Briefs Filed in Giuliani D.C. Bar Case

Disciplinary Counsel has filed its brief in support of Rudy Giuliani's disbarment with the District of Columbia Court of Appeals.

Respondent's brief was filed on July 19.

He argues that no violations were proven and that a sanction less than disbarment should be imposed if the Court disagrees.

Notably, Disciplinary Counsel relies on the precedent of the famous case of the judge who filed a $54 million suit against a dry cleaner over a lost pair of grey pants.

Disciplinary Counsel's statement of facts

The day after the 2020 presidential election, Respondent Rudolph W. Giuliani initiated a coordinated effort on behalf of the Trump campaign to challenge the results in as many as ten states. FF 9-10. His goal was to raise similar claims that might be combined in a single proceeding to be ultimately heard by the Supreme Court of the United States. When he embarked upon this effort, he had not gathered any facts that would support such claims. FF 9-10. Mr. Giuliani later articulated his theory behind the litigation in an oral argument before United States District Court for the Middle District of Pennsylvania—that there was “widespread nationwide voter fraud” that occurred in Pennsylvania and “at least ten other jurisdictions.” Bd. Rpt. 17. Mr. Giuliani had no factual basis for his theory, but nevertheless insisted that nationwide election fraud must have been executed by some undefined cabal, presumably affiliated with the Biden campaign or the Democratic party—the unspecified "they."

[T]his is not an accident. You’d have to be a fool to think this was an accident. You’d have to be a fool to think that somebody woke up in Philadelphia and Pittsburg and in Milwaukee and in Detroit and in Phoenix and all the way in Las Vegas and then way back in Atlanta and they decided, oh, we’re going to shut out all the Republicans today, we’re not going to let them see a single absentee ballot. DCX 08 at 0018; Bd. Rpt. 17 n.12. Having concocted a story of widespread fraud, Mr. Giuliani went in search of viable legal theories and facts to support it. He found neither.

Mr. Giuliani oversaw the Trump campaign’s election litigation nationwide, and he personally litigated the case in Pennsylvania. That case began with a call from a member of the campaign complaining about the ability of election observers to observe the canvassing (i.e., processing) of mail-in ballots in Philadelphia. To ensure social distancing during the pandemic, election observers in large counties like Philadelphia were kept at a distance from the election workers canvassing mail - in ballots, which prevented the observers from reading the outer envelopes containing the ballots. FF 11. When in his argument, quoted above, he referred to “not let[ting] them see a single absentee ballot,” Mr. Giuliani was referring to these Observational Barriers in Philadelphia and elsewhere. Observational Barriers subsequently proved to be a focus of his case in Pennsylvania.

Mr. Giuliani went to Philadelphia and worked with a Pennsylvania lawyer, Ronald Hicks. FF 12-14. Together, they seized upon another grievance about the 2020 election in Pennsylvania: the inconsistent use by different counties of “Notice and Cure” procedures for defective mail-in ballots. Pennsylvania had adopted legislation in 2019 to permit any voter to vote by mail. Because of the pandemic, nearly one-third of the voters in the 2020 general election availed themselves of this option. FF 2. Since this was a new process, some voters failed to properly fill out the outer envelope, which contained the inner “secrecy” envelope, which contained the ballot. An issue arose as to whether election officials who spotted a mistake on the outer envelope, e.g., a voter forgot to sign the required declaration, could provide the voter notice and the opportunity to cure the mistake. The Pennsylvania Supreme Court had ruled that the legislation establishing the right to vote by mail did not mandate Notice and Cure procedures, but it did not rule they were prohibited. The Pennsylvania Secretary of State encouraged counties to provide the opportunity for Notice and Cure. Some counties did; others did not. FF 4.

Having identified two procedures they might challenge—Observational Barriers and Notice and Cure—the question for Mr. Giuliani and his team was to identify a legal theory. Pursuant to the Elections Clause, U.S. Const. art. I, § 4, cl. 1, presidential elections are run by the states. The procedures Mr. Giuliani intended to challenge were state procedures. The logical place to challenge them was in state court, which had expedited proceduresfor election contests. Pennsylvania, however, liberally construes election law in favor of the right to vote. HC Rpt. 32. For example, the Pennsylvania Supreme Court had ruled before the election that election boards were not authorized to compare the signatures on mail-in ballot envelopes with those on voter registration forms, and that the election observers who were
permitted to be present during the canvassing of absentee ballots had no authority to challenge those ballots. FF 5; In re Nov. 3, 2020 Gen. Election, 240 A.2d 591 (Pa. 2020). State courts had also ultimately proved unwilling to rule that Observational Barriers violated state law. FF 7. Mr. Guliani’s goal was to narrow, not broaden, the right to vote in an attempt to offset Biden’s 80,000-plus vote majority. With the advice of Mr. Hicks, who was experienced in Pennsylvania election contests, Mr. Giuliani believed filing in state court was “a lost cause.” FF 12.

