Zealous representation and the trial of Donald J. Trump

As a profession, we are aware of the numerous historical instances of "lawyering" that have given us a "black eye" in the perception of the public. The current proceedings regarding the impeachment of President Donald Trump serve to magnify this further bringing home increasing public distaste with the profession. One commentator (Dana Milbank) has alleged the trial has exposed the "chief justice's captivity" in the process that is placing us "in a crisis of democratic legitimacy: A president who has plainly abused his office and broken the law, a legislature too paralyzed to do anything about it -- and a chief justice come face to face with the system he broke."

Cipollone

While the flak flying through the skies hovering over the impeachment process seems to be landing on deaf ears, what stands out is the charge by some reporters, such as the Washington Post's Jennifer Rubin and Max Boot, that certain members of the bar are engaging in "dishonest lawyering" defending a president who has made "more than 16,241 false statements since taking office," and are now resorting to "their own lies."

Boot emphasizes "Johnnie Cochran showed during the O.J. Simpson trial that it is possible to be effective even when the facts are not on your side. You don't have to resort to outright lying as the president's lawyers did."

Rubin has gone so far as to suggest since there is no judge to intervene and "possibly hold the lawyer[s] in contempt for such ... blatant misrepresentation[s] ... home-state bar [associations] should investigate" what amounts to allowing "known falsehood[s] to go uncorrected." There should be an effort made by "state bar members and distinguished lawyers ... [to] call out this sort of egregiously improper and dishonest lawyering. If Trump's lawyers won't abide by the simple code of ethics, it is time for their peers to step forward to enforce it."

The shocking disclosure during this past week regarding alleged revelations concerning Ukraine aid reported to be in former White House security advisor John Bolton's soon-to-be-released book, claiming Trump threatened to withhold foreign aid to Ukraine unless the country promised to investigate former Vice President Joe Biden, undercuts Trump's impeachment defense and highlights Rubin's call for state bar action.

Amber Phillips, also writing in the Washington Post, has characterized Trump's five major lawyers (out of 10) as follows:

Pat Cipollone (White House legal counsel) has labeled the House inquiry as "unconstitutional," justifying his preventing the testimony of current and former aides to Trump and refusing to respond to subpoenas. His efforts to assert an expanded version of presidential power has caused written fallout from approximately 24 of his University of Chicago Law School classmates accusing him of "distorting the law and flouting intellectual honesty." Additionally, he has been chastised for acting as Trump's personal lawyer when Cipollone is a government official whose sole role is representation of the legal interests of the White House.

Sekulow

Jay Sekulow (Trump's personal lawyer and former Daily Journal contributor) is defending the president from congressional subpoenas and in connection with federal prosecutions in New York seeking Trump's financial records. Sekulow's arguments on Trump's behalf (his financial records are being sought for political purposes and obtaining them would be a distraction from the president's duties) have been rejected by lower federal courts. The matter is set for a March hearing by the Supreme Court.

Kenneth W. Starr, former independent counsel for the Clinton impeachment hearings whose subsequent notoriety was his reported firing in 2016 as president of Baylor University resulting from an investigation regarding the school's effort to cover up allegations of sexual misconduct by its football team.

Alan Dershowitz (Harvard law professor) celebrity criminal defense attorney and author of the controversial book "The Case Against Impeaching Trump."

Robert Ray (former independent counsel) New York prosecutor experienced in impeachment matters, and history of writing pro-Trump op-eds.

Justification for what is transpiring sometimes is excused as "zealous representation" of the president, to which he is entitled. So, party politics aside and irrespective of whether a republican or democrat occupies the White House, let's look at what some of the applicable provisions of the ABA Model Rules of Professional Conduct provide. While the rules and comments are extensive, the following selected sections make clear the lawyers' responsibilities. All the states except California have enacted statutes based on the Model Rules.

Kenneth Starr

In reviewing these rules and comments the question arises as to where are the "guardians of our rule of law" to stand up to a chief executive who acts like an autocrat insisting he can do whatever he wants, including withholding evidence?

Rule 3.1 "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."

Comment 3.3 [2] "This Rule sets forth the special duties of lawyers as officers of the court to avoid conduct that undermines the integrity of the adjudicative process. A lawyer acting as an advocate in an adjudicative proceeding has an obligation to present the client's case with persuasive force. Performance of that duty while maintaining confidences of the client, however, is qualified by the advocate's duty of candor to the tribunal (under Rule 1.0 (m) a legislative body is a "tribunal"). Consequently...the lawyer must not allow the tribunal to be misled by false statements of law or fact or evidence that the lawyer knows to be false."

Rule 3.3 (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; ... 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 reasonable remedial measures, including, if necessary, disclosure to the tribunal."

Dershowitz

Rule 3.4 "A lawyer shall not: (a) unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act; (b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law...Rule 3.5 A lawyer shall not: (a) seek to influence a judge, juror, prospective juror or other official by means prohibited by law."

Comment 3.9 [1] "The decision-making body, like a court, should be able to rely on the integrity of the submissions made to it. A lawyer appearing before such a body must deal with it honestly and in conformity with applicable rules of procedure."

This is not an insignificant problem but one of crucial importance in our supposedly democratic constitutionally governed society. And, I dare say not something many of us contemplated ever facing when navigating our way through the travails of required law school courses in legal ethics or professional responsibility. The traditional "playing field" of the law has been expanded in ways most of us probably never anticipated in earlier times. Since the "dam has broken" there is no telling what the future has in store for the ethics of the profession. 