretary of State Brad Raffensperger with Pittsburgh Steelers quarterback Ben Roethlisberger grabbed headlines, the real problem in his discussion of Trump's phone call lay elsewhere.  As everyone who has heard the tape knows, Trump expressed his need to "find" 11,780 votes, conduct for which he is being criminally investigated in Georgia.  Castor argued (implausibly) that Trump's statement was "solely related to his concerns with the inexplicable dramatic drop in Georgia's ballot rejection rates."  Since there was no "dramatic drop," and thus no basis in fact to assert one, a reference to it is a false statement of fact.  Whether the claim that Trump's statement was "related" (much less "solely related") to some imaginary "concern" with a non-existent state of facts, is itself also probably though perhaps unprovably false.  The false statement about the ballot rejection rates, uncorrected, violates both MR 3.1 and 3.3(a). 

Michael van der Veen: false statements of fact

3.    The non-existent Antifa arrestee

Van der Veen claimed, without naming names or providing any substantiation, that "one of the first people arrested [in the Capitol attack] was a leader of Antifa."  There is no way to know for sure whom he was talking about; the only person who approximately fits the bill, a Utah man named John Sullivan, denied any Antifa connection.  To the extent that Antifa has "leaders," the arrested man is not one of them. 

Newsweek called this statement "False."  (Politifact rated it "mostly false.")  According to Newsweek, "None of the 230 people arrested for alleged participation in the Capitol attacks were linked to any left-wing movement.  There is no evidence that Sullivan was a member of Antifa, Black Lives Matter or any other left-leaning group, especially [sic] a 'leader' of Antifa."

Van der Veen's statement, uncorrected, thus violates MR 3.1 and MR 3.3(a).

4.    The denial of evidence of 2016 election hacking

Van der Veen also stated that, "The entire Democratic Party and national news media spent the last four years repeating without any evidence that the 2016 election had been hacked."  The first part of the claim can be dismissed as hyperbole, but the phrase "without any evidence" is patently false. Whether relevant to the second impeachment of Trump or not, as David Corn of Mother Jones and others have explained, the existence of an abundance of evidence of election interference in 2016 is indisputable.  

This statement, uncorrected, violates MR 3.1 and MR 3.3(a).

5.    The irrelevant (non-lethal) sheriffs' deputy ambush in Los Angeles 

In his closing argument, after referring to protests "throughout the summer," van der Veen said, "As we all know, two sheriff's deputies in Los Angeles were ambushed and shot at point blank range." This statement was clearly intended to convey that this happened in the midst of a BLM protest, or that the perpetrators were protesters.  Entirely false.  The event happened on September 12, 2020, and was not connected to any protest.  (A suspect was arrested a few weeks later.) Moreover, the statement that they were shot "at point-blank range," while perhaps technically true, implies that they were killed - which they were not.  This may not quite be a false statement of fact, though in context, I would argue that it is.  But if not covered by MR 3.1, it should be encompassed by MR 8.4(c)'s prohibition on "conduct involving...misrepresentation."

6.    Denying Trump knew Pence was in danger when Trump tweeted about Pence's lack of "courage"

During the question and answer period, Sen. Mitt Romney asked (through the clerk), "When President Trump sent the disparaging tweet at 2:24 p.m. regarding Vice President Pence, was he aware that the vice president had been removed from the Senate by the Secret Service for his safety?"  Sen. Tommie Tuberville has said (publicly albeit not under oath) that he was on the phone with Trump prior to that time, and said, "Mr. President, they've taken the vice president out. They want me to get off the phone, I gotta go" (or words closely to that effect).  After objecting to the question, van der Veen said that Trump did not know.  "The answer is no.  At no point was the President informed that the Vice President was in any danger."  Sources close to Pence also have said (to media, not under oath) that this statement was false.

