According to The New York Times, Rudy Giuliani has been seeking $20,000 a day — since the day after the election — to lead the war against reality being waged by President Donald Trump’s lawyers. He denies the number but claims the president wanted to make sure he got paid.
As of Nov. 13, with lawyers withdrawing for both ethical and financial reasons, Rudy was put in charge of the entire legal effort. On Nov. 16, he fired the legal team and replaced it with a lawyer who, on his radio show, had already given the election to Joe Biden. And on Nov. 17, after a Pennsylvania judge denied the new lawyer an extension to prepare, Rudy himself acted as the president’s lead attorney, kicking off the hearing with complaints of “widespread nationwide voter fraud.” He later told the judge that it was “not a fraud case,” nor was it a case about the position of poll watchers. He looked befuddled when the judge set a deadline for a brief in opposition to the defendant’s motion to dismiss, a concept the president’s lawyers seemed not to understand.
In the meantime, the Pennsylvania Supreme Court tossed out the one and only victory for the Trump team in this make-or-break state, ruling that the Republican poll watchers should not get a closer view of ballot counting during the next election.
Legally speaking, the Trump team is about zero for 400.
Lawyers are supposed to put the interest of the client in front of their personal interest in making more money. In a business in which most of us bill by the hour, there is no financial advantage for a law firm to not bring a well-paying or high-profile client’s case. Now, I would argue that 9 times out of 10 when clients call you about filing a case, the best thing to do is not to file it in case they have second thoughts (the default in Big Law) but to insist that they sleep on it and then argue it out with them in the morning. At the end of the day, they decide — within ethical limits. But they aren’t hiring me to just do what they say, because anyone can do that. They are hiring me to tell them when they’re wrong.
The Ohio firm Porter Wright pulled out of its representation of the Trump campaign recently, with no explanation. It was reported that some of the lawyers there were concerned that the firm was fostering disrespect for the rule of law by catering to its client’s alternate reality. Jones Day, the international firm that has represented Trump since the 2016 campaign, is reportedly facing internal pressures to withdraw from the post-election fight that are fueled both by concerns about the lawsuits they are being asked to bring and the recognition that they no doubt would never get paid for any of it.
Giuliani’s idea of representing someone is to go on every television network in the world and promote himself. The issue of what his hand was doing in his pants in the latest Borat movie unfortunately overshadowed the indisputable fact that the president’s top legal adviser accepted an interview with a totally made-up television network from Kazakhstan, flirted with the 24-year-old actress who was playing Borat’s 15-year-old daughter and then followed her into the bedroom of the suite for drinks.
Rule 11 provides sanctions against lawyers who bring sham litigation or act improperly in pursuing litigation. The standard is generally low enough that most lawsuits never get close. The fruitless lawsuits being pursued by lawyers eager to win Trump’s blessing (or in Giuliani’s case, the TV time, money and, most of all, relevance that Trump has brought him) are clearly over that line. They are the critical piece of an effort by those afraid of Trump’s wrath or desperate for public attention to construct an alternate universe that would undermine the rule of law in this one.
It’s hard to remember that Giuliani was once a respected prosecutor. Looking back, it’s clear that all those show-up arrests that never led to charges, and all those talking indictments that convicted people before they were tried, were just a taste of what was to come. Giuliani was always an attention hog, taking credit for things he had nothing to do with. This time, as he himself has made clear, he has a great deal to do with everything that is slowing down the orderly transition of power, which is the hallmark of a democracy. That’s what Giuliani wants to get paid to do.
Susan Estrich is a lawyer and political commentator.