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One of the saddest things about last week’s breach of the Capitol building was how it made the United States look to people around the world.

We used to have a reputation for ambition, spunk, and promise. We had wealth, power, natural resources, and a seemingly undying optimism about the future and about how anyone, no matter how low, could rise to be among the highest.

The United States embodied an indefatigable, let ’em-at-me attitude that no matter how bad things got, we’d survive by working together because we were the melting-pot nation. We were the nation that fixed things, got things moving, made things bigger, and better. No dream was too big, no hardship too monumental.

We had so impressed our European neighbors, mired in centuries of internecine squabbles and political upheaval, that the French sent assistance to help free us from the British, and ultimately gave us the gift of the Statue of Liberty where the words of Emma Lazarus were emblazoned like a national motto: “Give me your tired, your poor, your huddled masses yearning to breathe free, The wretched refuse of your teeming shore.”

We grew, we prospered, and we overcame adversity together, as in 2001 when people came to New York from across the country to offer support after the Twin Towers were destroyed by terrorists.

But, in reality, we never left behind the ugly, centuries-old scar of slavery and white nationalism which once again, last week, reared its ugly head.

“What racism?” some people say. We live in an integrated society. There’s affirmative action. “I lost my job to a Black man,” the white man says. “I’m the one who’s discriminated against.” Work where I work as a criminal defense attorney for a few years and tell me if you still feel that way.

These tropes we feed ourselves deny reality. Seeing on national television last week the Confederate flag thrust into the Capitol building, the U.S. flag replaced by the flag of Donald Trump and a noose erected on Capitol grounds, we’re only fooling ourselves to think that racism is no longer a part of this nation. Racism must still be addressed and rooted out.

Watching Donald Trump spout his lies, jutting out his chin like Mussolini, and encouraging his followers to take by force the election that was “stolen from them” shows how easy it is for any nation to fall under the spell of a demagogue.

Last week’s assault on the Capitol stunned me, but I cried only when I read the headline from Italy’s premier daily La Stampa. It read, “C’Era Una Volta America,” a sad twist on a classic Italian fairy tale opening, “Once upon a time, there was America.” A reminder that we were different. We stood above. We led. Our word could be counted on.

We’ve lost that gloss. We share different truths. Some people no longer believe there is such a thing as fact. I recently stayed at a Vermont vacation lodge, where in that idyllic setting a guest wrote in the communal guestbook: Humanity has been subjected to a multiyear, meticulous, planned mind-control experiment which has in fact worked perfectly with the Covid hoax as the finest example. God bless America, please.

We have a long way to go.

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Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.

In the days since the attempted coup staged by Trump’s supporters in Washington, D.C., lawyers and lawmakers have been identified as members of the mob that broke into the U.S. Capitol, and the consequences have been quite severe. An in-house attorney lost his job, and a lawmaker resigned after being charged with a crime. That hasn’t stopped another lawyer from coming forward to admit that he was not only there at the scene, but he was one of the first to charge through the doors of the Capitol.

Meet McCall Calhoun, a solo practitioner who primarily does criminal defense work in Americus, Georgia. In addition to being an attorney for more than 30 years, according to his Twitter profile, Calhoun is an “Anti-Communist Counter-Revolutionary and mortal enemy of the Democrat Communists.” In a review of his services posted on FindLaw, Calhoun is referred to as a “racist bigot,” a “far right radical,” and a “nut job” who “has no business practicing law within these United States of America.” Lovely.

In an interview with the Atlanta Journal-Constitution, Calhoun says the actions of the rioters was nothing more than “civil disobedience,” likening the unruly crowd to “tourists.” That having been said, in one of his Parler posts from the day of the deadly attack, Calhoun reportedly wrote, “The Deep State cannot stop us. They learned that today when we stormed the Capitol and took it. The word is we’re all coming back armed for war.” Here’s a video that Calhoun shot while he was inside the Capitol:

Here are some additional screenshots from his Parler page:

While chatting with the AJC, Calhoun dismissed all of his calls for violence and civil war as “heated political rhetoric.” Here are some excerpts from that interview:

“The crowd was of one mind. Everybody there had the same attitude. They felt they had been robbed of a fair election and the Congress wasn’t listening to them,” he said. “It probably wasn’t the best idea, but it was what this group of people did; they did it for the love of America.” …

“The people who went in there, what they did was heroic. It was very patriotic,” he said. “I’m not saying it was the ideal thing to do. I am saying at that time and place those people felt like that was their only hope. They don’t want to lose their democratic republic.” …

Calhoun said the worst criminal act he did was “trespassing.”

