Lawfare Archive: When Lawyers Spread Disinformation

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I'm Marissa Waw and turn it off air.

“With an episode from the law fair archive for April 25th,”

2026. On April 15, the California Supreme Court officially disbarred John Eastman, for his efforts to overturn the 2020 presidential election results. Eastman was found to have engaged in misconduct

by peddling false election fraud claims, and found to have violated professional ethics by pushing a scheme to block the electoral count. For today's archive, I chose an episode from August 5, 2022, in which Quintiturassic and Paul Rosenzwei

discussed the avenues of accountability for lawyers who were involved in the efforts to overturn the 2020 election.

They also discussed how the legal discipline process works,

and if the process is effective in reasserting the truth. [MUSIC PLAYING] [MUSIC PLAYING]

“I'm Quintiturassic, and this is the law fair podcast, August 5, 2022.”

Today, we're bringing you another episode of our Arbitos of Truth series on the online information ecosystem. A few weeks ago, we brought you a conversation with two emergency room doctors about their efforts to push back against members of their profession,

spreading falsehoods about the coronavirus. Today, we're going to take a look at another profession that's been struggling to counter lies and falsehoods within its ranks. The law.

Recently, lawyers involved in efforts

to overturn the 2020 election have faced professional discipline in a variety of forms. Like Rudy Giuliani, whose law license has been suspended temporarily in New York and DC, while a New York ethics investigation remains ongoing.

“Paul Rosenzweike is a contributing editor at Laugh Fair,”

in sits in the board of the 65 project, an organization that seeks to hold accountable lawyers who worked to help Trump hold on to power in 2020, often by spreading lies. Paul has also spent many years working on issues related

to legal ethics. So what avenues of discipline are available for lawyers who tell lies about elections? How does the legal discipline process work? And how effective can legal discipline be in reasserting

the truth? It's the Laugh Fair podcast, August 5th, when lawyers spread disinformation. One programming note before we begin. Evelyn Duac, whose long been my fearless co-host

on this series, will soon be beginning a new role as an assistant professor at Stanford University and will be stepping back from this show. It's been a blast working with her and we wish her the best. Keep an ear out for more on Laugh Fair's plans

for Albertus of Truth going forward. Paul, thank you so much for coming on. So you're on the board of this organization that's called the 65 Project. Tell me about it and what it's doing.

- Well, the 65 Project is named after the 65 lawsuits that President Trump and his supporters filed after the election, all of which they effectively lost. Its mission is to call to account the attorneys who participated in that effort.

Some of those suits were, well, none of them were Maritorias, but some of them were not frivolous. Some of them were based upon realistic objections to certain counting methodologies, the absence of presence of observers

in the voting precincts, that sort of thing. But others of them were notably frivolous when I'm thinking mostly of the ones that the public would know would be the lawsuits by Sidney Powell, - The cracking of the non-crackin' crackin'

Rudy Giuliani's repeated misstatements of law and fact in front of courts. The two non-starter original action suits brought in the U.S. Supreme Court by the states, which passed the border of frivolous.

So attorneys are both zealous representatives of their clients, but they're also officers of the court. And, you know, as we'll talk about at greater length during the course of this podcast, that brings with it certain obligations

of truthfulness lack of frivolity obligations,

Several of Trump's more well-known attorneys,

like Sidney Powell and Rudy Giuliani,

“have been already disciplined or subject to disciplinary actions”

by the bars, the bars, the organization that licenses lawyers, in case people don't know, by the bars where they held their licenses. And the 65 project to wrap it up is an effort to go beyond the two or three most famous lawyers

and call to account the other foot soldier lawyers who filed these suits frivolously, making representations that they knew were false, not ought to have known, but actually knew were false that were not based upon representations that were legitimate.

It's also, secondarily, an effort to call to account other lawyers who made misrepresentations not in lawsuits, but through their participation in President Trump's fake selector scheme, lawyers may not lend their name and/or their support to frauds on the judicial

or process, but also on the legislative process. And by filing false selector claims,

“some other attorneys seem to me to have violated the ethics rules.”