The obstacles to bringing an action challenging an election in federal court were significant. Federal courts are courts of limited jurisdiction, so there needed to be a federal cause of action, arising from the Constitution or some federal statute. The initial complaint included claims brought under the Electors (art. II, § 1, cl. 2) and Elections (art. I, § 4, cl. 1) Clauses, but these claims had substantial and obvious standing problems. The Clauses do not confer rights on any persons; they allocate the authority to conduct elections between the federal and state governments. Mr. Giuliani’s argument was that the Constitution reserved to the state legislature the placing of Observational Barriers and the decision whether to allow Notice and Cure. In the absence of a state legislative action, he argued, the officials who ran elections had no authority to employ these procedures. While Electors and Elections Clauses claims were incorporated in the complaints eventually filed in the Middle District of Pennsylvania, the Third Circuit had ruled prior to Mr. Giuliani’s oral argument that candidates and voters lacked standing to bring such claims. Bognet v. Sec’y Commonwealth of Pennsylvania, 980 F.3d 336, 348-53 (3d Cir. 2020), cert. granted, judgment vacated as moot sub nom., Bognet v. Degraffenreid, ___ U.S. ___, 141 S. Ct. 2508 (2021); HC Rpt. 23-24, 28-29. These claims were therefore not actively pursued, but only asserted to preserve the issue should the Third Circuit be reversed. DCX 13 at 0017.

The other claims, and the ones Mr. Giuliani pursued vigorously, were violations of his clients’ civil rights, pursuant to 42 U.S.C. § 1983. Mr. Giuliani represented the Trump campaign, and he rounded up two voters whose absentee ballots had been rejected and who did not vote in counties that permitted Notice and Cure. His claim was that the Observational Barriers interfered with the ability of election observers to meaningfully observe the opening and counting of ballots which led to a fraudulent counting that interfered with the right to vote, thereby depriving the Trump campaign of due process. Because different counties had different Observational Barriers, which varied with the footprint of the building in which the canvassing occurred, the barriers were also alleged to violate Equal Protection. Similarly, the Notice and Cure provisions were alleged to violate Equal Protection and Due Process because different counties had different standards with respect to the treatment of defective ballot envelopes. Mr. Guiliani sued seven counties that did permit Notice and Cure and that would have permitted his individual clients to cure their defective ballots had they lived in one of those counties. He did not sue the two counties that had rejected the ballots of his individual clients, and which did not offer Notice and Cure. FF 31.

Versions of these claims were employed in three complaints filed before Judge Brann in the Middle District of Pennsylvania: the Initial Complaint, a First Amended Complaint, and a Second Amended Complaint. Mr. Guiliani actively participated in drafting the Initial Complaint, filed on November 9, 2020, six days after the election. FF 13-14. It contained seven counts alleging Due Process and Equal Protection and Electors and Elections Clauses violations. FF 13. The defendants were the Pennsylvania Secretary of State and the election boards of seven counties. FF 13. The requested remedy was for the federal court to enjoin the certification of the results that included “cured” ballots and mail-in ballots canvassed without close observation. Bd. Rpt. 15. Since the defendant county election boards included the largest counties in the state and since almost one-third of the voters cast their votes by mail, this would have meant rejecting hundreds of thousands of mailin ballots. Mr. Guiliani did not sign the complaint because he was not admitted in the Middle District. FF 14. Mr. Hicks signed, but after filing it, he immediately withdrew. FF 15.

Six days later, on November 15, 2020, plaintiffs filed the First Amended Complaint. The provenance of this complaint is somewhat mysterious; Mr. Giuliani, ostensibly in charge of the litigation, appeared to know nothing about it and did not agree with its approach. FF 15. The First Amended Complaint eliminated the Observational Barriers claims and some of the Notice and Cure claims, alleging only Equal Protection (but not Due Process) violations, because different counties had different standards with respect to Notice and Cure, and Electors and Elections Clauses violations. It sought the same relief but deleted the request to enjoin the certification of ballots canvassed without close observation. Hence it was only asking that the “cured” ballots in the seven counties be excluded as a remedy for the Equal Protection violation. Bd. Rpt. 15.