Van der Veen referred to evidence of what Sen. Tuberville had said as "hearsay."  Van der Veen is technically correct - barely.  If Sen. Tuberville were actually testifying, his statement about what he said on a prior occasion to Trump would not be classified as hearsay.  His recollection of events was not offered for its truth (that is, whether Pence had actually been moved somewhere), but to tell us something about what Trump knew or believed.  (If offered for its truth, it still probably qualifies for an exception, as a "present sense impression" or "excited utterance.")  Sen. Tuberville would almost certainly be able to testify to what he said.  But because it was not Tuberville himself, but the House managers, offering his statement, it is hearsay - now, being offered for the truth of Tuberville's having made such a statement.  Hypertechnical, perhaps (especially in a proceeding without formal rules of evidence!) - but the arguable correctness of his statement of law cannot obscure the falsehood of his statement of fact, on the evidence presented.  Van der Veen continued, "There is nothing at all in the record on this point because the House failed to do even a minimum amount of due diligence."  Apart from the fact that what Trump knew, when he knew it, and what he did are all questions one might assume van der Veen had put to his own client, and about which Trump was invited to testify, van der Veen seems to have forgotten where he is.  In helping himself to the criminal defense counsel's right to force the prosecution to prove its case, he then makes an unwarranted affirmative and almost surely false statement: that Trump did not know.  Again, while it might seem hypertechnical, there is actually a world of difference between a lawyer saying "There is no evidence that the President was informed" (strained, perhaps, in this setting, but permissible if true) and that same lawyer saying "At no point was the President informed," that is, the factual claim that Trump did not know Pence was in danger.

If that claim is false, it violated MR 3.1 to say it, and MR 3.3(a) not to correct it.

7.    Allegations of "doctored"  and "fabricated" evidence

In his closing and in interviews after the acquittal, van der Veen continued to repeat that the House managers "doctored evidence."  The specific details focus on a recreated tweet, re-tweeted by Trump.  The recreated graphic included a blue "check mark," a symbol used by Twitter for "verified" accounts.  This check mark appears in the graphic; it was not part of the actual original tweet. No one is suggesting either that the original tweet did not exist, or that Trump did not in fact re-tweet it.  Thus, for van der Veen to say, about this, "They fabricated evidence. They made it up." or that they "created false representations [plural] of tweets," is a gross overstatement, at best.  It is also not clear that the underlying misrepresentation (if it is that), that the original tweet came from a verified account, is in any way material to anything.  Unlike Trump's counsel, when confronted with the issue, the House managers acknowledged the mistake, and remediated it. 

8.    Van der Veen refuses to vouch

On the other hand, one of the most commented-upon exchanges involving van der Veen was actually  professionally proper, even if delivered in a less-than-winning way.

Sen. Bernie Sanders asked a question one reporter called "the most simple and critical question of the day," "Are the prosecutors right when they claim that Trump was telling a big lie, or in your judgment did Trump actually win the election?"  In asking this, Sen. Sanders was actually asking van der Veen to behave unethically. Many viewers eagerly awaited the response from Trump's counsel.  But lawyer van der Veen refused to answer, saying, "my judgment is irrelevant."  He was right. 

Pennsylvania's version of this rule, Pennsylvania Rule of Professional Conduct 3.4(c), provides that a lawyer shall not, "when appearing before a tribunal, assert the lawyer's personal opinion as to the justness of a cause, as to the credibility of a witness, as to the culpability of a civil litigant, or as to the guilt or innocence of an accused."  If van der Veen seemed taken aback by the question, that is because it was so improper.  Some in the media tried to make hay from this, claiming the lawyer "refuse[d] to acknowledge Trump's defeat" or "dodged" the question.

Van der Veen's response, if not his manner, was perfectly appropriate, and Sanders' riposte, "You represent the President of the United States!" was (at best) a non sequitur.  The lawyer's own judgment about who won the 2020 election or whether the House managers are "right" ("the justness of [their] cause") - or indeed, any matter of fact at issue in a trial - is not only irrelevant but would be improper to offer.  The question was also ill-formed in another way. It turned on a misuse of the law of the excluded middle (the rule of logic holding that every proposition is either true or false).  Sanders' question did not present a true choice, in which one or the other disjunctive clause must be true.  It could be that Trump did not win, but that he believes or believed he had, and so was not telling a lie (of any size) in saying otherwise.  Trying to force someone to choose between two alternatives which do not actually exhaust the possibilities is, at best, manipulative.  Trying to make a lawyer vouch and criticizing him when he won't is wholly improper.  Van der Veen behaved professionally when he refused to fall into that trap, even if it left him looking (to some) like he was "dodging" this "gotcha!" question.

David Schoen: false statements of material fact

Schoen is admitted in Alabama, which does not have the first part of MR 3.1 quoted above.  Instead, the first part of Alabama Rule 3.1 is

In his representation of a client, a lawyer shall not file a suit, assert a position, conduct a defense, delay a trial, or take other action on behalf of the lawyer's client when the lawyer knows or when it is obvious that such action would serve merely to harass or maliciously injure another.  