And then I guess the third thing besides retrospective punishment

is the idea that if the bar doesn't self-regulate in this context, it's self-regulation will have faded completely and won't be worth very much at all. And so it's an attempt to revive

or reinforce the bar's self-regulating capacity with an eye not just towards the past, but towards the future as well. - So there's a lot there. And before we dive into it more,

I want to ask you to tell me a little bit more about your background in this era. You didn't just come to this after the 2020 election. You've been sort of working around this issue

of legal discipline for a while.

How do you get started?

“- Well, I actually got started in the 1990s”

when I was working for Ken Star. And one of the interesting little-known sidelights was that he was the subject of numerous ethics complaints by Clinton partisans who were alleging his misconduct. Most of those were fullless.

A few of those were non-frivalists, but I thought in the end, non-meritorious, but all of them required an in-house ethics defense of some form or another. So I participated in helping Judge Star

defend himself before the DC bar council before the Department of Justice's Office of Professional Responsibility, which handles ethics complaints against federal prosecutors. And that interest kind of has continued

for the last 23 years. I have served on the District of Columbia Bar's Legal Ethics Committee, which writes advisory opinions to lawyers, lawyers, ask them, "I've got this weird problem.

What should I do when we write an opinion?" And we're not necessarily right 'cause we don't bind the courts, but if you follow our advice, you get a safe harbor of not being willful.

I sat on the DC bar's Rules Review Committee, which changes the ethics rules on a periodic cycle. Updates them, you know, one of the interesting things there was dealing with obligations of confidentiality in an electronic world,

since all the rules confidentiality were written back at a time when you had to lock your paper away in a file cabinet, and that was considered adequate, did not the same. I currently, I'm a hearing examiner

for the District of Columbia Bar, which is their kind of in-house adjudicate of function, where we hear complaints against other against lawyers who might have violated the DC bars rules. And I'm also on the US Court of Appeals

for the District of Columbia's Committee on Admissions and grievances, which does the same. And having mentioned both of those, I should absolutely hasten to completely add that anything I say today has no bearing on either

of those two institutions, and they may well disown me for what I say. But it certainly means that I'm not speaking for them and frankly, to the extent that I speak about stuff here, it means I wouldn't serve on any actual hearings

in the District of Columbia that might come before us for reasons of interest and justified recusal. - So you've been working in this space for a while,

and the disciplinary proceedings that we're seeing

against lawyers who were involved and was just saying shenanigans generally around the 2020 election stack up to what you've seen in your work in this space. Are these sort of, you know, the legal profession,

there are plenty of jokes about lawyers behaving and ethically, you know, a bit slippery, is this within the realm of misconduct

“that you've seen in the past or is this something new?”

- This type of conduct is clearly in the minority zone. The majority of complaints against attorneys are things like he failed to follow up on my case and he missed a deadline. Or he co-mingled my funds with somebody else's

and took money that he or she wasn't entitled to. More rare, he or she had a conflict of interest that they didn't adequately disclose and I was not made aware of them until after I lost. There was the judicial watch guy Larry Cleiman.

Larry Cleiman, he was recently just subject to discipline for a conflict of interest matter. It is really rare in my experience for lawyers to be subject to investigation and disbarment and sanction for conduct of the sort that Rudy Giuliani

was subject to. You know, affirmative misrepresentations in court.

“For one thing not, as you said, notwithstanding”

the jokes about lawyers, they don't actually tend to do that very often. For another, it often runs up against the obligation of zealous advocacy, which is kind of the bars equivalent

of first amendment to advocacy.

You're supposed to go all the way up to the line in saying things on behalf of your client and because we don't want to deter you from being zealous, that line, you can get all the way up and maybe even a little over and not run into too much problem

because of that. So these instances of outright fraud or rare, I should say that the only exception to that rule is that lawyers are often disbarred for fraud unrelated to their being a lawyer.

