Jenna Ellis
Colorado lawyer Jenna Ellis was a member of the “elite strike force team” of lawyers led by Rudy Giuliani (details here) that tried to overturn Trump’s 2020 election loss with dodgy legal tactics.
In her home state, Ellis was accused of violating professional ethics by participating in those efforts, and more than two years later her chickens have come home to roost.
Ellis has stipulated that she made “reckless, knowing or intentional misrepresentations” in public appearances by falsely claiming the election was “stolen.”
She won’t lose her license to practice law, but now has a censure on her record, the highest level of discipline short of disbarment. (Read story here.)
Her own attorney, speaking on her behalf, said, ““My client remains a practicing attorney in good standing in the State of Colorado. In a very heated political climate, we have secured that correct outcome.” (See story here.)
“Good standing” simply means she can practice law. It doesn’t imply she’s a good lawyer or person. She’s neither. She participated in sinister efforts to destroy our democracy, overthrow our elected government, and pervert the legal system to those efforts, in the process helping to incite the violent mob that attacked the Capitol.
Ellis, who claimed to be a “constitutional law expert” on TV, is nothing of the sort. She’s never tried a constitutional law case in federal courts. In all respects, she’s a legal lightweight, and some people even wondered why she was on Trump’s legal team. The answer is because she had what it took to participate in those efforts: A fervent loyalty to Trump, coupled with a lack of ethic restraints.
Yahoo News complains Ellis got a “slap on the wrist” (see story here), which of course implies they think she should’ve been disbarred. Their complaint is she “admitted to misrepresenting evidence 10 times while trying to overturn the 2020 election — but she’ll still be able to practice law.” Probably many other people who care about our democracy and the integrity of the legal profession feel that way, too. So why wasn’t she?
But they acknowledged that while she was guilty of spreading “disinformation,” she did it “on Twitter and on various television programs, including Fox Business, MSNBC, Fox News, and Newsmax,” not in the courts. In other words, she was punished for her political advocacy, not legal arguments. But isn’t political speech protected?
Yes, within limits. The First Amendment doesn’t protect an ordinary citizen who yells “Fire!” in a crowded theater when there’s no fire. The analogy is apt, because that’s essentially what Ellis did. Disciplinary counsel for the Colorado bar said, “The public censure in this matter reinforces that even if engaged in political speech, there is a line attorneys cannot cross, particularly when they are speaking in a representative capacity” (see story here).
And censure isn’t a “slap on the wrist,” it’s a black mark on a lawyer’s record and reputation. Misbehaving attorneys are punished on a graduated scale, depending on the nature and severity of their offenses, as follows: Admonition (least severe), reprimand, censure, disbarment. Ellis’ censure is the most severe punishment she could get short of disbarment.
The disciplinary judge, in his order of censure (read it here), said Ellis engaged in conduct that, while not criminal, nevertheless involved “dishonesty, fraud, deceit, or misrepresentation … that adversely reflects on the lawyer’s fitness to practice law.” It appears he considered imposing disbarment, but decided even though “the aggravating factors outweigh the mitigators, the factors are not so out of balance as to warrant departing from the presumptive sanction of public censure.” He followed the guidelines set out in the lawyer disciplinary rules.
On a broader plane, it’s important the plotters who sought to overthrow our government are held accountable and face consequences. So far, nearly a thousand Capitol rioters have pleaded guilty or been convicted of crimes related to the mob violence on Jan. 6, 2021, receiving sentences ranging from fines and probation to years in prison. In New Mexico, a state judge applied the “insurrection clause” of the Constitution to ban a Jan. 6 participant from holding public office (see story here).
The involvement of lawyers is especially pernicious, because they took an oath to uphold the law, and are held to a higher duty. Giuliani has been suspended from practicing law in New York and the District of Court pending disbarment proceedings; and John Eastman, who masterminded the “fake electors” scheme, is facing disciplinary proceedings in California, may be indicted in Georgia, and was fired from his law professor job in Colorado.
But the book is still open on such main actors as Mike Flynn, the retired 4-star general and Trump confidante who openly advocated a military coup, and of course Trump himself. But perhaps not much longer. A Georgia special grand jury has recommended indictments, widely believed to include Trump, and the Atlanta D.A. is expected to announce a decision in May. It’s possible, of course, Trump may escape legal consequences for his central role in propagating election lies and encouraging if not orchestrating efforts to overturn a legitimate election, because he’s a political leader with a following of millions who likely will not accept such a result. We’ll have to wait and see.
And then there’s Fox News, which has admitted — after being exposed — that its executives and on-air personalities knew the “stolen election” narrative was false, but pushed it on air anyway. They did it for money; they feared losing their partisan audience if they conceded the truth. It will cost them; Dominion Voting Systems will win its defamation lawsuit against Fox Network, and the only question is how much Rupert Murdoch will have to pay. He can afford it. Fox’s reputation has been tarnished, but they had no reputation to lose among educated thinking people, and their audience doesn’t care they’re liars.
Justice is imperfect in this world. Not all wrongs are set right, and even when there’s redress, it’s often inadequate and never repairs the damage. The attempted coup following the 2020 is a dark stain in America’s history, and the bad actors are still with us. It absolutely should be punished, but we also must be forward-looking; the work of protecting our democracy isn’t over, and may only be beginning. What we’re seeing now is Republican efforts to fire professors and jail teachers; censor journalists and bloggers, and ban books from schools and public libraries; and take away citizens’ right to elect our leaders.
Politics is unpleasant but important. That’s why I’ve concerned myself with politics since my teens, which is now a very long time ago. Staying informed, and thinking critically, is more than many people want to do. But voters, especially young voters who tend not to vote, need to have situational awareness. None of us will agree 100% with what a political party and its candidates want to do. But at a very basic level, we’ve got to protect our right to choose who will rule us. And right now one of the parties is trying to take that choice away.
Related story: After stipulating to discipline, Ellis called it “politically motivated” (see story here), demonstrating she’s unrepentant and suggesting she agreed to censure only because her lawyer warned her that she likely would be disbarred in a contested hearing. By the way, courts don’t impose discipline lawyers for “politically motivated” reasons. Almost immediately, Ellis resumed saying the lies that got her in trouble (see story here).