Lawyers Lying in and out of Court

 by Michael C. Dorf

At the risk of burying the lede, I'll begin with a few words about my latest Verdict column. It critiques the claim by Justice Alito last month (publicized in the report of an interview of him described in the Wall Street Journal) that Congress lacks the power to regulate the Supreme Court. As I explain in the column, taken literally, the claim is obviously false, because Congress has the clear power to regulate such matters as the Court's jurisdiction and its size. I also argue that even if we read Justice Alito to be making a narrower claim, he's mistaken: Congress has the power to regulate the ethics of Supreme Court Justices. I give the example of forbidding the solicitation or receipt of bribes by Justices. I conclude the column by describing Congress's effort either to prescribe an ethical code for the Justices or to require them to adopt one on their own as effectively an effort to save the Court from itself: adhering to a code of ethics would reduce the appearance (and perhaps also the reality) of impropriety.

In this essay, I want to note that, despite the ethically questionable behavior of various Justices, the courts continue to command a certain degree of respect that, it seems, eludes other actors. I'll make the point by reference to the federal and Georgia indictments arising out of the efforts by Donald Trump to overturn the results of the 2020 Presidential election.

In the frenzied couple of months after Election Day 2020, observers frequently noted that some of the Trump-aligned lawyers made wild allegations in the media but were generally much more circumspect in court. Here's an example from a Nov. 18, 2020 NY Times story headlined Giuliani in Public: ‘It’s a Fraud.’ Giuliani in Court: ‘This Is Not a Fraud Case.’:

On Nov. 7, the day most media outlets called the race for Joe Biden, Rudy Giuliani stood outside a landscaping business in Philadelphia, making false claims about widespread election malfeasance.

“This is a gross miscarriage of the process that would assure that these ballots are not fraudulent,” he said. “It’s a fraud, an absolute fraud.”

Under questioning from a federal judge in Pennsylvania on Tuesday, Mr. Giuliani made a different admission: “This is not a fraud case,” he said.

One might think that Giuliani and other Trump team lawyers were being careful. Making knowingly false statements in court can lead to discipline, disbarment, or even criminal charges for perjury, whereas lying on television is, absent more, just politics. Yet the indictments allege that Giuliani and various other lawyers lied in furtherance of other aspects of the conspiracy, even though these other lies were pretty clearly criminal.

Despite not being named in the federal indictment, Giuliani and various other lawyers are easily identifiable as unindicted co-conspirators. The Georgia indictment, meanwhile, names and . . . well . . . indicts the lawyers as part of a criminal conspiracy. Some of what they did occurred behind closed doors. With respect to those allegations, it's possible to think that the likes of Ken Chesebro and John Eastman figured that their confidential memos--even though advising Trump on how to abuse the machinery of government to pull off a coup--would never see the light of day. But they and various other lawyers also made statements in public that, according to the indictment, were knowingly false.

Consider "Act 56," described at page 34 of the indictment. It alleges various knowingly false statements that Giuliani made on December 10, 2020, in a hearing in a committee meeting of the Georgia House of Representatives. Lying in such circumstances is a felony under Georgia law (quite apart from the broader conspiracy it furthers). Giuliani was thus willing to lie about supposed election fraud to the state legislature, even though that was a crime, but he was not willing to lie in court. Why not?

To be clear, I'm not asking a question about Giuliani alone. The pattern noted by the NY Times story held true in general; Trump's lawyers weren't willing to lie in court. Yet Giuliani and other lawyers were willing to lie or encourage others to lie in other official settings--in furtherance of the fake electors scheme. Thus, "Act 98," described at page 45 of the indictment, charges Justice Department lawyer Jeffrey Clark with knowingly false allegations of election fraud directed to the office of the Georgia Secretary of State and the Georgia Bureau of Investigation. It charges him with violating the same law that Giuliani is charged with violating, also independent of the conspiracy it furthered.

Thus, I've teed up a puzzle: Lawyers who were willing to put themselves at risk of going to prison in furtherance of a potentially democracy-ending conspiracy to benefit a malignant narcissist nonetheless were unwilling to make knowingly false representations in a court of law. As alleged in the Georgia  indictment, they were content to lie to legislative and executive branch officials but not to a judge--even though the penalty for the former is as severe as for the latter. The distinction cannot be a matter of ethics, obviously, because these are people who apparently have no ethical compass. So what gives?

My tentative hypothesis is that socialization as a lawyer--even of people who are at best amoral--breeds a lasting respect for courts independent of the particular consequences of behavior before courts versus before other bodies. If that's right, then, to return to the topic with which I began, the Supreme Court has a fair bit of leeway before members of the legal profession lose all respect for the Justices.

But that conclusion comes with a couple of important caveats. First, a fair bit of leeway doesn't mean infinite room. And second, the awe that courts inspire even in reprehensible lawyers like Giuliani and Clark doesn't necessarily carry over to the non-lawyer public, which has an increasingly negative view of the Supreme Court.

Put differently, Justice Alito and his colleagues shouldn't take a whole lot of comfort that disgraced lawyers like Rudy Giuliani still have a reflexive respect for the judiciary.