If I lie to you and steal money from you in my personal capacity, I still lose my law license. So I'll say, I first got interested in this because through the lens of misinformation that there was a lot of discussion around 2020

and around the litigation. After 2020 about how do we counter falsehoods and lies about the election? And mostly that was focused on technology platforms like should Twitter, should Facebook be doing more to limit

this kind of information. And so it struck me as interesting when we also saw lawyers and professional associations and state bars, kind of step in and say, we also think that we should be pushing back here

and that there is a way to do so through these rules of professional conduct and other rules that sort of bind lawyers kind of within the courtroom. So what do you think then about this possibility of using legal discipline as a way of countering misinformation

and disinformation? Is this kind of a process that can be used to reassert truth in a sense? - It's a process that can be used to reassert truth, but I think it operates in a relatively narrow context

of the legal process itself, which is to say that people know that Rudy Giuliani was just barred or some do not but not many do. And of those who do, almost none would probably know the details of exactly why he was just barred.

And what falsities he told the court that resulted in his being subject to discipline? The same is likely true of Sidney Powell. We know she lied and we know she's getting disciplined and that by itself is probably a good thing

for reasserting the value of truth,

“but it doesn't establish what the truth is.”

It just establishes that there was falsity out there that was sanctionable. On that score, the legal ethics process is a good but not great vehicle for doing that, this.

The first limit, as I've already kind of alluded to,

is that it bumps up against this zealous advocacy idea that is at the core of representing the client. And so we expect lawyers to argue the facts in the way that is the closest and best way to justify their client's position,

whatever that position might be. And that makes it difficult to use this process

and most extreme of falsehoods.

And frankly, the danger I perceive to the integrity of the election of the perception of integrity of the election is a lot closer to those margins. I mean, yes, they can say that stuff was sent

via satellite to an Italian manufacturer that resulted in 10 trillion votes being taken out of Dominion Machines. But it's just the election was stolen. That's the problem, not the mechanics of it that are there.

And as to that, the 65 court cases probably did a better job than this will do.

“What I think the discipline process can do”

and should do better is both be a specific and a general deterrent to this conduct within the bar. Specific in the sense of obviously of punishing particular bad actors having them lose their low license.

See, a Rudy Giuliani will not do this again because he won't be allowed in court to represent anybody. Again, at least not until he gets his low license back and that seems like it won't happen during his lifetime. So that's a good specific deterrence.

And then there's the general deterrence of other lawyers who might be considering whether or not to participate in schemes of this nature. Looking up and saying, do I really want to go this way? Now that I know that the bars are actually being

at least somewhat active in policing the matter. - So legal discipline is a complicated process. There are a lot of moving pieces. There are a lot of different authorities involved. It very significantly state by state.

So I don't want to ask you to give us an overview of how all 50 states and all the different jurisdictions go through this process. But using whatever example you're most familiar with, just give us a sense of how this works.

Let's say an attorney is litigating before in the D.C. courts and federal courts in D.C. makes some frivolous false claim. What happens then?

“What's the pathway that leads us to potential discipline?”

- So we're in D.C. federal court.

The first thing to know is that D.C. federal court

imports D.C. local bar rules. The licensing authority is the local bar D.C. in this case, or California, Iowa. The federal courts have discipline only over people who are practicing before them as opposed to people

who get licenses because they're not licensing authorities. So if we were in D.C. federal court and an attorney made one of these agreachously false representations. And I'm going to assume as well that the attorney

is also licensed in D.C. somebody would have to initiate the investigation by making a complaint. That could be a opposing council. It could be the attorney's client

if the false representation, for example, wound up

“in the guy going to jail and getting convicted.”

It could be the district court judge in front of whom the attorney appeared. That's, for example, what happened in Michigan to Sydney Powell, the district court judge, found her to have violated the ethics rules

and besides making her pay money to Detroit for the frivolous lawsuit, sent her name to the relevant bar authorities for further investigation. Once such a referral or complaint is made,

it goes in D.C. to the Office of Bar Council, which is an investigative group of attorneys who conduct an investigation. They have plenary authority to do that investigation and compulsory authority over the attorney himself.

It is an ethics violation to not cooperate with the ethics authorities. They can do whatever they feel is appropriate. For example, many complaints, they take a quick look at D.C. to the frivolous

and get rid of them without investigation. All those of them, where they've done a little bit of investigation, they will dismiss, often with clearance through an adjudicative authority,

which I'll get to in a second.

