My D.C. Bar Complaint Against the President’s Lawyer, Joe diGenova

This morning I filed a complaint detailing my allegations of violations of Rules for Professional Responsibility against Trump’s attorney, Joseph diGenova. My complaint read as follows.

Joseph E. diGenova is an attorney currently licensed and in good standing with the District of Columbia Bar. He is a partner in the law firm of diGenova and Toensing. He is part of a team of lawyers representing the President of the United States in numerous, largely meritless, challenges to the 2020 election results. The President has publicly tweeted that diGenova is part of his legal team in this regard. https://twitter.com/realDonaldTrump/status/1327811527123103746

This request for disciplinary action is related to statements made by diGenova regarding Chris Krebs. Mr. Krebs is the Trump Administration’s former head of cybersecurity for the 2020 election. After the election Mr. Krebs made comments generally defending the security and integrity of the election. He made clear that this election had been the most secure in American history, and that there had been no wide scale voting fraud, as alleged by diGenova on behalf of the President. For these statements Mr. Krebs was fired by the President.

On November 30, 2020 diGenova appeared on the “Howie Carr Show,” a nationally syndicated and streamed radio show, and made the following statement:

“Anybody who thinks the election went well, like that idiot Krebs who used to be the head of cybersecurity. That guy is a class A moron. He should be drawn and quartered. Taken out at dawn and shot.”

This call for deadly violence was nationally broadcast by a man representing the President of the United States of America and was made in the context of that representation. The comments, including an explicit call to shoot Mr. Krebs, are particularly disturbing given the additional context. The President told the violence-committed group “Proud Boys” to “stand by” if needed after the election. The FBI also exposed another conservative group’s well-developed plot to kidnap and/or murder the Governor of Michigan.

The statement reflects poorly on the District of Columbia Bar and, as explained in detail below, plainly violated multiple provisions of the Bar’s rules for Professional Conduct.

Rule 3.6 prohibits a lawyer from making any extrajudicial statements “that the lawyer knows or reasonably should know will be disseminated by means of mass public communication and will create a serious and imminent threat of material prejudice to the proceeding.” DiGenova is involved in various proceedings before Federal and State judges and his statement threatens to materially prejudice those proceedings, if only because Mr. Krebs is a potential witness to those proceedings.

Rule 4.4 relates to a lawyer’s treatment of third parties, such as Mr. Krebs, and prohibit actions by an attorney having “no substantial purpose other than to embarrass” the third party. The statement by diGinova does not reflect appropriate representation of his client and is calculated with no other substantial purpose than to embarrass Mr. Krebs and subject him to danger from violent groups or individuals sympathetic the President’s cause.

Rule 8.4 relates to attorney misconduct. Rule 8.4(b) makes clear that it is professional misconduct “to commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.” DiGenova’s call to action for violence against Mr. Krebs potentially violates the following criminal provisions.

D.C. Criminal Code 22–407, threats to do bodily harm.

18 U.S. Code § 875(c), interstate transmission of a threat to kidnap or injure another.

18 U.S. Code § 1512, for witness tampering/intimidation. As America’s preeminent public official expert in election cybersecurity at the time of the election, Mr. Krebs is clearly a potential witness in the legal challenges to the integrity of the election advanced by diGenova on behalf of the President of the United States. Further, Krebs’ statements while in that capacity suggest that he would be a witness for the side opposed by diGenova. Mr. diGenova’s call for terroristic execution of this potential witness is a clear violation of 18 U.S.C. § 1512(a)(2).

Because such witness tampering/intimidation could seriously interfere with the administration of justice, the statement made by diGenova should also be viewed as violating Rule 8.4(d). Comments in association with this rule state that it should be interpreted “flexibly” and includes “offensive, abusive, or harassing conduct.”

For the reasons set forth above, I urge the District of Columbia Bar to investigate Mr. diGenova and to impose appropriate disciplinary action.