By Scott Kaspar
Originally published in Newsmax
On Aug. 23, former New York City mayor Rudy Giuliani surrendered to authorities at the Fulton County Jail in Atlanta, Georgia.
His alleged crime? Representing his client, former President Donald Trump.
Did lawyers across the country immediately come to his defense to express outrage over the indictment?
Did the American Bar Association put out a statement about the chilling effect an indictment like this will have on lawyers’ ethical obligations to be zealous advocates?
Did President Biden, a former lawyer who taught constitutional law at Widener University for nearly two decades, condemn the indictment?
Pundits on CNN did express outrage, but not about the indictment.
They filled an entire segment of live television breathlessly talking about the private jet that brought Giuliani to his arraignment, but not one word about the alleged crimes underlying that arraignment.
What about Republicans?
What did they have to say about Giuliani’s indictment?
Just hours after Giuliani’s indictment, the RNC and Fox News hosted the first Republican presidential debate. Did Giuliani’s indictment come up at all over the course of the entire debate?
No. Not word one.
Giuliani’s own words spoken that day during an interview with Newsmax capture the reason why every lawyer in America should be outraged:
“They operate like communists . . . this was a terrible thing. And it’s not because of me . . . look at all the attorneys that are being prosecuted here. I’m basically being prosecuted for doing what I’ve done . . . over and over again as part of my profession. And in my case, I believe I was defending and advocating for an innocent man.”
There is a constitutional right to counsel in criminal cases.
The Sixth Amendment guarantees it. And that guarantee does not waiver if the defendant is a controversial figure like President Trump. If the Sixth Amendment says that President Trump has a right to counsel, then his lawyer — Rudy Giuliani — has a right to carry out that job without the fear of later being indicted for doing that job.
There also is a constitutional right to petition the government. And it’s not buried in the Constitution – no, it’s right there in the First Amendment:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Whether President Trump’s claims of voter fraud in Fulton County are true or not does not matter, President Trump had a constitutional right to challenge the election.
And Rudy Giuliani used the procedures — demanding recounts and lobbying state legislatures—that lawyers typically use when challenging election results.
Indicting lawyers for doing their job not only flies in the face of the First and Sixth Amendments, but it will have a chilling effect on lawyers’ eagerness to take on clients who are not aligned with the current party in power.
Thankfully, not all lawyers have been silent.
Famed lawyer and former Harvard professor Alan Dershowitz said that what Giuliani did following the 2020 election is no different than what he and other lawyers did on behalf of Al Gore in 2000.
According to Dershowitz, the indictment against Giuliani could be applied against him for his work in the U.S. Supreme Court case ofBush v. Gore, 531 U.S. 98 (2000).
“According to the indictments, these are now crimes,” Dershowitz said.
Attorney and former U.S. Sen. Alfonse D’Amato, R-N.Y., spoke out on Newsmax:
“Rudy Giuliani and I are not particularly close. He was a great mayor and was a great U.S. attorney. We have our differences. But I’ll tell you, this is wrong, and it threatens America’s democracy.”
“This is not law enforcement. This is terrorizing the opposition, and that’s what’s going on. You arrest or charge a lawyer because he is representing someone who believes the election was stolen? No. The election may or may not have been stolen but you don’t go after and then indict the lawyer. That is absolutely BS.”
If the indictment against Rudy Giuliani is not faced as a great American injustice, it will be repeated. And it will destroy the American system of justice.
Scott Kaspar is a lawyer licensed in Illinois, Iowa, Colorado, and California, and before the U.S. Patent and Trademark Office. He regularly appears on media to provide legal analysis. Kaspar also is the Publisher of Illinois Review, the largest conservative news source in Illinois.