Or they can bring a complaint. If they bring a complaint, that brings it to the adjudicative authority, which in the district of Columbia is a group of hearing examiners,

who are effectively administrative law judges.

always includes at least one non-lawyer citizen,

“because D.C. is committed to getting the perspective”

of our citizenry. And then that adjudicative body will make findings of fact, and conclusions, and recommend a sanction. The attorney can accept that sanction, or in rare cases yet, appeal that sanction

to the district of Columbia Court of Appeals, which is not the U.S. Court of Appeals for the District of Columbia, the federal court, but the District of Columbia Court of Appeals, which is our local highest appellate court, who are the official adjudicators of bar discipline

in, as a matter of final authority, and the ultimate promulgators of the rules of professional conduct here in the District of Columbia.

Ultimately, if that body resolves a contested proceeding,

its decision is final. The punishment that we can meet out with respect to bar discipline is limited to bar related stuff. You can be cautioned. You can be ordered to take remedial training.

You can be suspended from the practice of law for a period of years, or your license can be permanently revoked. And that's it. So, one of the reasons that it's not such a great, it's a useful disciplinary process,

but it's not that punitive. Because it's not that punitive, it doesn't have the same compulsory power

as a civil suit for damages,

or, obviously, a criminal suit, where you wind up in jail for a term of years. - No, no plans for such an end. Besuch the road kept in a leapness world and with your own means of your own,

or, in the end, you can take a look at the rules of the law. Our interactive exhibition by the elite tour, Artigall and Artigall, and a classic,

“and the most important part of the world's development,”

is the road-kitchen of the elite world, just a little bit. - And then, Father, it was good. - But when you're dead too. - You have to leave. - No, you're dead.

- You have the story to help you. - Yes, the star must be in. - We must see a vehicle, so for these! - Hurren, death-ordable original Hirspiel, yet no-by-ordable. - There's also the matter of what federal judges

can do just within the courtroom. So, we talked about the judge in the eastern district of Michigan, who disciplined Sydney Powell and her crack-in legal team, in part by referring them to their respective state bars

for discipline, and at least in Powell's case, that has translated into an investigation and ethics charges being brought by the Texas Bar. That judge also fined Powell's team, as you said.

“A pretty hefty chunk of change, I think, over $180,000.”

She told them that they had to take some continuing legal education credits. - Walk me through what that discipline in a trial court, how that interacts with discipline by state bars, 'cause I think it's a complicated little question.

- Well, I mean, essentially, it's parallel. The two can happen, and one does not have preclusive effect on the other. One does not control the other. Obviously, one informs the other,

and the fact that the judge has already done all of this, kind of gives the Texas Bar some sense of, at least one judge viewed the severity of what Powell did. The degree to which a judge may impose discipline is also partly dependent upon whether or not

the contemptuous behavior occurred immediately in his or her presence, the judges' presence, or happened outside of the court. If it happened in the judges' presence, the judge has pretty plenary authority

to run the gamut of sanctions all the way up to an including telling the Marshall to arrest the attorney and put him or her in jail for a period of a few of some time until they purge themselves of the contempt. If the contempt happens outside of the judge's presence,

then the judge has to typically go through some form of fact-finding process inside the courtroom that would justify whatever discipline he or she is thinking of imposing, and that may involve hearing from witnesses,

and it will certainly involve hearing argument.

So the summary, go to jail now, doesn't happen very, very often. And it usually is for something even worse than lying to the court, it's for disobeying a direct order. You know, sit down, stop making that argument.

I gotta do that, off to jail. And that's exceedingly rare. - And as far as I know, we didn't see any examples of that. - No. - As far as I know, none, I have not studied all of them,

“so I hate to do the all, but I believe that didn't happen.”

- So we've kind of touched on this already, but I think it might be useful to dig with more specifics into what kinds of conduct we're talking about here

in terms of the conduct implicated by 2020 election litigation

and giving advice to Trump around overturning the election. We've talked about the rules of professional conduct. What particular rules, what particular provisions do you see these lawyers as having potentially violated that could put them in jeopardy before state bars?

