Here is the column:<\/p>\n This week, New York\u2019s Supreme Court took the\u00a0extraordinary step of suspending\u00a0Rudy Giuliani<\/a>,<\/strong>\u00a0former federal prosecutor and counsel to former\u00a0President Trump<\/a>, from practicing law. As a long-standing critic of Giuliani for his\u00a0baffling<\/a>,\u00a0self-defeating<\/a>\u00a0and at times\u00a0bizarre statements, I found the action was, on some level, reaffirming.<\/p>\n However,\u00a0the fluid standard applied in Giuliani\u2019s case raises serious concerns over how and when such suspensions will be imposed against lawyers in public controversies.<\/strong>\u00a0Indeed, the Giuliani standard would seem to implicate a wide array of attorneys who straddle the line of legal and political advocacy.<\/p>\n The\u00a033-page opinion<\/a>\u00a0is damning and embarrassing; in all likelihood, it will result in Giuliani\u2019s eventual disbarment. It also is deeply concerning in its heavy reliance on Giuliani\u2019s statements out of court.\u00a0While lawyers have been disciplined for out-of-court statements in some cases, this suspension seems primarily a judgment on Giuliani\u2019s public advocacy. The court states that when he uses<\/p>\n \u201chis large megaphone, the harm is magnified. \u2026 One only has to look at the ongoing present public discord over the 2020 election, which erupted into violence, insurrection and death on January 6, 2021, at the U.S. Capitol, to understand the extent of the damage that can be done when the public is misled by false information about the elections. The AGC [Attorney Grievance Committee] contends that respondent\u2019s misconduct directly inflamed tensions that bubbled over into the events of January 6, 2021 in this nation\u2019s Capitol.\u201d<\/p><\/blockquote>\n Such rhetoric leaves the impression that the investigators and the court itself were eager to impose judgment on Giuliani for the Capitol riot and other unrest through a bar action.<\/strong>\u00a0In an actual case for incitement, such a causal connection would be rejected by any court as a violation of free speech. Many lawyers can be accused of fanning unrest or even violence, in cities ranging from Washington, D.C., to Portland, Ore., through their declarations on subjects ranging from police shootings to election fraud.<\/p>\n Likewise, Democratic members of Congress have challenged presidential elections regularly and unsuccessfully, including challenges made at the certification of the votes before Congress.<\/strong>\u00a0Many refused to recognize the legitimacy of Trump\u2019s presidency. Yet there was no cry to disbar the lawyers or the members behind those challenges.<\/p>\n Take Marc Elias, one of the loudest Democratic voices denouncing Giuliani (and other Republican lawyers) as attacking democracy itself. The\u00a0Perkins Coie attorney led efforts to challenge past Democratic election losses; in one such case, he argued that\u00a0Rep. Claudia Tenney (R-N.Y.) effectively stole the election from Democrat Anthony Brindisi,\u00a0arguing in court<\/a>\u00a0that \u201cthere is reason to believe that voting tabulation machines misread hundreds if not thousands of valid votes as undervotes, and that these tabulation machine errors disproportionately affected Brindisi.\u201d That should sound familiar.<\/p>\n Elias, who heads a group called Democracy Docket, has been accused by critics of lying about past election controversies. Before the 2020 election, there was the 2016 election scandal based on the infamous Steele dossier\u2019s sensational, unsupported claims of collusion between Trump and the Russians. However, throughout the election, the Clinton campaign and its lawyer, Elias, allegedly denied that it had funded the dossier. After the election, journalists discovered that the Clinton campaign disguised payments for the dossier as\u00a0\u201clegal fees\u201d<\/a>\u00a0paid to Elias\u2019 law firm.\u00a0New York Times reporter Ken Vogel said Elias \u201cpushed back vigorously, saying \u2018You (or your sources) are wrong<\/a>.\u2019 \u201d Times reporter Maggie Haberman wrote: \u201cFolks involved in funding this lied about it, and with sanctimony, for a year<\/a>.\u201d When Clinton campaign chairman John Podesta was questioned on the matter by Congress, he\u00a0denied any\u00a0contractual agreement<\/a>\u00a0regarding the dossier. Sitting beside him was Elias, who reportedly said nothing to correct the false information given to Congress.<\/p>\n So, Elias was accused in these reports of lying to the public, the media and Congress. He has every right to defend himself and prove his innocence on such allegations. Yet, none of the \u201cleading lawyers\u201d cited by the New York court or in the media called for a bar investigation let alone a suspension.<\/strong><\/p>\n The fact is that many reckless statements are made by lawyers about elections and other controversies. Even President Biden has been confronted over his\u00a0false statements about Georgia\u2019s election law<\/a>; rather than correct his claims, he has continued to repeat them \u2013 just as the court cited Giuliani for doing outside of court.<\/p>\n Lawyers often make sensational, false claims that inflame public opinion, such as insisting former Attorney General\u00a0William Barr<\/a>\u00a0violently cleared D.C.\u2019s Lafayette\u00a0Square last year to arrange for Trump\u2019s controversial photo op outside St. John\u2019s Episcopal Church. The claim outraged many Americans, even though there was no evidence to prove it; several lawyers\u00a0repeated the photo op myth as fact on TV<\/a>. An\u00a0inspector general and a federal court both later debunked<\/a>\u00a0the myth, but the damage was done: To this day, many people believe it. Nevertheless, I do not believe any lawyers should be suspended for such claims, which should be protected as free speech.<\/p>\n The New York court brushes over the free speech implications of its ruling with a conclusory statement that Giuliani knowingly misrepresented facts, even though it did not afford him a hearing on that or other questions.<\/strong><\/p>\n It is not enough to declare \u201cDon\u2019t be like Giuliani.\u201d<\/p>\n What is missing in this opinion is a clear standard for when the failure to establish a case \u2014 as Giuliani failed to do with his election fraud claims \u2014 is a disbarring offense.\u00a0<\/strong>In reality, many cases collapse in court over insufficient evidence. Election challenges are made without access to critical records or data held by election boards or officials \u2014 indeed, litigants often go to court to gain such access.<\/p>\n Likewise, public interest lawyers often bring cases against the government, which classifies or withholds evidence. When I\u00a0litigated the Area 51 case<\/a>, I was suing a base that the government claimed did not exist, and all information about it was classified; we prevailed in establishing environmental violations but only after years of intense litigation and denials.<\/p>\n![\"\"](\"https:\/\/www.zerohedge.com\/s3\/files\/inline-images\/c8d4027e-d36f-4a9c-b503-9978f7b96fe8-AP21063604919662.jpeg?itok=6YU2q5Yx\")
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