“I would freely admit that I trespassed, but I did it for the love of my country,” he said.

We suspect that the FBI and other relevant authorities that are investigating may have other thoughts on the matter. Good thing he practices criminal defense….

Georgia attorney among those who broke into U.S. Capitol [Atlanta Journal-Constitution]

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Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

Rudy Giuliani, the president’s lawyer and the future star of every legal ethics exam for all eternity, is being shown the door by his home state bar association.

“NYSBA’s bylaws state that ‘no person who advocates the overthrow of the government of the United States, or of any state, territory or possession thereof, or of any political subdivision therein, by force or other illegal means, shall be a member of the Association,’” the New York Bar Association wrote in a statement released today on its website. “Mr. Giuliani’s words quite clearly were intended to encourage Trump supporters unhappy with the election’s outcome to take matters into their own hands. Their subsequent attack on the Capitol was nothing short of an attempted coup, intended to prevent the peaceful transition of power.”

Just two hours before the mob breached the Capitol building howling to “Hang Mike Pence!” they were whipped into a frenzy by Giuliani exhorting them to “trial by combat.” Encouraging violation of the law, particularly when that violation is the violent overthrow of the United States government, is rather bad form for a lawyer. Some might even consider it conduct unbecoming an officer of the court!

Indeed, the New York State Bar Association takes a dim view of Giuliani’s participation in the events of January 6. While condemning President Trump as ultimately responsible, the NYSBA notes that “[T]he president did not act alone. Hours before the angry mob stormed the Capitol walls, Trump’s personal attorney, Rudolph Giuliani, addressed a crowd of thousands at the White House, reiterating baseless claims of widespread election fraud in the presidential election and the Georgia U.S. Senate runoffs.”

But baseless claims are kind of Rudy Giuliani’s thing. Which is why just today the Treasury dropped sanctions on even more of his Ukrainian pals for “repeated public statements to advance disinformation narratives that U.S. government officials have engaged in corrupt dealings in Ukraine.” That would be “disinformation narratives” about Joe Biden and his son which Giuliani spent two years flogging, right up until he switched to disinformation narratives about a rigged election. Momentarily he’s taken a dogleg into
“disinformation narratives” about the real rioters being antifa radicals in disguise, but you’ll have to watch that video on his website, since YouTube removed it.

Truly, the man contains multitudes! His output is prodigious. And yet, the NYSBA remains unimpressed.

NYSBA has received hundreds of complaints in recent months about Mr. Giuliani and his baseless efforts on behalf of President Trump to cast doubt on the veracity of the 2020 presidential election and, after the votes were cast, to overturn its legitimate results. As widely reported, these efforts included the commencement and prosecution of court actions in multiple states without any evidentiary basis whatsoever. In each and every instance, these actions were appropriately dismissed by the courts in which they were brought.

Citing the organization’s “responsibility to defend and protect the rule of law,” NYSBA President Scott M. Karson will undertake an inquiry to determine if Giuliani should be expelled from the rolls. Which won’t result in his disbarment in the state of New York — but it’s hardly a plus on the resume either.

“Mr. Giuliani will be provided due process and have an opportunity – should he so choose – to explain and defend his words and actions,” the bar association promises.

Currently he’s “proving” that the attack on the Capitol was an inside job because no one at the Trump rally knew how to climb walls, which he describes as “a separate narrative, which you will not be shown on any of the censored media that run as an organ of the Democrat party and of Joe Biden, almost as if they were part of the Soviet Union government, or the Nazi government, or current Venezuela, or current China.”