- Well, there are probably speaking two rules that are applicable in this context. And I'm gonna talk right now about the representations in court, 'cause the false electors are a slightly different group. But every state bar has rules of professional conduct

or rules of professional responsibility, one of which bars a lawyer from making knowing false representations to court.

“We are officers of the court, and we can't,”

we can't tell the judge I served Quinta with the papers when I haven't served Quinta with the papers. Judges are entitled to and do rely upon those representations all the time. It is improper and unethical for a lawyer

to knowingly say something false. Now that, again, it's gotta be knowing,

so there's always that little out of I didn't know,

and it's gotta be false as opposed to a matter of opinion. But, you know, if a lawyer says I have evidence admissible evidence that 10,000 votes were transferred from one dominion machine on one dominion machine from Trump to Biden, and he has no such evidence.

Nor does any such evidence exist, that's the type of misbehavior that can get a person chose. So that's a misrepresentation in court.

“A second set of rules, bars lawyers from making”

frivolous claims, claims that they knew or ought to have known our frivolous. And that doesn't mean that I can't make a claim that I think is likely to lose if I have a good faith basis for thinking

that there might be some way forward to win. It's the difference between arguing that the evidence should be suppressed, even though I know that unlikely to lose that, which is something that defense attorneys do every day,

and arguing that the cop didn't get a warrant when I know in truth and in fact he got one. And I may argue it's defectiveness, and I might be wrong, and that would be stretching it. But it's the frivolous claim, the misrepresentation.

So this is kind of the claim that, for example, Texas has a right to intervene in Pennsylvania's adjudication of its electors. - Which can you get a little context about that? 'Cause so for listeners who haven't followed this closely,

that is a claim that was made by Texas attorney general, Ken Paxon, who is now facing this? - A claim for making that claim. States may shoot through other states in the original jurisdiction of the Supreme Court.

So there are lots of cases, New Jersey versus New York, over who owns Ellis Island, sort of thing. - That's a proud New Jersey, and I'll stick up for that. - I'm a New Yorker and you're wrong, but there you go. We should ask Dr. Oz about that.

- I'm sorry, I had to go there. I apologize to all Dr. Oz fans, but Texas attorney general Ken Paxon brought a suit or a purported to seek to file an original action in the US Supreme Court,

alleging that Pennsylvania's method of allocating its electors was flawed. When there was no colorable claim of jurisdiction over that, the factual allegations had been rejected by five, I think Pennsylvania courts already,

that state and federal, so it was the type of frivolous claim

and has wound him up in hot water for filing frivolous claims in front of the Texas state bar, who are currently in the midst of an investigative proceeding that may or may not result in him losing his Texas state bar license. There's one other area of ethics rules

that probably bears mentioning. The first two of those apply when you're representing a client. So it was critical, it is critical, for example, to complaints about John Eastman, that at the time he made seemingly false claims

about the Dominion Machines, he was also representing Donald Trump in the Supreme Court, as was Ted Cruz, by the way, or at least so it seems.

“But beyond that, there's a catch all rule 8.4, I think.”

That basically says lawyers should never engage

in any fraud of any sort, even in their personal lives. And we have a doctrine that you're a lawyer full time 24/7. Now that doesn't mean that I can't tell my wife that she looks good in the dress when she doesn't, though, Katie, you always look good in the dress.

But it does mean that even outside of the practice of law, if I commit fraud in some other thing, you know, in buying a house or in stealing shoplifting, I violated prohibitions against dishonesty, misrepresentation and fraud and criminality,

that generally mean that I will be disbarred if convicted of a crime, even if the crime is unrelated to my legal practice and flipping it around, I can be disbarred for my legal practice if the bar concludes that I have committed

“or have likely to have committed a crime.”

- And so when we talk about disappointing lawyers for spreading falsehoods, how does that interact

with the First Amendment?

