Jan. 6 and the dishonor that will remain

Rudy Giuliani may not be the greatest villain in the story of the riot at the U.S. Capitol, but he is certainly among the most dishonorable. As we learned at yesterday’s second hearing of the House Select Committee to investigate the Jan. 6 attack, it was an “inebriated” Giuliani who urged Trump on election night to begin claiming that the election had been stolen. Then he made it worse.

Relying on his unique credibility as a once-respected and accomplished lawyer, Giuliani soon raised the phony arguments about so-called voter fraud in federal court, which initially gave the false allegations a veneer of legitimacy. If not quite the originator of the “Big Lie” – that was Trump himself – Giuliani was one of its earliest super-spreaders.

More than 20 million viewers tuned into Rep. Liz Cheney’s (R-Wyo.) prime time tour de force last Thursday at the first public hearing of the House Select Committee, as she methodically established former President Trump’s culpability for the insurrection. It was all part of an extended plan for Trump “to remain president of the United States despite the lawful outcome of the 2020 election.”

Although Trump and his advisers knew full well that he had lost the election, they engaged in a “massive effort to spread false and fraudulent information” that eventually inspired a violent mob to attack Congress in a desperate attempt to prevent certification of the electoral vote favoring Joe Biden.  Giuliani’s courtroom tactics played a key role in the scheme.

Trump’s 61 failed lawsuits should not be regarded simply as futile litigation. In fact, they were part of a disinformation campaign intended to provide a seemingly legitimate platform for dishonest claims of election fraud. As part of a self-proclaimed “elite legal strike force,” Giuliani and his accomplices began cranking out conspiracy theories within days of the election.

Giuliani participated in drafting a verified complaint – “verified” means under oath – on behalf of the Trump campaign, which was filed in Pennsylvania federal court on Nov. 9, seeking to set aside 680,000 to 1.5 million valid ballots on such laughable grounds that the trial court quickly threw it out.

In a scathing opinion written by a Trump-appointed judge, the appellate court affirmed the dismissal, calling out Giuliani by name. Trump’s legal “claims have no merit,” explained the court. “Tossing out millions of mail-in ballots would be drastic and unprecedented, disenfranchising a huge swath of the electorate.” Referring to Giuliani’s arguments as “alchemy,” the appellate court held that the Trump campaign “cannot win this lawsuit.”

But winning the case was never the point. No halfway-decent lawyer could have believed it might succeed; Trump’s Attorney General William Barr called the legal arguments “bullshit.” The real objective of the litigation was to begin the process of undermining public confidence in the election, setting up Trump’s refusal to leave office. The courtroom was just a stage for declaiming baseless conspiracy theories. Giuliani’s case was not merely frivolous; it was devious.

The true purpose of the litigation is apparent from Giuliani’s oral argument on Nov. 17, which was open by phone to as many as 8,000 journalists. He repeatedly spun fantastic stories of vote fraud, offering no actual evidence. Here are just a few examples of Giuliani’s assertions:

• “The best description of this situation is, it’s widespread, nationwide voter fraud of which this is a part.”
• “This is not an isolated case, it’s a case that is repeated in at least 10 other jurisdictions.”
• “[Democrats] now have a wonderful opportunity . . . to produce votes after the election to make up a deficit.”
• “And what did they steal really? Well, they stole, they stole an election.”
• “The conduct was premeditated. The conduct was planned.”
• “The purpose was to have those ballots examined in secret so that only a Democratic officer would get to see it.”

Those unsupported claims were rejected out of hand by the federal courts, but they nonetheless served the purpose of introducing the fallacious stories to the public discourse. They were subsequently repeated and elaborated with great fervor by numerous Trump surrogates. Giuliani himself continued to push ever more lurid tales of voter fraud, expounding at press conferences, on radio and television, and in meetings with Republican legislators.

Giuliani repeatedly announced that thousands of dead people had voted in Philadelphia – sometimes giving the very specific number of 8,021, sometimes claiming it had been 30,000 – including the deceased heavyweight champion Joe Frazier (who had actually been removed from the voter rolls shortly after his death in 2012). He likewise claimed that there had been dead voters in Georgia, in numbers ranging from 800 to 6,000 to the oddly precise 10,515. The true number, determined in an audit, was two.

Then there were the 65,000 underage voters – or was it 66,000 or 165,000 – in Georgia, when in fact there were none. Giuliani also claimed that 10, 000 “illegal immigrants” had voted in Arizona, or maybe 32,000 or 50, 000, and “probably around 250,000,” supported by zero proof. Not to mention Giuliani’s imagined accounts of nonexistent truckloads and suitcases filled with Biden ballots, and other fantastical claims too numerous to repeat.

I deeply respect Cheney’s integrity and political courage, but she was wrong to say that “the President had every right to litigate his campaign claims.” That would be true only as a platitude or abstraction. In the real world, Trump had no right to turn the judicial system, by way of Giuliani’s bogus advocacy, into a launching pad for disinformation intended to subvert the peaceful transfer of the presidency.

Giuliani’s law license has been suspended in New York, and he is facing similar discipline in Washington, D.C. Whether or not he hopes ever to return to law practice, Cheney was right when she rebuked him and Trump’s other enablers: “Your dishonor will remain.”

Steven Lubet is the Williams Memorial Professor at the Northwestern University Pritzker School of Law. His most recent book is “The Trials of Rasmea Odeh: How a Palestinian Guerrilla Gained and Lost U.S. Citizenship.”