Two days later, the district court admitted Mr. Giuliani pro hac vice, and he personally argued in opposition to a motion to dismiss the First Amended Complaint. By the date of this argument, November 17, Mr. Giuliani had drafted, but not yet sought leave to file, the Second Amended Complaint, which added back the allegations about the Observational Barriers (and a few additional counts). FF 16; Bd. Rpt. 15-16. Mr. Guiliani’s argument was that there was widespread election fraud, including in Pennsylvania. He focused primarily on the Observational Barriers—claims that were not part of the First Amended Complaint, the dismissal of which was the ostensible subject of the argument. FF 25. He was, therefore, actually arguing for the court to accept the Second Amendment Complaint, which he intended to and did file the following day. Bd. Rpt. 16. He claimed to have “newly learned facts” and that “we have twice as much evidence this week. And it’s not just here, all over the country.” Bd. Rpt. 17. In language quoted in the Board Report at length, he claimed that because of the unobserved canvassing of the mailin ballots, the election had been stolen and that he had evidence of “ten times” more fraudulent votes than he needed to offset the 80,000-plus Biden margin of victory. In fact, he claimed that, after limited discovery and statistical analysis, he would be able to show 1.5 million votes were counted in the seven defendant counties in violation of Pennsylvania law. He said he would seek to have Trump declared the winner and the recipient of all of Pennsylvania’s electoral vote. Bd. Rpt. 18. His argument was essentially that there was a presumption of irregularity: the existence of Observational Barriers, even though they affected equally Republican and Democratic observers, inevitably led to the counting of illegal votes for Biden because observers were not close enough to detect the fraud. However, he offered no evidence that a single mail-in vote had been improperly counted. FF 27-29, 32.

When he filed the Second Amended Complaint on November 18, the day after the argument, he added an allegation that the seven defendant county election boards were controlled by Democrats and engaged in a deliberate scheme of intentional and purposeful discrimination in favor of Biden over Trump. This scheme was supposedly accomplished by preventing Republican and Trump Campaign representatives from observing the canvassing of the mail-in ballots so that they could not see ballots that were counted for Biden but that should have been disqualified. Bd. Rpt. 19-20. The relief requested was to enjoin the election certification. In the alternative, the complaint sought to enjoin the certification that included ballots canvassed without close observation or that had been “cured.” The Second Amended Complaint also requested that all the votes cast be thrown out and that the Pennsylvania General Assembly decide who would receive the electoral vote. Bd. Rpt. 20-21.

Mr. Guiliani also filed, a day after the Second Amended Complaint, on November 19, a motion seeking a temporary restraining order that would have barred the defendants from certifying the election results pending resolution of the litigation. Bd. Rpt. 16.

The various complaints set forth 26 “factual allegations” to support these claims. The Board sets them all out at pp. 22-26 of its Report. None of them put forward even a scintilla of evidence that mail-in ballots were fraudulently counted, or assuming the allegations were true, approached the quality and quantity of evidence that could possibly justify the sweeping remedies Mr. Guiliani sought. Most of them have nothing to do with Observation Barriers or Notice and Cure. Even if all the allegations were proven, they would have established no more than a few instances of garden variety mistakes in following election rules. None of them established that Trump out-polled Biden or that Biden’s 80,000 plus margin of victory might be offset. Bd. Rpt. 26; FF 21.

On November 21, 2020, Judge Brann dismissed the First Amended Complaint, which was the operative complaint as of the date the motion to dismiss was argued, and he denied plaintiffs’ leave to file the Second Amended Complaint. He found that Mr. Guiliani had presented only “strained legal arguments without merit and speculative accusations, unpled in the operative complaint and unsupported by evidence.” FF 22.

Mr. Guiliani appealed Judge Brann’s denial of leave to file the Second Amended Complaint to the United States Court of Appeals for the Third Circuit. FF 19. That court affirmed Judge Brann’s decision, specifically holding that the Second Amended Complaint did not contain a sufficient factual basis to state a facially plausible claim for relief. FF 20. The Third Circuit wrote that the complaint “never alleged that any ballot was fraudulent or cast by an illegal voter. It never alleges that any defendant treated the Trump campaign or its votes worse than it treated the Biden campaign or its votes. Calling something discrimination does not make it so.” FF 23

Sanction

Unlike the New York court, the Board was reluctant to consider the context and all the consequences of Mr. Guiliani’s actions. This Court should not be so timid. First, Mr. Guiliani admitted that his advocacy in Pennsylvania was part of a larger scheme to overturn the election results. He planned to do so in as many as ten states. Second, the standard elements of sanction analysis, such as the seriousness of the misconduct and the resulting harm to others, requires examination of the context and all the consequences of a lawyer’s unethical behavior. Not since the Civil War has the losing side of a national election refused to accept the results. Lawyers who use their privilege to advance the undermining of the Constitution— which they have sworn to uphold—should expect to receive the most serious sanction in response.

Access to briefs  here. (Mike Frisch)