I know Sydney Powell and Rudy Giuliani have both pointed to the First Amendment and arguing that the state disciplinary proceedings against them in Texas and New York, respectively, are improper, essentially,

are youing that they're being penalized for expressing their political beliefs and that those beliefs are that the election was stolen. So what kind of constraints does the First Amendment put on this kind of discipline?

And why is it constitutionally acceptable for a state authority to discipline a lawyer for speech that might be protected for somebody else?

“- Well, that's why the caveat of representing a client”

is critical. I do not believe that either of them would have been subject to any discipline at all, had they spoken in a public setting of their belief that the election was so Rudy Giuliani

is not subject to dis, it was not disbarred for what he said in front of the Four Seasons landscaping. Company, he was disbarred for what he said in court

and the courts have held against First Amendment challenges

that lawyers, First Amendment rights with respect to what they say in court, and also by the way, with respect to what they say regarding their qualifications in lawyer advertising, though sounding in the First Amendment

may nonetheless be the basis of discipline. So in other words, the courts can impose gag rules in criminal cases, they can impose discipline for lying in court and the First Amendment does not bar that.

What it would bar or what it is likely to bar would be if Rudy Giuliani was subject to discipline if we're saying Donald Trump won the election during the course of his speech at the Four Seasons. Though even there, it is the case

that if there's an ongoing matter, a court may limit what the attorney can say outside of the courtroom. You can impose a gag order as we do in all sorts of high-profile cases,

rape cases, politics cases, mafia cases, where the attorneys are directed not to be able to go out and comment on the proceedings that are happening at that moment. And that's not considered a First Amendment violation

because it's in service of the operation of the judicial system. So basically Giuliani and Powell are making it up, and honestly, both of them have lost every time they've raised that for exactly these reasons.

that has looked at it.

“Right, and Powell, I think what you might remember”

of instance, that Powell recently tried

to get the Texas Bar proceedings against her dismissed, and the judge was not particularly interested. So I think we've mentioned Ted Cruz before. I think that Cruz's statements might be a good way to kind of explore

the importance of this attorney-client relationship and advocacy in whether or not something is open to bar discipline. So the 65 project, of course, has filed an ethics complaint against Cruz, which points

in large part to comments that he made on his podcast. I personally did not know that Ted Cruz has a podcast, but he does, he talked about the 2020 election on it. So what is it about Cruz's statements on his podcast that you think put his comments

about the election into a space where Bar discipline is appropriate?

- Well, a couple of things, the first and most important

is that he made them while he had said, I will represent Trump in the Supreme Court. I will argue the case for him. So it appears that an attorney-client relationship was created between Ted Cruz and Donald Trump

for the period of time from when he said he would do that until the time when the Supreme Court dismissed the case at a minimum and rendered mute the or terminate the representation because the case to which it referred was done.

“So it's, I think, critical to say that none of this”

is about Ted Cruz talking on the floor of the Senate and none of this is about Ted Cruz saying anything about any of this before or after his representation of Donald Trump. That having been said, when you're in attorney,

representing a client, you may not make statements that you know to be false statements of fact in support of your representation. And again, where it's the same thing we've talked about several times, you're allowed to zealously advocate,

you're allowed to run up to the edge, but on his podcast, Cruz made several, false, I mean, demonstrably false statements about the integrity of the election. He said that he thought that there was ample evidence

that that votes have been stolen. He said that he thought there was ample, yeah, significant evidence that dominion was hacked at none of which was true and I would add that he did that after publicly saying that before he took the case,

he reviewed the filings and some detail. So it wasn't that he could say that he was repeating what somebody had told him, which would be laxedasical on his part, but perhaps a defense, but he affirmatively publicly said

“I've read it all and I think that there's substantial”

evidence of fraud here. When if he'd read it all, he would know that there was no such evidence of fraud. He would also have known that Trump was over 65 in purporting to do that.

So in some ways, I mean, in some ways I feel sorry for Cruz, because he was probably just being a politician doing what he could to burn his credentials, because he wants to be the next president of the United States. But in other ways, he's the worst actor of all,

because he has the biggest public microphone.