That Bar hearing is going to be absolutely bonkers.

New York State Bar Association Launches Historic Inquiry Into Removing Trump Attorney Rudy Giuliani From Its Membership [NYSBA]

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Elizabeth Dye lives in Baltimore where she writes about law and politics.

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Baseless defamation suits initiated by high-profile actors such as members of Congress against Twitter and three users, or porn stars against the president of the United States seem to be all the rage lately. Seeing the legal system routinely abused like this should be enough to make any reasonable person understand the necessity of having robust anti-SLAPP statutes which provide procedural methods to quickly dismiss groundless defamation claims. Of course, defamation is also a centuries-long recognized area of American law. Although high-profile actors have tried to abuse it, elections company Dominion Voting Systems appears to have bucked the trend by filing a legitimate defamation suit against the horrible human being that is Sidney Powell. Dominion is seeking a whopping 1.2 billion in damages for what it labels as Powell’s “defamatory media campaign” which included claims among others “that Dominion had rigged the election, that Dominion was created in Venezuela to rig elections for Hugo Chavez, and that Dominion bribed Georgia officials for a no-bid contract.”

Powell’s claims are, of course, false in that Dominion was founded in Canada (Toronto), and independent audits and hand recounts have proven that Dominion’s vote counts were accurate. In some ways, the ridiculousness and easily disprovable nature of Powell’s claims might work in her favor. This is because insults, hyperbole, opinion, or overheated political rhetoric cannot be considered defamatory. Only false statements that can reasonably be interpreted as fact can fit the legal definition of defamation. The standard established in New York Times v. Sullivan also makes defamation cases involving public figures considerably more difficult to prove and sustain. However, what makes the legal strategy used by Dominion appear so strong is that the suit presents a lot of evidence portraying Powell not as a conspiracy nut engaged in opinion or hyperbole, but as a serious person making serious, albeit false, claims primarily for financial gain that millions of citizens reasonably took as fact.

As the Dominion suit details, for a month after the election, Powell appeared on legitimate (to many Americans at least) nationwide media outlets like Fox News alleging specific factual claims that were, at one time, backed by the office of the presidency and the president’s campaign. Moreover, Dominion does not necessarily focus on some of Powell’s more obnoxious claims, such as cooperation with Hugo Chavez. Instead, Dominion provides examples of Powell falsely misrepresenting actual factual events such as the (provably harmless) glitches with voting machines in Georgia.

Equally compelling, in its complaint Dominion presents a lot of evidence regarding Powell’s motivation as a grifter seeking to financially benefit from her false claims and ingratiate herself with the president. In fact, Powell did use her claims about Dominion to solicit funds from her website and considerably raised her public profile. In other words, according to Dominion, this was not a lunatic howling at the moon with hyperbole but an effectual, calculated, professional deceiver who reaped great reward.

Indeed, perhaps the most powerful aspect of Dominion’s suit is the demonstration of the effectiveness of Powell’s lies about a fraudulent election, including how it impacted the storming of the Capitol last week. There has now — literally — been blood spilled over these lies. Five people have died and dozens, perhaps hundreds, of others have been physically injured, not to mention the threat posed to our republic or how near we came to a bloodbath. Employees at Dominion have also seen their lives upended and have been subjected to numerous death threats. In other words, the damage caused by Powell’s lies is real and profound, and it was certainly clear even before Dominion filed its suit that Powell played a leading role.

Here is where I give the standard, but important, qualification that when it comes to litigation, little is certain or predictable. A case can be lost because of one juror’s bias or an attorney’s mistake. Yet Dominion’s suit is certainly different from other high-profile defamation claims in that there is a lot within it that should be taken seriously. With all the damage done, I cannot fathom how a person like Sidney Powell can sleep at night. If Powell has any legal sense (which is not at all evident), the Dominion suit should be keeping her awake.

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Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.

In the wake of the attempted coup at the U.S. Capitol, the leaders of Crowell & Moring, a Washington, D.C.-based Am Law 100 firm, issued a statement calling for the “defense of Constitutional democracy,” demanding that the 25th Amendment be used to strip President Donald Trump of his title and duties. Crowell’s leadership hoped that the leaders of other law firms would join the call to remove a president whose actions have put our nation in danger, and many have done just that.