This Rule is importantly different from the Model Rule, because it does not require a non-frivolous basis in law or fact behind any assertion.  In a Senate impeachment trial, the most ridiculous assertions on Trump's behalf would not obviously transgress against this rule, because they do not "harass" or "maliciously injure" anyone in particular.

However, Alabama's Rule 3.3 rides to the rescue here.  It is simpler than the current ABA Rule, stating only,

(a) A lawyer shall not knowingly: (1) Make a false statement of material fact or law to a tribunal; (2) Fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client; or (3) Offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures. 

However, the Comments to the Rule state plainly that "an advocate does not vouch for the evidence submitted in a cause" and that "an assertion purporting to be on the lawyer's own knowledge, as in an affidavit by the lawyer or in a statement in open court, may properly be made only when the lawyer knows the assertion is true or believes it to be true on the basis of a reasonably diligent inquiry. There are circumstances where failure to make a disclosure is the equivalent of an affirmative misrepresentation."  Finally, the Alabama Comments to Rule 3.3 state, "Legal argument based on a knowingly false representation of law constitutes dishonesty toward the tribunal."

9.    When Trump's counsel received the House managers' video

Schoen claimed that the videos shown by the House managers were not made available to him until "2:23pm" February 9, 2021, the second day of the trial. If, in fact, Trump's team received the videos in advance, as the rules required and as at least one source has confirmed, Schoen's statement is false. Other sources are prepared to say, flat out, that Schoen "lied."

On February 12, 2021, attorney Norm Ornstein tweeted, "So it turns out Schoen lied about having access to the House managers' videos. Suspend his law license. This is a grave offense."

Ornstein may be overstating things.  Is this a material fact?  To the extent that this claim was part of a larger argument about an alleged deprivation of due process, it might be material, and if so, it would violate Alabama Rule 3.3(a), as would failure to correct it.

10.    Describing Trump's second and third tweets after he learned of the incursion as "first"

Similarly, Schoen's statement about "Trump's first two tweets" after the rioters broke into the Capitol is a false statement of fact.  Not only is the statement plainly false, because another tweet preceded those two, making them second and third, not first - but this characterization appears calculated to create the false impression that an instruction to be peaceful or safe was the "first" thing Trump communicated to his followers when he learned of the crisis, when the reality is quite otherwise: the first tweet was the derogatory tweet about Pence and his lack of "courage." So it is a false statement of fact to describe these two as "first," and misleading by omission of what actually did come first. 

Again, the question is whether it is material. The question of how Trump responded when he learned that Pence was in danger goes to the core of the determination of dereliction, and certainly bears upon incitement.  The assertion that the "first" tweets were about peace and safety is thus potentially at least a false statement of material fact, violating MR 3.1; the failure to correct this false statement further violates MR 3.3(a).

All of Trump's lawyers

11.    Lying to the Senate

On February 12, 2021, historian Michael Beschloss tweeted, "What is penalty for lawyer lying to U.S. Senate?"  Well, it's a federal felony (for anyone, not just lawyers, but lawyers are not exempt), carrying a sentence of up to five to eight years.  And this is regardless of whether the person is a witness or testifying under oath (perjury).  (So maybe that will help out Castor, who seemed blissfully unaware of Title 18, Section 1001 of the U.S. Code when he said, "I don't know if we're under oath here.")  Yes, Mr. Castor, lying to the Senate is a crime; committing this crime would also make an attorney subject to discipline under MR 8.4(b).  Not knowing this also approaches the kind of incompetence sanctionable under MR 1.1.

Each of the statements already analyzed as a false statement of law or fact thus potentially also exposes the speaker to criminal liability, and to further discipline under MR 8.4(b).

It is a bedrock principle of the legal profession that it is possible to defend a client guilty of terrible crimes in a way that is not itself disreputable.  The role of criminal defense attorneys in our adversarial system gives them a wide, but not unlimited, scope within which they may mount a defense.  But that does not include making false and baseless statements of fact or statements that demonstrate grave deficiencies in the speaker's basic grasp of the law. It does not include making false statements, designed to create a misleading picture of events - and then doubling down on them, rather than correcting them before the tribunal to which candor is owed.  

For all its incoherence, puffery, faux-indignation, legal know-nothing-ism, both-sides-ism, and what-about-ism, nothing said by Castor, van der Veen, and Schoen approaches in sheer repugnance the statements made by Sidney Carlton in his defense of Bryant and Milam. Still, the role played by Castor, Schoen, and van der Veen is hardly less discreditable.  All are a disgrace to the profession - both for what they did, and for how they did it.