First, a big THANK YOU to Brandi Buchman for pointing out a livestreaming Zoom link to the Rudy Giuliani disciplinary hearing yesterday before the DC Office of Disciplinary Counsel (ODC)
As someone who filed complaints against a couple of “election fraud” attorneys back in early 2021 (which were dismissed by the DC ODC based on the fact that I had “no personal knowledge—i.e., complaint was based totally on the public record), it is refreshing to see that they have become much more open and accommodating of disciplinary complaints that are deemed to be “in the public interest.”
The DC ODC has also made disciplinary hearings open to the public, especially in cases deemed in the public interest. “Public interest” cases currently include Rudy Giuliani and Jeffrey Clark.
Today continued the tedious questioning of Giuliani regarding factual assertions made in his pleadings in the Pennsylvania case of Donald J. Trump for President v. Kathy Boockvar et al., Later questioning involved legal authority, which was solely based on Bush v Gore (2000) and Marks v Stinson (1994). There was even mention of the Independent State Legislature Theory and Moore v Harper.
Hamilton “Phil” Fox, who is questioning Giuliani, is the Chief Disciplinary Counsel. Attorney John Leventhal is representing Giuliani. Jason Horrell is an Assistant Disciplinary Counsel. The hearing panel is composed of Robert Bernius (presiding), Carolyn Murrell, and Jay Brozost.
Giuliani argued that “the facts” were more compelling than his legal theories. The questioning is focused on pointing out how little real evidence Giuliani had among hundreds of affidavits purporting to prove that hundreds of thousands of votes were “stolen.” His basic argument is that he “expected to prove” his case by the time it went to trial. To give a lay analogy, this is like filing a court document alleging the moon is green. You know you can’t “prove” the moon is green with what you have, but you hope to keep everyone busy until your co-conspirators can either launch a moon rocket containing billions of gallons of green paint or install a giant green filter between the Earth and the moon.
Mr. Fox pointed out that Giuliani orally argued that there was a “nationwide conspiracy” to steal the election before Judge Brann (the PA case), which he had neither pled nor had facts to support. Several times Giuliani became defensive and complained about having to “defend myself” against “sneaky questions.” Giuliani also frequently became tangential, prompting his own attorney to (quietly) grab Giuliani’s wrist to get him to STFU and answer the question. At one point, Robert Bernius (who is presiding over the hearing), made a comment about wanting to finish the hearing before Christmas.
Another important issue that was raised is the fact that neither the Judge nor opposing counsel filed for sanctions under Federal Rule 11 does not mean Giuliani is innocent (many of the other “election fraud” lawyers have asserted the same defense). However, Judges are not mandated to request sanctions (this is discretionary) following amendments to Rule 11 in 1993. Moreover, opposing counsel are required to give notice and 21 days opportunity to “fix” a problem before they can file for sanctions. So…this was impracticable in a case that was dismissed sooner than 21 days.
This hearing is part of the “liability phase” of disciplinary proceedings. There will be a non-binding decision when it is concluded, at which time Giuliani will be able to present mitigating evidence before it moves into the sanctions phase.
When the hearing started, there were 600 to 700 people attending. This grew to over 1,000 by 10:30 am (our time). Immediately after lunch the audience was 365, which has now grown to 1,093.
You can follow the hearing here.
Will update when the hearing concludes this afternoon.
UPDATED 12/6 pm
Giuliani argued that he made statements in pleadings and in court “based on information given to me by others.” Some names that were mentioned were Cory Lewandowski and (former Florida AG) Pam Bondi. Giuliani’s attorneys attempted (unsuccessfully) to introduce documents which had not previously been disclosed.
The Committee had questions like (1) why didn’t you use the established procedures for challenging elections in PA? (2) Why didn’t you sue the counties where mail-in votes weren’t counted instead of those where they were counted?
Giuliani insinuated that the Philadelphia “machine” was so corrupt that filing anything there would have been a “lost cause.” There was a lot of discussion about how do distance requirements for observers (which had been previously upheld by the PA Supreme Court) constitute a Constitutional violation?
They finally finished with Giuliani and moved onto Daniel R. Ortiz, a University of Virginia professor of law and Director of the Supreme Court Litigation Clinic. Professor Ortiz has prepared a report, which Giuliani’s attorneys are objecting to. The Bar is hoping to have the report admitted following his testimony. Professor Ortiz gave us law school summaries version of Bush v. Gore and Marks v Stinson. There was also a thorough discussion of the intersection of state and federal law. The suggestion seems to be that the remedy Giuliani was requesting was untenable: A court has the power to issue an injunction against certifying votes, but it doesn’t have the authority to simply throw votes out. Also, there is no precedent for a federal injunction against states certifying their own election results.
Professor Ortiz went into great depth about prior litigation in the Pennsylvania Supreme Court. Apparently the activities that Giuliani was complaining about—that observers had to maintain a specified distance from ballot counters, and the opportunity to cure defective ballots was left to the discretion of individual counties—had already been approved by the PA Supreme Court. Thus, the argument that the election was in violation of state law was false. Moreover, the “evidence of fraud” Giuliani presented had no connection to the 7 counties he was suing. There was also the practical matter of how to determine which ballots were “illegal.”
Additionally, it came out that multiple amended pleadings had been filed in the case. The first amended complaint had dropped out theories of “grand fraud,” which require greater specificity in pleadings. According to Ortiz, “the evidence changed at various time.” Apparently, Giuliani attempted to file a second amended complaint which had added fraud back in. The second amended complaint was never officially filed because by then the case had been dismissed.
Professor Ortiz was asked briefly (Mr. Hamilton said this was not the main issue here) about the authority of the General Assembly (the PA Legislature) to chose electors. The Professor admitted that the issue is “unclear,” but re-iterated that there is no precedent.
This hearing has now been scheduled until the end of next week (Friday, December 16th). It has “bumped” a hearing for someone else. Don’t think I will be able to follow it all day every day, but will check in and update periodically.
Anyone wanting to follow can pick up the daily link from the Bar Disciplinary page.