Hours before a violent mob stormed the Capitol on Wednesday, Rudy Giuliani stood before a crowd in front of the White House. Standing next to John Eastman, a law professor who has helped file several of Trump’s failed lawsuits attempting to overturn the election, Giuliani repeated his false claims that “criminals” stole the election from Trump, invoking conspiracy theories about stolen ballots and voting machines.
“Let’s have trial by combat!” Giuliani yelled. The crowd cheered.
In the weeks since the election, Giuliani was joined by Eastman, Sidney Powell, Lin Wood and Jenna Ellis in shoring up the president’s conspiracy theories about the vote. In court filings some alleged mass voter fraud without evidence, leading dubious judges to either quickly throw out the lawsuits or force the attorneys to backtrack on their claims under questioning.
Even with the myriad of legal losses, the fraud claims were spread by the president and embraced by his base. Lawyers said the election lawsuits, and the conduct of Trump’s legal team, played a role in the chain of events that culminated in Wednesday’s violent mob, which has since spurred talk of removing Trump from office.
Barry Berke, a partner with Kramer Levin who worked on last year’s impeachment proceedings against Trump, said the riot was “a natural extension of some of the conduct we’ve seen, given the willingness of certain counsel to make statements both publicly and in court filings that have no support in fact and are demonstrably false, that do nothing other than raise distrust of the election system and heighten the tension of those who lost the election.”
“The slippery slope is what we saw yesterday, where the president’s lawyer is actually standing up and saying, the only remedy now is trial by combat. And that was definitely an extension of what the president was saying, and it contributed to the incitement of violence,” said Berke, who also worked on Pennsylvania’s postelection litigation. “So it is really unfortunate, and no one in our profession should ever have anything to do with actions such as those that resulted in the horrific events of yesterday.”
Since the riots, Giuliani has tried to distance himself from the violence. In a tweet Thursday, he claimed his “movement values respect for law and order and for the police.” And on his radio show later that afternoon, he suggested without evidence that those he spoke to in the crowd earlier Wednesday were not the same people who went on to ransack the Capitol.
The excuses he offered for the mob are in line with those he presented alleging a fraudulent election: Devoid of evidence, lacking in reality and made in defense of a president who is similarly detached from the facts.
Federal judges said as much as they dismissed lawsuit after lawsuit seeking to overturn Joe Biden’s win in the November elections. Time and time again, judges appointed by presidents of both parties—and some by Trump himself—found they could not invalidate millions of votes as the lawsuits asked them to.
In public statements, without the guardrail of a court, Trump’s attorneys have gone even further. Wood, a Georgia attorney who filed individual lawsuits over the election, used his Twitter account to call for the arrest and execution of Vice President Mike Pence for refusing to follow unconstitutional pleas to reject slates of certified electors from certain states. Wood also called for Chief Justice John Roberts Jr.’s resignation, falsely claiming the justice had ties to Jeffrey Epstein. Twitter has since permanently suspended Wood’s account.
Powell, who was initially named as a member of the president’s legal team but later filed lawsuits on her own after suggesting mass voter fraud ahead of the Georgia U.S. Senate runoff elections, similarly spread false claims about fraud and voting machines. At least one company, Dominion Voting Systems, is now preparing a defamation suit against her.
Philadelphia election attorney Adam Bonin, who represented the Democratic Party in numerous cases involving challenges from the Trump campaign, said that some of the president’s lawyers crossed a line with the repetitive lawsuits and baseless claims.
“As lawyers, we’re supposed to be gatekeepers. We have obligations to the law. Obligations to society that have to weigh in as opposed to just looking at what does your client want,” he said, adding that attorneys need to check whether they are filing are baseless claims.
However, Bonin said not all attorneys representing Trump crossed that line. He pointed to attorneys such as Linda Kerns and Jonathan Goldstein, who raised challenges regarding the application of Pennsylvania’s new election code, and were explicit that they were not raising fraud allegations.
“They were doing their job there,” Bonin said. “I think we need to distinguish that from what Mr. Giuliani did in the Middle District proceedings and the crazier stuff like challenging the constitutionality of [the state’s Election Code enacted in 2019] after two elections had passed, trying to throw out millions of votes.”
Bonin said the later litigation was “opportunistic and entirely outcome driven.”
“I think it was irresponsible,” Bonin said. “I think part of what’s noteworthy about these later cases, it’s not who did them, it’s all the firms who didn’t touch them.”
Conspicuously absent from Trump’s postelection litigation were the lawyers who regularly represented the president in court. Consovoy McCarthy, the boutique firm representing Trump in his challenges against House subpoenas for his tax returns, was absent, as was Kasowitz Benson Torres, another go-to firm for Trump.
The few bigger name firms that did work on the litigation, such as Porter Wright Arthur & Morris, ultimately withdrew under public pressure. Another firm, Jones Day, released a statement claiming its attorneys were not representing the president in any election litigation.
The absence of quality attorneys with the resources of a large law firm at times resulted in bad lawyering. Filings from Powell and Wood often had embarrassing typos and factual errors; Giuliani, in his first federal court appearance in decades, asked the judge what strict scrutiny meant.
But at least one attorney who initially defended Trump is now fed up with him: Jerome Marcus, who represented Trump in a Pennsylvania postelection lawsuit, on Thursday morning filed a motion to withdraw from the case, saying, “the client has used the lawyer’s services to perpetrate a crime and the client insists upon taking action that the lawyer considers repugnant and with which the lawyer has a fundamental disagreement.”
Some of the Trump-aligned attorneys may now be facing penalties from federal courts. Lawyers for Detroit are asking a federal judge to issue sanctions against Powell and other members of her legal team over a lawsuit she filed alleging fraud.
“In a case of this magnitude, intended to upend the election of the President of the United States, the Plaintiffs owed this Court the highest degree of due diligence before filing suit,” reads a motion filed Tuesday. “Instead, there are only two possibilities—these six Plaintiffs did not read the Complaint and the expert reports supporting it; or, they did read the Complaint and the faulty expert reports and did not care that false representations were being made to this Court. Either way, this case cries out for sanctions to deter this behavior in the future.”
U.S. District Judge James Boasberg in the District of Columbia on Thursday issued an order asking attorneys who filed a complaint seeking to block Congress from certifying Biden as the winner of the presidential election to say why they should not face sanctions over the suit. Boasberg earlier this week rejected the legal challenge, writing: “Courts are not instruments through which parties engage in such gamesmanship or symbolic political gestures.”
Beyond court sanctions or bar complaints, some have called for Giuliani to face criminal charges for his remarks, alleging that he helped incite the riot. Berke said that he believes there’s an open question about whether any crimes were committed.
“Certainly there are issues about whether or not a member of the bar could be disciplined or disbarred for acting as the president’s counsel has, both in raising the false issues about the election and potentially inciting violence yesterday,” Berke said.