Justice In This Country Is Not Dispensed Impartially Between Democrats And Republicans

Back in February 2020 I had a post asking the question whether justice in this country is “dispensed impartially” as between Democrats and Republicans, at least in cases involving significant political issues. The post was inspired by a letter that had been written on February 11 by then-Senate Minority Leader Chuck Schumer on the occasion of the sentencing of Roger Stone. Line Justice Department prosecutors had recommended a (wildly excessive) sentence of 7 to 9 years for Stone (for process crimes related to the Congressional investigation of the Russia collusion hoax), but top (political) Justice officials had just withdrawn that recommendation and urged a much lighter sentence (in accordance with normal guidelines). That prompted Schumer to claim “improper political interference” in the prosecution and to assert that “[t]he American people must have confidence that justice in this country is dispensed impartially..” (As it turned out, shortly after my post Stone was sentenced to 40 months in prison; his sentence was then commuted by President Trump in December 2020.)

But my post used the occasion of the Stone controversy to compile a list of significant flimsy politicized prosecutions of Republicans by Democratic prosecutors, each in situations with the potential to swing control of some public office or legislative body to the Democrats. That list included: the prosecution of U.S. House Majority Leader Tom DeLay by the Democratic DA of Travis County (Austin), Texas (indicted in 2005, initially convicted in 2010; conviction reversed without possibility of retrial by the Texas Court of Criminal Appeals in 2014; but meanwhile after the indictment the Republicans lost control of the U.S. House in the 2006 election); the prosecution of U.S. Senator Ted Stevens of Alaska (indicted in 2008 by the partisan federal prosecutors in D.C.; initially convicted in 2008 8 days before Election Day; defeated narrowly for re-election in 2008, which gave the Democrats the 60th vote to pass Obamacare; conviction vacated by the trial judge in 2009 for improper withholding of evidence by the prosecutors); the prosecution of New York State Senate Majority Leader Joe Bruno by federal prosecutors in the Northern District of New York (indicted in 2008; initially convicted in 2009; conviction reversed by the Second Circuit in 2011; acquitted on retrial in 2014; control of New York State Senate, then narrowly held by Republicans, has since swung to the Democrats); and the prosecution of Republican Governor Bob McDonnell of Virginia (indicted by partisan federal prosecutors in 2013, quickly followed by Republican loss of the Virginia governorship in the 2013 election; initially convicted in 2014; conviction reversed by the U.S. Supreme Court in 2016).

My February 2020 post contained several additional examples of the genre. It also invited readers to submit an example of the reverse phenomenon — that is, a situation where a partisan Republican prosecutor had indicted a Democrat politician on a weak charge in a situation with the potential to swing political control of a significant public office or legislative body. Nobody ever submitted such an example, and I have been unable to find any. But my invitation remains open.

Which brings me to the events of the past few days in the arena of politicization of the criminal prosecution system and the courts to the advantage of Democrats. I’ll discuss three: (1) the suspension on June 24 by the New York Appellate Division, First Department, of the law license of Rudy Giuliani over events occurring in his representation of President Trump in the aftermath of the 2020 election; (2) the indictment on July 1 by a New York County grand jury (at the behest of District Attorney Cyrus Vance, Jr.) of the Trump Organization and its CFO, Allen Weisselberg, on numerous counts of alleged “tax fraud” and related charges; and (3) the sentencing and bar suspension of former FBI attorney Kevin Clinesmith for his role in seeking FISA warrants to spy on Carter Page, as reported on June 28.

The Suspension of Rudy Giuliani’s Law License

Giuliani’s law license was suspended by a panel of New York’s Appellate Division, First Department, in an Opinion on June 24. The Appellate Division, an intermediate appellate court, has jurisdiction for such license suspensions. The suspension is “interim” — akin to a preliminary injunction — indefinite in length, with Giuliani having a right to request a full hearing to seek to reverse the result. If Giuliani doesn’t request the hearing and obtain the reversal, it looks like the suspension lasts for life.

Clearly, Rudy Giuliani is someone with a long and distinguished career. He was a high-ranking lawyer in the Justice Department in the early 1980s, and then the U.S. Attorney for the Southern District of New York (which includes Manhattan) from 1983 to 1989. Then he was Mayor of New York City from 1994 to 2001, during which time there was a dramatic decline in the crime rate and the City began a renaissance after decades of decline under Democratic rule. Since 2002 Giuliani has returned to the private practice of law.

During the 2016 campaign, Giuliani became a known backer of Trump for President, and thereafter he represented Trump in various personal matters during his term in office, including matters relating to the two attempted impeachments. In other words, Giuliani made himself an obvious target of those who hated Trump and thought it was OK to use the justice and court system to attack Trump and anyone associated with him. In the aftermath of the 2020 election, Giuliani represented the Trump campaign in election-related litigation, and it is that representation that has given rise to the events underlying this license suspension.

