A case in point: White House counsel Pat Cipollone lied during the Senate impeachment trial when he said Republicans were not allowed in the secure briefing room during House impeachment hearings. Confronted by this blatant untruth, one of Trump’s lawyers, Robert Ray, declared, “I’m not interested in wading in the procedural weeds here.”
Stop right there. Ray knows Cipollone lied; Cipollone knows he has been caught. Neither has corrected the assertion or apologized to the Senate. Some senator should send a note up to Chief Justice John G. Roberts Jr. asking him to admonish Cipollone.
In a court, the judge would not only intervene but very possibly hold the lawyer in contempt for such a blatant misrepresentation. Should Cipollone not come clean, his home-state bar should investigate. It is one thing to get carried away and overstate or misstate something but quite another to allow a known falsehood to go uncorrected.
We have yet to hear from Alan Dershowitz at the Senate trial, but fact checkers should be at the ready. Philip Bobbitt at Lawfare blog observes that Dershowitz is claiming (falsely) that because the president is supreme in foreign policy, he can hold up funds appropriated by Congress; therefore he could withhold aid from Ukraine. Dershowitz argued in a statement last week: "Consider the actual situation that former President Barack Obama created when he unilaterally made the Iran deal and sent that enemy of America billions of dollars without congressional approval.”
For starters, the argument that Democrats sent Iran U.S. money is a four-Pinnochio lie that Trump has been pushing for a while. Obama released frozen assets owned by Iran pursuant to discretion afforded to him under sanctions legislation. (I did not favor the Iran deal as negotiated, but unfreezing the money was in no way, shape or form unconstitutional.)
As bad as that factual misstatement, Dershowitz’s assertion that the president can do whatever he wants with aid is flat wrong and contrary, in this context, to the Impoundment Control Act. Moreover, the reason for withholding aid can certainly be an impeachable act, as Bobbitt points out:
It is true that an impeachable “abuse of power” can’t simply consist in using the powers of the executive for personal, political gain; that happens all the time. Abuse of power, for impeachment purposes, must consist in corruptly using those powers for personal, political gain. If the president in fact withheld military assistance authorized by Congress in order to gain an advantage over former Vice President Joe Biden, that was an unlawful and corrupt abuse of power.
In other words, a president can sign an executive order for emergency relief for a key battleground state, knowing it will help him in an election. But he cannot threaten to withhold aid unless the state’s governor announces state police is investigating his political opponent. The inapt analogy to legitimate exercises of presidential authority is flatly dishonest. (“The fact that the GAO confirmed that this was a violation of law is not, as Dershowitz claims, irrelevant,” Bobbitt explains. “And the claim that other presidents violated the same provisions — without a showing that they did so for personal, political reasons — has nothing to do with the question of impeachment.”)
Perhaps Dershowitz is not intentionally misleading the public and the Senate. He might be an exceedingly incompetent and ignorant lawyer, but I doubt that. I suspect he has gotten so used to saying whatever lame argument pops into his head when interviewed by sycophantic conservative radio and TV hosts that he has forgotten the ethical standard to which all attorneys must abide in a legal setting. (He shouldn’t be lying anywhere, but for our purpose let’s just focus as his professional utterances in defense of a client in a legal setting.)
It is time for 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.