Giuliani's Suspension: Questionable Statements, But Not by Him
What was bizarre about
this ruling, especially to any experienced lawyer, is that Giuliani was suspended
before it was even determined preliminarily that an investigation of him should be opened. The court disqualified Giuliani on an emergency
ad hoc basis, implicating Trump's Sixth Amendment right to counsel and Giuliani's First Amendment right to free speech. The court's ruling also does not find problematic the Fifth and Fourteenth Amendments, requiring a due process hearing before any deprivation of a right, privilege, or property interest.
So what justified this pre-hearing, pre-investigation suspension, based on conduct not even remotely involving the State of New York? The court was concerned that Giuliani might cast doubt on the legitimacy of the duly elected president, Joseph R. Biden, a claimed legitimacy the court repeated to distraction. The ruling claims that Giuliani's "false statements intended to foment a loss of confidence in our elections and resulting loss of confidence in government generally." Moreover, Giuliani "tarnishes the reputation of the entire legal profession" besides "the falsehoods themselves caus[ing] harm." After all, we would not want the trusting public to think some lawyers are sleazy; that our government would lie; or, horrors, that a local urban government would be incompetent.
What is so shockingly dangerous to the public about Giuliani's words? Hold on to your hats.
To set up one of Giuliani's main outrages, we offer preface regarding the slight nuances between a fraud
claim and an
allegation of fraudulent conduct. Often a legal complaint pleads a fraud
claim, which must be pleaded with "particularity." But many other
claims have
allegations of fraudulent conduct as part of the underlying basis. For example, claims of real estate broker malpractice may be based upon fraudulent statements, whether a separate
claim of fraud is made or not. Same with trade secret, patent, unfair competition, and even breach of contract claims. So an
allegation of fraudulent conduct is not the same as a
claim of fraud. Easily understood, right? Apparently not by a court that may not have wished to understand it.