At pages 3-4 of the Opinion, the court goes through the procedure that can lead to the suspension of an attorney’s license. It starts with a complaint to a Grievance Committee, one of which exists for each of the four Appellate Divisions in the state. “Attorney Grievance Committees, either upon receipt of a written complaint, or acting sua sponte, are charged with investigating misconduct through various means. . . .” These Grievance Committees are where a member of the public can go to complain about attorney misconduct — say, that the attorney has bungled a case or stolen money from an escrow fund. Was there actually a complaint here about Giuliani’s conduct? The Opinion doesn’t say. What the Opinion does say is that the decision is the result of a “motion” made by the Grievance Committee. OK, exactly how many attorneys get their licenses suspended without any complaint ever being made to the Grievance Committee? I’ve certainly never heard of it. What is clear is that no one was harmed in any tangible way by Giuliani’s alleged misconduct.

The gist of the case against Giuliani is alleged false statements that he made in representing the President. What is the context of the statements?

[The] AGC relies upon statements that respondent made following the 2020 election at press conferences, state legislative hearings, radio broadcasts (as both a guest and host), podcasts, television appearances and one court appearance.

So let’s get this straight: Giuliani’s law license is being suspended for statements that the court finds to be false, none of them made under oath, and only one of them even made in court. Well, let’s look at that one. The court appearance in question took place on November 17, 2020 in the federal Middle District of Pennsylvania. Apparently at the hearing Giuliani repeatedly stated that Trump was pursuing a claim for fraud relating to the election in Pennsylvania. (“Respondent repeatedly represented to the court that his client, the plaintiff, was pursuing a fraud claim, when indisputably it was not.”). The problem is that Trump’s complaint had been amended just before the hearing to drop the claim for fraud. Counsel for the Pennsylvania Secretary of State immediately pointed out that fact to the judge. Giuliani appeared unaware of it. But the judge had the actual pleadings in front of him. Clearly, Giuliana was confused. But was anybody actually misled by this?

Other than that statement, everything else is First Amendment-protected, out of court, not under oath statements, that didn’t cause any tangible harm to anyone, and as to which the Opinion doesn’t name any actual complainant other than the Grievance Committee itself. Alan Dershowitz comments at The Hill (June 28):

Rudy Giuliani has been suspended from the practice of law without a hearing, based largely on First Amendment-protected statements he made outside of any court of law. A panel of the Appellate Division of New York suspended the former mayor of New York and former United States Attorney last week without giving him an opportunity to dispute the charges against him at an evidentiary hearing. Moreover, he was suspended largely on the basis of statements he made not in court but on television. 

[T]here are no compelling arguments why anyone — lawyer or non-lawyer — should be denied the full protection of the First Amendment when he or she participates in the marketplace of ideas on television, podcasts or other media, even when representing a client. Any statements made in such a public context can be rebutted in the marketplace of ideas, and so the public needs no special protection from statements made by lawyers…

And the obvious conclusion:

If these rules were applied across the board fairly, and equitably, thousands of lawyers would be disbarred every year.

But different rules apply to prominent Republicans in politically-charged situations.

Indictment of Trump Organization and Allen Weisselberg

Plank number one in the 2018 campaign of current New York Attorney General Letitia James was her promise to investigate and prosecute Trump for anything and everything she could find. That right there sounds to me like a far more serious ethical violation than anything committed by Rudolph Giuliani, but it seems that our partisan Democrat Grievance Committees don’t see it the same way. James took office in January 2019, at which point Manhattan DA Cyrus Vance had also already been investigating Trump for some unknown period of time.

The combined AG/DA investigation periodically came into public view as the prosecutors very loudly demanded access to Trump’s tax returns, apparently thinking that they were the key to unlocking all the nefarious schemes and evasions in the Trump empire. Trump resisted in every way he could, but he ultimately lost the battle in October 2020 when the Second Circuit ruled that Vance could get the documents. (The Supreme Court denied review of that decision in February 2021.). So clearly, Vance’s office has had the tax returns for at least several months.

And then yesterday, the long awaited indictment from the New York County grand jury finally came down. Drum roll!!!! And the answer is, there is no indictment of Trump personally. There is absolutely nothing in the indictment that arises out of anything that might have been in the Trump tax returns. Instead, all we find is an indictment of one individual, Allen Weisselberg, the long-time CFO of the Trump Organization, for the shocking crime of failing to fully report fringe benefits as income. Indicted along with Weisselberg is the Trump Organization, but not Trump himself. The whole thing is basically about a corporate apartment and two company cars. The allegation is that the corporate apartment was actually Weisselberg’s exclusive and principal residence, and therefore its full rent — about $100,000 per year over a 17 year period — should have been included in Weisselberg’s income.

