Public officials from both political parties have increasingly alleged that law enforcement is “weaponizing” criminal law against their political adversaries. Recently, House Republicans have demonstrated that the manipulation extends beyond criminal law to include the rules governing professional conduct for lawyers, which can also be misused as a weapon.
As many public officials are attorneys, they must adhere to rules set forth by state courts, which have the authority to suspend or disbar lawyers for professional misconduct.
The December 2024 Interim Report by the House Administration Subcommittee on Oversight examines how these rules can be exploited against lawyers in public office, particularly in light of the January 6th events.
Although the subcommittee ostensibly aimed to investigate security failures at the Capitol on January 6, 2021, and to evaluate the work of the January 6 Select Committee—previously established by then-Speaker Nancy Pelosi (D-Calif.)—its interim report primarily attacks Liz Cheney, the Republican House member who risked her political future by supporting President Trump’s impeachment and serving as the vice chair of the January 6 Select Committee.
The report asserts that Cheney, due to her status as a lawyer, engaged in professional misconduct during her involvement with the January 6 Select Committee. Specifically, it claims she violated legal ethics in her communications with witness Cassidy Hutchinson, who previously worked as an assistant to Mark Meadows, the White House chief of staff.
The allegations of misconduct are absurd. For instance, the report criticizes Cheney for speaking with Hutchinson while she had legal representation. It cites a rule from the D.C. Bar stating that “During the course of representing a client, a lawyer shall not communicate or cause another to communicate about the subject of the representation with a person known to be represented by another lawyer in the matter.”
However, the interim report fails to mention the critical introductory phrase, “During the course of representing a client.” Any law student would recognize that this rule is irrelevant to Cheney because she was not acting as a lawyer for a client; she was performing her duties as a legislator involved in a legislative inquiry, which afforded her the same ability to communicate with witnesses as any other non-lawyer member of Congress.
The interim report also accuses Cheney of improperly persuading Hutchinson to switch lawyers, citing excerpts from books authored by both Cheney and Hutchinson. These excerpts detail how Hutchinson, after providing testimony three times to the January 6 Select Committee, expressed dissatisfaction with her attorney.
She reached out to Cheney, contemplating self-representation, and Cheney suggested seeking independent legal counsel. After Hutchinson requested a recommendation, Cheney followed up with a list of attorneys from several firms.
Hutchinson later expressed gratitude, stating, “I could not find the words to tell [Ms. Cheney] that the committee was giving me one of the greatest gifts I could have received: hope.”
The report interprets this as evidence of Cheney inappropriately influencing a witness’s testimony. However, Cheney’s actions, as recounted in both authors’ works, were entirely appropriate, regardless of whether she was acting as a lawyer or a member of Congress.
Even in the context of representing a client, which was not Cheney’s role, it is acceptable for a lawyer to suggest that a witness seek legal representation and to provide a list of potential attorneys. This behavior does not equate to witness tampering.
The report’s main argument is that some of the more controversial parts of Hutchinson’s testimony were inaccurate, regardless of intent. It criticizes Cheney and other Select Committee members for not exercising “due diligence” in verifying Hutchinson’s statements prior to presenting them.
However, the professional conduct rules for lawyers do not apply to legislators conducting legislative investigations. Even if they did, there is no requirement for Cheney, as a lawyer, to validate a witness’s testimony.
Ironically, the interim report accuses the Select Committee of weaponizing professional conduct rules by initiating an ethics complaint against Hutchinson’s initial attorney without justification.
Yet, it resorts to similar tactics in response. It is essential for both parties to cease their accusations, limiting claims of criminal and professional misconduct to situations where they are warranted, rather than resorting to unfounded allegations for rhetorical purposes. Bruce Green serves as a professor at Fordham Law School, where he leads the Stein Center for Law & Ethics.
