Yesterday, we learned that Colorado bar authorities disciplined Trump lawyer Jenna Ellis, by her own agreement, for her misrepresentations on Fox News and elsewhere on behalf of the former President’s attempts to overturn the November 2020 election. The States United Democracy Center and The 65 Project filed ethics complaints against Ellis.
Ellis admitted to engaging in dishonest conduct by claiming that the 2020 election was stolen from Trump and that his legal team had the proof to back it up. She apparently did so in exchange for a public censure—something no lawyer wishes for but far short of having her license suspended like her colleague, Rudy Giuliani.
There is honor in holding oneself to account, in admitting one’s wrongdoing when it occurs. That’s the lesson parents teach children by telling them that apocryphal story of young George, confronted by his dad, confessing his part in the cherry tree lying flat on the backyard lawn.
Unfortunately, the lesson seems to have been lost on Jenna Ellis. Within hours of her censure agreement being publicized, she parsed its words and severed herself from whatever redemption she might have claimed from confessing error.
People on the left, she tweeted, are “now trying to falsely discredit me by saying I admitted I lied. That is FALSE. I would NEVER lie. Lying requires INTENTIONALLY making a false statement.”
Brings to mind our 42nd President, Bill Clinton. He famously parsed the shortest verb in the English language when, in answering a question about whether he had truthfully denied having had a White House affair, he responded, “It depends on what the meaning of the word ‘is’ is.”
In Ellis’s case, you be the judge of whether she was lying. The stipulation she signed cites 10 of her false statements, including one on December 5, 2020 when she “appeared on ‘Justice with Judge Jeanine’ on Fox News and stated ‘We have over 500,000 votes [in Arizona] that were cast illegally.’”
The stipulation then states: “Respondent has . . . violated [Rule of Professional Responsibility ] 8.4(c) (dishonesty).” It cites Colorado case law establishing that “reprimand is generally appropriate when a lawyer knowingly engages in any other conduct that involves dishonesty, fraud, deceit, or misrepresentation and that adversely reflects on the lawyer’s fitness to practice law.”
Ordinary folk could be forgiven for thinking that “knowingly” engaging in dishonest, fraudulent, or deceitful conduct by making false statements is a pretty good description of lying. “I knew my statements were false, but I didn’t intend to lie when I made them” is some heavy water to carry.
Most people who acknowledge their wrongdoing at least seek the public benefit from saying that they held themselves to account. Jenna Ellis has managed to get the worst of both worlds—being professionally sanctioned by agreement and abdicating all responsibility for her behavior.
Note this part of her tweet: “The Colorado bar counsel and my counsel concluded that it was best to resolve the bar complaints by agreeing to a public censure.” Maybe when her lawyer described the bargain to her, she just shrugged her shoulders and said, “Whatever.”
Plainly, like her client, Donald Trump, she’s a pure transactionalist, ready to do whatever it takes to escape severe penalties. Indeed, her stipulation itself acknowledges her “selfish motive” as an aggravating circumstance.
When saving one’s own skin is top of mind, one may not pay attention to an important precedent one is establishing—in this case, for attorney discipline.
As Ellis’s stipulation recites, “The parties could not locate published attorney discipline cases based on similar facts,” where an attorney’s false statements do not involve public criticism of a judge or false representations made to a court or other tribunal.
Though a legal advisor to Trump, Ellis was never his counsel of record in a case. Even the New York Court’s suspension of Giuliani’s license, which referred to his false public statements, might never have occurred but for his misrepresentations to a federal district court in Pennsylvania on behalf of Trump.
Ellis’s statements, by contrast, were made in the media and purely for political purposes. First Amendment protections broadly apply in these arenas, and—whether you agree or not—some of the country’s foremost legal experts believe that free speech rights raise formidable barriers to disciplining lawyers who deliberately engage in political lies.
But now, thanks to Jenna Ellis, we have a discipline case on the record against a lawyer whose only misconduct was in misleading the public in the public square. We can thank a lawyer, who, like her client, seems to care not a whit about precedent or principle when it comes to protecting herself.