In a joint letter sent to Vice President Mike Pence, the leaders of 18 law firms plus several individual signatories called for Trump to be removed. These are the firms and lawyers that signed on to Crowell & Moring’s call for action:

The letter was signed by Crowell leaders as well as Am Law 200 firms DLA Piper by managing partner Frank Ryan; Foley Hoag by co-managing partner Jeffrey Collins; Sullivan & Worcester by managing partner Joel Carpenter; and Hanson Bridgett, by managing partner Kristina Lawson, as well as other leaders of the firm.

The letter was also signed by leaders and partners of Amin Talati Wasserman; Baker Thomas Oakley Greene; Brinks Gilson & Lione; Coburn & Greenbaum; Farella Braun + Martel; Kendall Brill & Kelly; Lewis Baach Kaufmann Middlemiss; Kenneth Reich Law; McNerney & McAuliffe; Phillips Nizer; Shaheen & Gordon; Vandevert Trade Law; Wilson Williams LLC; and WTAII PLLC.

Individual signatories include David Vicinanzo of Nixon Peabody; Joseph Hayden Jr. of Pashman Stein Walder Hayden; and Dawn Elaine Bowie of Yates & Wheland.

Below is the letter that was sent to Pence:

On January 6, 2021, we watched in horror as the U.S. Congress was subject to a mob’s raid and occupation of the Capitol, interrupting one of the most sacred traditions in our orderly transition of Constitutional power: the receipt and certification of the ballots cast by the states to the Electoral College. It was a scene framed by forcible illegal entry, assault on law enforcement officers, and a senseless death. It was the direct and predictable result of a rally summoned by the President, at which he reinforced false claims of a rigged election that have been rejected or outright disproven by every public and judicial review of our November 2020 presidential election. It was a riot incited by the President’s own words addressing that rally, and then excused by his words after it.

Lawyers have no special province when it comes to politics. We have our views, like all citizens, and we should act on them. But when it comes to defending our Constitution and our system of laws, we have a special duty and an exceptional perspective. In this moment, we must speak out, in devotion to these bedrock principles of our nation.

The President has proven himself unfit for office, and a reckless and wanton threat to the Constitution that he pledged to preserve, protect, and defend. We call upon the Vice President and the Cabinet officers to invoke Section 4 of the 25th Amendment to the Constitution, and to declare to the leaders of Congress that the President is unable to discharge the powers and duties of his office. We further call upon all law firm leaders and all lawyers in government to join in this call, and to stand up for the democratic institutions and traditions of our republic and the Constitution that gives them life and protection.

Will the leaders of your law firm join the call to remove Trump from office?

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Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

Honestly, I never expected to hear about Rachel Uchitel ever again, much less have occasion to write about her in a legal industry publication.

Uchitel enjoyed a brief flicker of fame after Tiger Woods was injured in a car crash after his infidelities had come to light. Uchitel was one of more than a dozen identified mistresses that Woods maintained, which was almost as impressive a feat as winning the 1997 Masters by 9 strokes. But after his marriage dissolved and he endured a long-term rehabilitation, Uchitel seemed destined to fade into obscurity.

But, she’s managed to work her way into my consciousness yet again, dammit.

According to the Daily Mail, Uchitel is now with Gibson Dunn partner Ed Batts, who is married and — according to his wife — abandoned his family five days before Christmas to move in with Uchitel.

Kissing passionately, this is Tiger Woods’ former mistress Rachel Uchitel with her new boyfriend – married lawyer Ed Batts, 47, who dumped his wife and her three children five days before Christmas to be with the former nightclub hostess.

His wife is understandably distraught, and told the Daily Mail that Batts blindsided her by taking steps to prepare for this moment in secret:

In an exclusive interview with DailyMail.com, Batts’ devastated wife Robyn, 59, claims he began an affair with Uchitel at the end of November after meeting her online and walked out less than a month later – leaving her heartbroken.

