In recent years, public officials of both parties have accused law enforcement authorities of “weaponizing” criminal law, particularly against political opponents. Now, Republicans in the House of Representatives have shown that it is not only the criminal law that can be illegitimately weaponized — the rules of professional conduct for lawyers can serve as an additional weapon.
Many public officials, as lawyers, are subject to rules that are adopted by state courts and enforced by disciplinary arms of the state courts, which have the power to suspend or disbar lawyers who engage in professional misconduct. In its December 2024 Interim Report on the Failures and Politicization of the January 6th Select Committee, the House Administration Subcommittee on Oversight illustrated how professional conduct rules can be illegitimately weaponized against lawyers serving in public office.
The subcommittee’s ostensible purposes were to investigate the security failures at the Capitol on Jan. 6, 2021, and to review the work of the January 6 Select Committee, the prior House committee appointed by then-Speaker Nancy Pelosi (D-Calif.) to investigate the events of January 6. But the subcommittee’s interim report is largely a hatchet job on Liz Cheney of Wyoming, the Republican member of the House who sacrificed her political career by breaking ranks to support President Trump’s impeachment and serve as vice chair of the January 6 Select Committee.
The interim report takes the position that, because Cheney is a lawyer, she engaged in professional misconduct in her work as a member of the January 6 Select Committee. In particular, the report accuses Cheney of breaking the rules for lawyers in her interactions with a witness, Cassidy Hutchinson, who had served as an assistant to Mark Meadows, the White House chief of staff.
The accusations of professional misconduct are frankly ludicrous.
For example, the report condemns Cheney for taking a call from Hutchinson at a time when Hutchinson was represented by counsel. The report cites a D.C. Bar rule that provides: “During the course of representing a client, a lawyer shall not communicate or cause another to communicate about the subject of the representation with a person known to be represented by another lawyer in the matter.” The interim report quotes part of the rule but omits the crucial first phrase, “During the course of representing a client.” Any first-year law student could tell you that this rule did not apply to Cheney because she was not acting as a lawyer representing a client — rather, she was acting as a legislator participating in a legislative investigation. She had as much leeway to speak with witnesses as any nonlawyer member of Congress.
The House subcommittee’s interim report also accuses Cheney of improperly influencing Hutchinson to replace her first lawyer. As evidence, it relies on excerpts from books by both Cheney and Hutchinson. Taken together, these excerpts recount that, after testifying three times before the January 6 Select Committee, Cassidy was unhappy with her lawyer. She called Cheney to say that she was considering representing herself, but Cheney encouraged her to consult another lawyer to obtain independent advice. Hutchinson asked for a recommendation, and Cheney later called back with a list of attorneys at multiple firms. Hutchinson concludes her account: “I could not find the words to tell [Ms. Cheney] that the committee was giving me one of the greatest gifts I could have received: hope.”
The interim report portrays this as evidence that Cheney improperly influenced a witness’s testimony. But Cheney’s conduct, as described in both books, was entirely proper, whether in her role as a lawyer or as a member of Congress. Even in the course of representing a client in litigation — which was not Cheney’s role — a lawyer may encourage a witness to retain a lawyer and may give a witness a list of lawyers who may be available. That is a far cry from witness tampering.
The central premise of the report is that, in retrospect, some of the more incendiary portions of Hutchinson’s testimony were false — whether or not deliberately so. It blames Cheney and other members of the Select Committee for failing to do “due diligence” to verify Hutchinson’s testimony before presenting it. But, again, the professional rules governing lawyers do not apply to lawyers in Congress conducting a legislative investigation. And even if these rules generally did apply, they would not have required Cheney, as a lawyer, to verify the accuracy of a witness’s testimony.
Ironically, the interim report accuses the Select Committee of weaponizing the professional conduct rules by unjustifiably instigating an ethics complaint against Hutchinson’s first lawyer. But the report then opts to play tit for tat. It is high time for both sides to lay down their weapons, reserving accusations of criminal and professional misconduct for situations where they are justified, rather than using baseless accusations for rhetorical effect.
Bruce Green is a professor at Fordham Law School, where he directs the Stein Center for Law & Ethics.
