An effort to parse the various assertions and statements, both legal and extra-legal, of Trump’s “Elite Strike Force Legal Team,” is not merely a fool’s errand, but one that grows by the day. Add in Trump-adjacent insanity, like Lin Wood’s call for martial law, and the task becomes nearly impossible. Yet, one of Trump’s lawyers, Joe diGenova, has stood out for saying something monumentally reprehensible.
Anybody who thinks the election went well, like that idiot Krebs who used to be the head of cybersecurity. That guy is a class A moron. He should be drawn and quartered. Taken out at dawn and shot.
Since diGenova is a lawyer, did he cross the line of legal ethics by suggesting, if not urging with the knowledge that there are some in his camp just loony enough to take his call to violence against former director of CISA, the United States Cybersecurity and Infrastructure Security Agency, seriously and, perhaps, act on it?
The statement is fairly obviously rhetorical hyperbole, the sort of outrageous statement meant to convey diGenova’s views by extreme overstatement. Crazy though it may be, he’s fully entitled to disagree with Krebs and believe him to be completely wrong. This is America, and diGenova has the right to express his batshit crazy opinion.
It’s similarly clear that this is not a “true threat,” to the extent that concept remains viable, and is protected speech under the First Amendment. But as an attorney, diGenova has adopted certain professional limits on speech in exchange for licensure. Even if he can’t be prosecuted for this repugnant speech, that doesn’t mean diGenova, who was admitted in 1970, can’t be disciplined, even disbarred, for violating the Rule of Professional Conduct of the District of Columbia bar.
For his part, diGenova later asserted that his words were never meant to be taken literally, but were just made “in jest.”
Later on Tuesday, diGenova told the Washington Examiner that he meant “no harm” when he said Krebs should be shot. All of that stuff about Krebs being drawn and quartered and/or shot at dawn was clearly a joke and nothing more than hyperbole, he claimed.
“For anyone listening to the Howie Carr Show, it was obvious that my remarks were sarcastic and made in jest. I, of course, wish Mr. Krebs no harm. This was hyperbole during political discourse,” diGenova said.
Mark Zaid, who has been the target of right wing death threats, was unimpressed.
Total lie by DiGenova. No rational person listening to his comments would have taken it as “jest”. No one should accept this excuse.
To be fair, even if diGenova meant these words “in jest,” one would suspect him to realize that he’s got a lot of violent crazies behind him who might not take it that way. Should someone act upon it, the dead Chris Krebs wouldn’t be overly concerned with diGenova’s overheated hyperbole. So did it violate the rules of conduct?
[NYU Legal Ethics Professor Stephen] Gillers pointed to Rule 8.4(b) and Rule 8.4(d).
These say, respectively, that a lawyer commits “professional misconduct” when they “(b) Commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects” or “(d) Engage in conduct that seriously interferes with the administration of justice.”
“With regard to (b), it is not necessary that the lawyer have been prosecuted so long as the act is criminal and it adversely reflects on his ‘fitness,’” Gillers said. “In my view, the comment does reflect on diGenova’s fitness as a lawyer.”
For context, I can’t recall any instance in which anyone asked for Gillers’ opinion where he didn’t come out against the lawyer and find an argument for conduct being unethical. Maybe he just hates lawyers. Maybe his relevance depends on lawyers being unethical. But that’s Gillers for you.
Gillers said there could be a dispute as to whether diGenova’s comment “interfered with the administration of justice,” as stated in Rule 8.4(d).
“To violate (d) the lawyer must interfere with the administration of justice. Krebs is not a judge. He does not himself administer justice. But what Krebs said, and was threatened for saying, is also the subject of court cases where the campaign, diGenova’s client, is a party,” Gillers said. “Those courts are administering justice.”
“So a disciplinary body could find that diGenova’s threats against Krebs for saying the election was fair seriously interferes with the work of the courts in addressing the campaign’s claim that the election was unfair,” he added.
When even Gillers can’t muster an argument that isn’t so absurdly attenuated that it passes the headache test, that’s pretty much the kiss of death to the possibility of attorney discipline. But then, should language like diGenova’s, as an attorney who is engaged in the representation on the issue, be subject to the Rules of Professional Conduct?
In a better legal world, lawyers would not use such inflammatory, violent language in their public statement about matters in which they’re engaged in active litigation. Issues like this should never arise, negating any need to discuss, or even consider, just how awful it is and how awful it should be to breach ethical and disciplinary rules. So diGenova is angry? So what? Lawyers get angry all the time, and yet maintain a level of control over their words so as to not potentially suggest that harm comes to those they hate.
This is different than a straight free speech argument, as it’s not a concern that the First Amendment doesn’t protect reprehensible speech. It does, unless it crossed into a clearly established exception. But when one accepts the limitations on speech that come with a professional license, a different duty is involved, and the limitation is one that’s understood as part of the deal.
While diGenova’s “drawn and quartered” and “taken out at dawn and shot” is protected by the First Amendment, and may not violate existing disciplinary rules, that a lawyer pushes the envelope so far as to give rise to these questions is outrageous and unacceptable. If lawyers can’t control their violent impulses, their outrageous violent speech, then perhaps a rule to prohibit such language will need to be considered. Or repugnant lawyers like diGenova should just get a grip on their emotions and shut the fuck up.