He's an elected senator from the third largest state

in the union, second largest now, I guess. With presidential ambitions, and if he says stuff like that, publicly, in the context of representing Donald Trump, he's making that disinformation might megaphone even louder and he's doing so with the authority of somebody

who's explicitly invoking his "I'm Trump's attorney" and I've checked out the evidence expertise. And so you said that it's important to keep in mind that part of this has to do with putting forward knowingly false claims.

It's not just that you made an honest mistake. I think that gets to something interesting, though, and it gets to something that we've talked about a lot in the context of January 6, which is in the context of criminal culpability, which should be clear,

is a very different matter, whether Donald Trump knew that the election that he had really lost the election or whether he'd convinced himself that he'd actually won. And how that shapes our understanding of his criminal culpability in this context, again, which is a very different context,

how do we identify whether or not somebody knew that whether saying is a lie? Like Sydney Powell, for example, could she argue,

that the election was stolen, but she really believed

that the election was stolen. How do you adjudicate that in this process?

“Well, I think you adjudicate it the same way.”

I mean, irrespective of the standards of proof and of the culpability at the end, you adjudicate somebody's knowledge and intent from their actions and from their words, and you infer from that.

So I'll play off of Trump a bit and say that everybody acknowledges that he is psychologically, a really interesting and unusual and different case. And so there's at least at a centilla of possibility that he genuinely believes that he won the election,

in which case he's insane and should not be present.

I mean, I'm not saying that jokingly.

If he genuinely believes a fact that isn't true, he shouldn't be present in the United States. But that would be a complete defense, I think, if he had it. Yeah, insanity is a legitimate criminal defense and has been so for 250 years.

Because we don't punish people criminally for that, which they can't control. Yeah, the truth of the matter is that for people who don't present nearly that kind of edge mental case, the argument, no, I really did believe it,

is, you know, mostly pretty laughable. I mean, you know, these are all uniformly lawyers educated at the bar, Sidney Powell went to what? UNC Chapel Hill, right? You know, pass the bar, you know,

if 65 courts tell you that you're wrong, I don't believe you when you say I genuinely still think I'm right. Because the evidence is such that that's not a credible statement of your actual state of mind. To be fair, I don't actually believe that about Trump,

either as the January 6th evidence has amplified how many people told him who's wrong and how frankly he seemed to have acknowledged it as well. As did Powell, right? Powell at one point said, well,

you shouldn't have taken my filings. Seriously, they were performative political theater. And this is, this is in her defense against a defamation case, filed, I believe by Dominion. Exactly, yo, you shouldn't take it seriously.

I meant to, which the answer is,

“where in court you only do things that you mean here in court, right?”

If she made that defense out, yeah, what she said to, yo, a rally, yeah, it might fly, but you don't get to do that in court anymore. I mean, and that kind of is the backside of this, which is that lawyers representing clients in proceedings,

already are under an affirmative obligation to be sure that what they're saying is true. So that superimposed upon the extensive evidence that what they're saying is not true, negates pretty strongly any legitimacy

in the argument, no, I really, I really thought that we won the election. - And this gets to something that I think is notable, honestly, throughout the Trump era in terms of the role of courts

that you would see President Trump when he was in office making these sort of big wild statements about things, and then his lawyers would show up in court and would be forced to make a very much constrained version of that same argument because the courtroom is a space

where you can be disciplined if you speak falsely.

“And to some extent, we, I think we did see this”

in the 2020 election litigation where you know, Rudy would go out there and make these big wild claims and then would say, I'm not really alleging any fraud. - Exactly, exactly, which is one of the things that has got him in hot water before our authorities.

I mean, keeping in mind what you said before about the fact that this is, you know, insofar as legal discipline is able to kind of push back against falsetto, it can only do so in a very, very limited way. Is it fair to see the courtroom as a kind of space

of truth and a political environment that has been uniquely overrun by falsehood right now or is that to, you know, pie in the sky or is called it glasses? - I would say that it is to a limited degree

a space of truth. I mean, that after all is what the adjudicative processes about, we think that the rules help us get closer to the truth, imperfectly, to be sure. I think that to some degree Trump tried to bombs rush

the courts as well as he bummed Rush the executive

And of the four of those, the courts have proved

“the most resistant during the Trump era.”

