Your Monthly Constitutional

YOUR MONTHLY CONSTITUTIONAL By: Stewart Harris

Lincoln Memorial University Duncan School of Law

FULFILLING OUR OATHS

One year ago, insurrectionists attacked the United States Capitol. For the first time in American history, one of our most fundamental constitutional principles, the peaceful transition of power, was violently challenged.

The challenge was met. Brave police officers and National Guard troops locked arms and engaged in hours of hand-to-hand combat to defend the Constitution. They had taken oaths to do so.1 Many were injured. Some died. But they fulfilled their oaths.

Like most Americans on that terrible day, I watched live video of people smashing windows at the Capitol, overrunning barricades, attacking the police with bear spray, using American Flags on poles as weapons. They had even erected a scaffold. The insurrectionists chanted, “Hang Mike Pence!” It was like a scene from the French Revolution, only with a noose, rather than a guillotine.

Pence, of course, was our duly-elected vice president, and it was his job to count the electoral votes for the 2020 presidential election. He was inside the Capitol, with his family. These screaming rioters intended to publicly execute him to prevent his fulfilling his constitutional duty.2 Their chanting was not mere rhetoric. It was rhetoric accompanied by deadly violence. The Vice President, only yards away from the insurrectionists, was in mortal danger. So were Members of Congress, especially those who were particular targets of the insurrectionists, notably Speaker Nancy Pelosi.

Like hundreds of millions of people across the globe, I was stunned. Could this be happening? Here? In America? It was. It did. Our Constitution was under attack. By people who called themselves “patriots.” By people who called themselves “Americans.”

But the vice president and members of Congress had also taken oaths, to “support and defend the Constitution of the United States against all enemies, foreign and domestic.”3 Only hours after the police and National Guard had put down the insurrection, Congress and the vice president returned to the House chamber and certified the electoral votes. Pence certified his own defeat. On that terrible day, Pence and Congress fulfilled their oaths.

As attorneys, as officers of the courts, we have also taken oaths. In Tennessee, we have sworn to “support the Constitution of the United States.”4 What does that mean at this pivotal moment in American history?

At the very least, it means that we should not misrepresent what is happening in our nation. Rudy Giuliani found that out the hard way, when the State of New York recently suspended his license to practice law. The state acted, in large part, because of Giuliani’s “demonstrably false and misleading statements to courts, lawmakers and the public at large . . . to improperly bolster respondent’s narrative that due to widespread voter fraud, victory in the 2020 United States presidential election was stolen from his client.”5 The order of suspension is worth quoting at some length: The seriousness of respondent’s uncontroverted misconduct cannot be overstated. This country is being torn apart by continued attacks on the legitimacy of the 2020 election and of our current president, Joseph R. Biden. The hallmark of our democracy is predicated on free and fair elections. False statements intended to foment a loss of confidence in our elections and resulting loss of confidence in government generally damage the proper functioning of a free society. When those false statements are made by an attorney, it also erodes the public’s confidence in the integrity of attorneys admitted to our bar and damages the profession’s role as a crucial source of reliable information. It tarnishes the reputation of the entire legal profession and its mandate to act as a trusted and essential part of the machinery of justice. Where, as here, the false statements are being made by respondent, acting with the authority of being an attorney, and using his large megaphone, the harm is magnified. One only has to look at the ongoing present public discord over the 2020 election, which erupted into violence, insurrection and death on January 6, 2021 at the U.S. Capitol, to understand the extent of the damage that can be done when the public is misled by false information about the elections.6 And so, at a minimum, to uphold our oaths, we should not make unfounded claims of widespread voter fraud.

Please note the word “unfounded.” If there is actual evidence of voter fraud, we should, of course, bring it forward and punish those responsible to the full extent of the law. We should document it, expose it, and ensure that it never happens again.

But we should not make serious allegations, in court or in public, without any evidence to back them up, and in the face of mountains of evidence to the contrary. Especially when those unfounded allegations erode support for our Constitution.7

1 Code of the District of Columbia § 1–604.08. Oath of office; 32 U.S. Code § 312, Appointment oath. 2 Heaven knows what they would have done with the vice president’s family, but we can guess; some of the rioters carried plastic hand cuffs. “Do Photos Show Rioters with Zip Cuffs at US Capitol?” Snopes, January 8, 2021, available at: https://www. snopes.com/fact-check/zip-cuffs-capitol-riots/. 3 5 U.S.C. § 3331. 4 Tenn. R. App. P 6(4), available at: https://www.tncourts.gov/rules/supreme-court/6. 5 Supreme Court of the State of New York, Appellate Division, First Judicial Department, In the Matter of Rudolph W. Giuliani, (June 24, 2021) 2, available at: https://www.nycourts.gov/courts/ad1/calendar/List_Word/2021/06_Jun/24/PDF/ Matter%20of%20Giuliani%20(2021-00506)%20PC.pdf. 6 Id. at 30-31. A few days later, the DC Court of Appeals suspended Giuliani’s license. “Rudy Giuliani suspended from practicing law in D.C. court,” Washington Post, July 7, 2021, available at: https://www.washingtonpost.com/local/legal-issues/giulianiwashington-court/2021/07/07/9f7a7f5c-df6a-11eb-9f54-7eee10b5fcd2_story. html. 7 Tennessee Rule of Professional Conduct 8.4(b) prohibits “conduct involving dishonesty, fraud, deceit, or misrepresentation;” moreover, the Preamble to the RPCs notes that “a lawyer should further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.”

Stewart Harris is the host of Your Weekly Constitutional, available for streaming and downloading on iTunes and Spotify.