A push by more than 7,000 lawyers and law students to have Sens. Ted Cruz (R-Texas) and Josh Hawley (R-Mo.) disbarred likely won’t succeed, say legal ethics experts.
“It is unlikely that a petition will influence the bars to take action that they don’t have to take, particularly a petition started and signed by a number of individuals who are neither members of the particular bars nor have had any personal contact (either as attorneys or clients) with the subjects of the petition,” said Mason Ernest Lowe, who teaches the practice of law at William & Mary Law School.
The petition, posted online Jan. 8, charges Cruz and Hawley with “inciting the Jan. 6 insurrection” at the U.S. Capitol involving supporters of President Donald Trump by announcing their intention to object to the certification of the Electoral College votes. The presidential election won by Joe Biden was “free and fair” but the senators nevertheless chose to “attack the foundations of our democracy,” the petition said.
Cruz tweeted Jan. 8 that “what happened at the Capitol was despicable and horrific. Each and every one of those terrorists need to be prosecuted to the fullest extent of the law.”
Hawley’s press office tweeted Jan. 6 that “violence must end, those who attacked police and broke the law must be prosecuted, and Congress must get back to work and finish its job.”
State disciplinary bodies generally initiate proceedings as a result of official complaints filed by individuals or by courts. They tend to avoid any hot-button political issues.
Many state bars have received complaints in recent months in connection with the involvement of lawyers in the challenges to the Nov. 3 election, Jan Jacobowitz, a legal ethics adviser, said in an email.
Pressure on Giuliani
Trump lawyer Rudy Giuliani has faced calls for disbarment for filing frivolous lawsuits alleging election fraud but experts dismissed them as being politically motivated, noting that a state bar is more likely to act on a court finding of frivolity.
Giuliani is also being investigated by the voluntary New York State Bar Association for a statement he made before Trump supporters ransacked the Captiol in a riot that left five people dead. The bar association said Monday it’s considering removing Giuliani from its membership. The association is not in charge of New York lawyer discipline.
It’s unclear whether the bars will launch investigations of alleged ethical breaches “committed in this intense political environment, but certainly there is growing pressure on them to do so, especially given the national coverage and public display of the conduct that is the subject of the latest petition,” Jacobowitz said.
This isn’t a political issue, Jenny Choi, one of seven Yale law students who helped organize the petition, said in an email.
“Senators Hawley and Cruz have fanned false claims of voter fraud and worked tirelessly to undermine a legitimate presidential election,” Choi said, noting the end result was the deadly attack on the Capitol.
“To say that the legal profession should disown such actors is not a political statement. It would be egregious for there not to be a clear statement from the profession that the role of lawyers in an imperfect democracy is to promote, not to denigrate, democracy,” Choi said.
The petition says Cruz and Hawley’s actions violated ethics rules prohibiting lawyers from committing crimes and acting dishonestly. They are “fundamentally unfit for membership in the legal profession,” it says.
Even if the District of Columbia, Texas, and Missouri bars decline to act, the senators may face other consequences.
On Monday, Sen. Sheldon Whitehouse (D-R.I.), a senior member of the Senate Judiciary Committee, called on the Senate Ethics Committee to consider expelling or censuring them and removing them from committees that might investigate the violence at the Capitol.
“Because of massive potential conflict of interest, Senators Cruz, Hawley, and Johnson (at least) need to be off all relevant committees reviewing this matter until the investigation of their role is complete,” Whitehouse said in a statement.
Spokespeople for Cruz and Hawley couldn’t immediately be reached for comment.