Batts had kept his plan to leave secret – shipping his Porsche to Florida days before his departure, with Robyn claiming he told her it was at the dealership to be repaired.

Court filings seen by DailyMail.com show Batts filed for divorce on December 17.

But Uchitel told Page Six that Batts was already separated from his wife.

“Robyn is publicly humiliating her estranged husband, whom she has been separated from for quite awhile, by using me as a target.” She added, “It’s sad that the media has yet again taken a story out of context and are trying to paint me as a mistress, when that is not the case.

Separation is a tricky liminal state. It’s also exactly the status a married man would claim while building a relationship with someone already burned by being labeled someone’s mistress. Whatever is going on, I’ve been forced to expend mental energy on Rachel Uchitel again and 2021 is off to a wretched start.

EXCLUSIVE: Tiger Woods’ infamous mistress Rachel Uchitel is caught on camera kissing married lawyer on romantic getaway days before he dumped his wife and kids, closed bank account and moved to Palm Beach to be with her [Daily Mail]
Rachel Uchitel says she’s ‘target’ of new beau’s wife [Page Six]

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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

If the reports are to be believed, Donald Trump will soon need not only a new banker, but a whole new bank, as Deutsche Bank has apparently decided it’s eaten more than enough shit and bad loans on behalf of a failed insurrectionist, would-be dictator and hopeless casino operator. Still, they’ve had some good times together over the last two-plus decades, the Germans and the America Firsters, right? Had some laughs, done some deals? Why not let’s do one more, for old time’s sake, and before Merrick Garland or Preet Bharara get a chance to weigh in?

I’m doing thought experiments.

Please join with me, and turn these three questions over in your mind.

First: Suppose that Barack Obama had given an incendiary speech at the White House, prompting a mob to march to Congress and storm the Capitol, resulting in several deaths.

What would Republicans have said?

Second: Suppose that a group of foreign terrorists had managed to breach the Capitol Building, vandalize the premises, and send members of Congress scrambling for safety. Several people died in the attack.

What would happen after the attack was repelled?

Am I wrong to think that members of Congress, Democrats and Republicans alike, would join arms, march to the steps of the Capitol Building, together sing “America the Beautiful” (bringing a tear to the eye of all who watched), and then return to session to pass bipartisan legislation appropriately responding to the violence?

Finally (and admittedly the hardest thought experiment of all): Suppose that, in the next two weeks, the House of Representatives unanimously passed articles of impeachment, and the Senate unanimously convicted President Donald Trump, removing him from office and barring him from holding office again.

Why would that be divisive?

That’s unifying. That’s how Congress appropriately responds when the president urges a mob to attack it.

(If you don’t believe that Trump exactly incited the mob to storm the Capitol, please do a fourth thought experiment: Imagine that he had not given his speech. Would the attack have occurred?)

Unanimous impeachment and conviction would punish Trump for his actions. No future president would ever dare to incite a mob to storm the Capitol. And people around the world — including in the United States — would see that America protects peaceful protest, but the country unites and comes down with a vengeance on those who engage in violence.

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Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at inhouse@abovethelaw.com.

* A Georgia lawyer, who was purportedly present at the Capitol riot last week, claims the rioters were like “tourists.” Don’t think any of them were on a guided tour… [New York Post]

* Musician Nicki Minaj has lost a defamation lawsuit filed by artist Tracy Chapman over music Minaj allegedly misappropriated from Chapman. [NPR]

* Ginni Thomas, the wife of Supreme Court Justice Clarence Thomas, is in hot water for allegedly supporting individuals involved in the riot at the Capitol last week. [Yahoo News]

* The parent company of Pornhub is facing a class-action lawsuit over illicit videos allegedly posted on the website. [New York Post]

* A Florida attorney has been suspended from practice for allegedly committing misconduct and responding to an email from the bar with “[d]ear assholes.” In the lawyer’s defense, he reportedly ended the email with “[h]ave a blessed new year”… before concluding “[d]ick heads [sic].” [Orlando Sentinel]

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Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.