If, as Dershowitz says, “thousands of lawyers” would be disbarred every year if Giuliani’s conduct is a disbarrable offense, then the number who would be indicted every year for tax fraud for using a company car for personal purposes without precisely allocating the usage would clearly be in the millions. Or, make that the tens of millions. The apartment may be a more significant issue, but the indictment doesn’t tell us nearly enough about the facts to figure out how serious the issue might be. The indictment alleges in conclusory fashion that Weisselberg really lived full-time in the New York City corporate apartment. But it also concedes that for most of the period in question Weisselberg owned a home in a town called Wantagh. Wantagh is not a second-home community, but rather a close-in commuter suburb from which hundreds of people commute into Manhattan every day. If Weisselberg mainly lived in Wantagh, but stayed in the corporate apartment from time to time when he had to work late, generally that would be considered a legitimate business expense, and not personal income.

And now, this kind of thing is subject to a criminal tax fraud complaint, rather than just being something that could be audited, and maybe result in some penalties if there were abuse? Well, that’s the way it works if you are too close to the Republican who needs to be taken down for political purposes. The New York Post comments in today’s edition:

It’s a travesty, not a triumph: Manhattan District Attorney Cy Vance’s long-running investigation (with New York Attorney General Letitia James) into the Trump Organization just produced … indictments for minor offenses that almost never bring criminal charges. . . . But this is Donald Trump (well, his company), so normal standards didn’t apply. . . . If Vance had any evidence suggesting serious fraud (as press leaks long suggested), he’d have included them already. . . . When it comes to Trump, liberals are giving Wile E. Coyote a bad name. We’ll get him this time! Just you wait!

I suppose the theory is that Weisselberg will now “flip” and deliver the big kahuna, Trump. But that’s what they thought about Roger Stone, Paul Manafort, Michael Cohen, Michael Flynn, George Papadopoulos, etc., etc., etc. Has anybody considered that these people just don’t have any goods to deliver? If they couldn’t find anything in the tax returns, where do they expect to find it?

Sentencing of Kevin Clinesmith

Do you recognize the name? Clinesmith is the partisan-Democrat FBI lawyer who played a key role in obtaining FISA warrants to spy on the Trump campaign (via campaign aide Carter Page) and presidency.

How sure am I that Clinesmith is a partisan Democrat? Well, consider this from the New York Times in November 2019:

Shortly after Mr. Trump’s election victory, for example, Mr. Clinesmith texted another official that “the crazies won finally,” disparaged Mr. Trump’s health care and immigration agendas, and called Vice President Mike Pence “stupid.” In another text, he wrote, in the context of a question about whether he intended to stay in government, “viva la resistance.”

Many details of Clinesmith’s misconduct came out in the DOJ Inspector General Report from Michael Horowitz in December 2019. Most notably, Clinesmith doctored an email to be used in an application to renew the FISA warrant, in order to make it appear that Page had not been a source for the U.S. government, when in fact he had been. As summarized by James Freeman in the Wall Street Journal, January 30, 2020:

[I]n 2017, after Mr. Page had disclosed his actual role in the press, Inspector General Horowitz reports that the FBI lawyer said Mr. Page had never had a relationship with the other U.S. government agency and “altered the email that the other U.S. government agency had sent” so that it appeared to state that Page had not been a source. The IG adds that the FBI lawyer then forwarded the doctored email to his supervisor. Shortly thereafter, the supervisor “served as the affiant on the final renewal application, which was again silent on Page’s prior relationship with the other U.S. government agency.”

In August 2020 Clinesmith pleaded guilty to a felony false statement charge arising from this incident. The sentence, imposed by Judge James Boasberg of the federal District Court for the District of Columbia, was probation without jail time. But how about a bar suspension? James Freeman reports in the Wall Street Journal on June 28 that Clinesmith has also now agreed to a “one year” suspension of his law license. But the year turns out to be much less than it seems:

The penalty is even more modest than it initially appears because the suspension is backdated to his conviction so this abuser of government power will be allowed to practice law again this August. Add District of Columbia Court of Appeals Board on Professional Responsibility disciplinary counsel Hamilton P. Fox, III and his assistant William R. Ross to the disgraceful ranks of swamp creatures like Judge James Boasberg who have refused to punish appropriately this federal assault on liberty.

Whose wrongdoing do you think is the more significant — Clinesmith or Giuliani? Well, there are two systems of justice, one for Democrats and one for Republicans.