One thinks, for example, of the census bureau decision in which the court, though only barely rejected the transparently false justifications offered by the census bureau for imposing a citizenship question in the census, you know.

So the courts held the line more than many and certainly in the election itself, they did an excellent job. And that was across the ideological spectrum of judges. And just as it was comforting, the courts are imperfect

and their ideological biases are real, but it was comforting to see that uniformity in the rejection of President Trump's absurdities. - How do you think disciplinary authorities have been doing so far?

Obviously, the six-year project is formed in part to kind of push for discipline on a group of lawyers who haven't faced it. So far, do you think

“that authorities have been insufficiently aggressive?”

- Bar authorities are traditionally not very aggressive. There's almost no self-started cases across the country.

They always come on complaints.

So they are inherently reactive rather than proactive. And that's a history that goes back years and years and years is not related to January 20th at all, which is one of the reasons that the 65-project wanted to kind of goose him along.

They are also historically extremely slow methods and trusted with procedural rules, but also very careful, very reluctant to act, very reluctant to step into political matters. Most of the Ken Star matters were rejected on the,

we're not going to get between the independent council and the president, ground, which isn't really a legal ground for rejecting taking disciplinary action. - But it's a reality, 'cause they're really pretty far down on the totem pole of a duty of authority and punitive authority.

So they know their place in the world. And it's not the apex predator, if you will. I would say that so far, they're doing pretty okay. Y'all, Giuliani's been disparate or suspended, I guess, he hasn't been fully disparate yet.

Powell is facing at least two active investigations, I think. Jeffree Clark has an active investigation open against him. So does John Eastman, Eastman and Clark are and Giuliani are likely to face much more severe problems

than the disciplinary process. And I should add, by the way, that often disciplinary processes wait 'cause they don't want to interfere with those things that are higher up in the process. So for example, hypothetically,

we're John Eastman to ever be indicted the disciplinary investigation of him in California would be suspended almost immediately, because nobody would want to conflict with that. And so that's another fill up to it.

I am hopeful that the disciplinary process takes up the mantle of adjudicating complaints against the less famous foot soldiers in this, people like Clita Mitchell, for example, people like the fake electors in Georgia,

whose active participation was actually essential

to helping Trump fight his loss and who ought not to have done what they did. Just ought not to have done what they did. When your client puritively commits a crime in front of you on the same phone call that you're on,

your job is to stop the call and tell him in a sidebar, sir, you can't say that, period, full stop. You just cannot ask for votes in Georgia. And yet, Trump's attorneys did not do that. In fact, they double pumped him and helped him along.

That's misconduct and ought to be subject to bar reveal. - So for people who are interested in keeping an eye

“on this going forward, what would you suggest they look out for?”

Are there particular signs that would suggest that disciplinary authorities aren't being aggressive enough? What should they look for to indicate that investigations are going forward in the way, perhaps that you would want given that so many of these procedures

- Yeah, it's hard to keep track of them

“because, in fact, they are confidential.”

The public milestones that happen most frequently are the opening of the investigation is often publicly acknowledged. The filing of a complaint, which is the, you know, prosecutorial equivalent of an indictment

in this case, is typically a public step.

So for example, an investigation is ongoing,

but no complaint has been filed against Johnny Eastman in California. That would be something to note.

“Thereafter, there would be an adjudicate of decision.”

That too would be public at some point and that would be an item of note. So each of these is somewhere along the way from start to finish, the milestones being opening investigation, formal complaint, adjudication of responsibility

and termination, the case in imposition of discipline. Those would be the four highlights. So for example, just last week, the ethics bar counsel in DC filed a formal complaint against Jeffree Clark.

So that will now go to adjudication

“in front of the hearing examiner's board”

of which I'm a member. I should add, by the way, that both because I've spoken about here and because I know Jeff Clark, if asked to sit on it, I would not participate. So I'm free to at least note that without prejudging it

in any way. All right, let's leave it there, Paul. Thank you so much for coming on. Thanks for having me. You've been listening to Arbidres of Truth.

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