So, I’m doing everything I can to only write about this stuff occasionally, but the latest stunt in connection with the ongoing investigations into the current administration requires at least some discussion – not just because of the brazen hypocrisy (after all the ethics rules do not prohibit lawyers from being hypocrites) but because the incident raises a fascinating question (at least for me) about the application of RPC 8.4(d).
Ok, before I go further assuming you know what I’m talking about, I’m talking about Congressman Matthew Gaetz, a Florida Republican, who appears to be the closest thing to the Jonah Ryan character from Veep that we have in the Trump cinematic universe version of that show. Gaetz, who is a Florida lawyer, led a group of 40 Republican congressmen in unauthorizedly barging their way into the SCIF. (Technically, 13 of them sit on committees that are entitled to be in there so, unless they were among the ones with phones, their involvement wasn’t unauthorized just outlandish.)
Now, if you are unfamiliar with the rules of Congress regarding the use of a SCIF or even what that stands for, you can go read this excellent article on the topic here. Now as the news has come out, in addition to the fact that the only thing missing from the event to fully underscore the Olympic-level hypocrisy would have been for Gaetz to scream “Benghazi” as they pushed their way in, there are now indications that the activity may have been coordinated with the POTUS and, ultimately, it resulted in the Sergeant-at-Arms coming and declaring that the members were in violation of the rules of the legislative body.
While it is clear that this conduct, spearheaded by Gaetz, was in violation of the House’s own rules on such things, it is less clear to me about whether it involved an actual violation of the law. On its face though, one thing that seems absolutely clear to me: given that this was aimed at obstructing impeachment investigation proceedings, something that is a power given solely to the House, is there any argument that it is not conduct prejudicial to the administration of justice for purpose of Rule 8.4(d)?
I mean, there are several level of problems with storming a secure area in order to seek to disrupt Constitutionally-authorized proceedings, but given that it happened in connection with a deposition that was being given by a witness who was testifying in response to a lawful subpoena the day after pretty-damning testimony from the Ambassador to Ukraine raises the specter of witness intimidation in a way that would likely raise red flags for someone who hadn’t already faced proceedings about improper conduct that could be viewed as threatening witnesses to official proceedings much less someone who already found themselves in the cross-hairs defending themselves against such issues.
This might be an academic question only because Florida’s version of Model Rule 8.4(d), though expanded recently to reach harassment and discrimination, only prohibits conduct “related to the practice of law.” So it appears that you’d have to conclude this was a crime to come after him and constitutional protections for legislators under the Speech and Debate clause are pretty robust.
But, it really is not an academic question because Gaetz has already put his license at risk over such behavior. He has previously had to deal with a disciplinary investigation over a Tweet he directed at Michael Cohen, a former fixer/lawyer for Trump, which appeared to threaten Cohen at a time in which Cohen was scheduled to testify before Congress. Apparently, that matter was resolved with no disciplinary action but merely a letter of advice.
It would appear that Gaetz, like the man he appears to be willing to risk his license for, has not taken that kind of advice to heart.