How Did the Trump Legal Team Weigh in on New York DA Alvin Bragg's Prosecution of Trump According to the Rules of Professional Conduct?

In-Depth Review

The two earlier Supreme Court newsletters (published on August 7, 2024, and August 13, 2024, respectively) established the U.S Supreme Court’s burial of the professional misconduct of New York DA Alvin Bragg. These newsletters are here. 

https://therunnymedereport.substack.com/p/the-supreme-court-buries-professional

https://therunnymedereport.substack.com/p/the-supreme-court-buries-professional-ee1

Then Part One of DA Alvin Bragg (published on August 20, 2024) established his professional background and blue-ribbon credentials in education, training and skill in the field of protecting defendant rights in the prosecution of criminal cases. That newsletter is here.

https://therunnymedereport.substack.com/p/this-is-the-professional-misconduct

Then Part Two of DA Alvin Bragg (published on August 27, 2024) established DA Bragg being passive while his lead prosecutor, Mark Pomerantz, published damning comments against Donald Trump to the New York Times, saying that Trump is guilty of numerous felonies from Pomerantz’s prosecutorial investigation. The link to that newsletter is here.

https://therunnymedereport.substack.com/p/this-is-the-professional-misconduct-098

Additionally, DA Bragg allowed this to happen.

Further, Part Three of DA Alvin Bragg (published on September 4, 2024) established that DA Bragg remained passive in allowing former Lead Prosecutor Pomerantz to authorize a tell-all book (published by Simon and Schuster) against Trump in again suggesting that Trump was guilty of numerous felonies.

The link to Part Three of DA Alvin Bragg is here.

https://therunnymedereport.substack.com/p/this-is-the-professional-misconduct-501

Then Part Four of DA Alvin Bragg, published on September 13, 2024, showed that DA Bragg remained passive as former Lead Prosecutor Pomerantz piled on damning negative extrajudicial publicity against Trump in the stacking of alleged crimes against Trump in his tell-all book.  And in showing that DA Bragg got the benefit as Trump was found guilty of 34 counts of falsifying business records in the Stephanie Clifford/Stormy Daniels case (characterized as the hush-money case) on May 30, 2024. The link to Part Four of DA Alvin Bragg is here.

https://therunnymedereport.substack.com/p/this-is-the-professional-misconduct-4e2

Then Part Five of DA Alvin Bragg, published on September 23, 2024, documented how DA Bragg received the benefit of former Lead prosecutor Mark Pomerantz’s stacking of extrajudicial guilt against Trump while adding his own such stacking of extrajudicial guilt against Trump in his CNN Interview and in his leak to the New York Times declaring that his office was optimistic about Trump’s guilt. The result of which meant that the jury hearing the Stephanie Clifford/Stormy Daniels case (characterized as the hush-money case) became an extrajudicially influenced one. The link to this newsletter is here:

https://therunnymedereport.substack.com/p/this-is-the-professional-misconduct-4e2

In-Depth Review of the Applicable Rules

As noted, DA Bragg was obligated to comply with Rules 3.6(a), 3.8(f) and 8.4(d) of the Rules of Professional Conduct. In short, he was obligated to not materially prejudice the adjudication of a case and not to heighten the condemnation of the accused in extrajudicial disseminations to the news media during investigation and before trial. Indeed, in stressing the critical importance of these prosecutor prohibitions, the Rules of Professional Conduct (Comments) red-flagged the following material prejudice subjects committed by a prosecutor during investigation and before trial:

   1 prosecutor comments regarding the character, credibility, reputation or criminal record of a party, suspect in a criminal investigation …; (Comment [5] subsection 1) (see rules/comments link below)

   2 prosecutor statements of his “any of his opinion as to the guilt or innocence of the defendant or the suspect in a criminal case or proceeding that could result in incarceration; (Comment [5] subsection 4) (see rules/comments link below)

   3 information that the lawyer [prosecutor) knows or reasonably should know is likely to be inadmissible as evidence at trial and that would, if disclosed, create a substantial risk of prejudicing an impartial trial (Comment [5] subsection 5) (see rules/comments link below)

Crossing that line of heightening condemnation against the suspect/accused and participating in those above three red-flagged subject areas as evidence of material prejudice puts the prosecutor in professional misconduct territory. Most importantly, under those same rules, DA Bragg was required to exercise reasonable care to assure that none of his investigators and assistants did any of this either.

Why is all this important? If those rules are broken, the natural consequence is that in a criminal case any potential jury becomes an extrajudicially influenced jury to the detriment of the accused defendant when the prosecutor (or lead prosecutor) prejudices him in statements made during investigation and before trial after indictment. In short, the law requires the suspect or accused to be presumed innocent and breaking these rules compromises that legal right. Here again are all these Rules of Professional Conduct. https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/model_rules_of_professional_conduct_table_of_contents/

Application of the Rules of Professional Conduct to what former Lead Prosecutor Mark Pomerantz and DA Alvin Bragg did

When former Lead Prosecutor Mark Pomerantz published in the New York Times that Trump was guilty of numerous felonies he heightened condemnation against Trump in violation of Rule 3.8(f), he presented his prohibited opinion of Trump’s guilt in violation of Rule 3.6(a) and he presented information that would be inadmissible at trial in creating a substantial risk of prejudicing an impartial jury in violation of Rule 3.6(a). In allowing these things to happen, DA Alvin Bragg was guilty under both Rule 3.6(a) and 3.8(f) for all three of these categories of offenses.

When former Lead Prosecutor Mark Pomerantz published his tell-all book implying that Trump was guilty of two different classifications of crimes, including the Stephanie Clifford/Stormy Daniels criminal case (characterized as the hush-money case) in six different scenarios, former Lead Prosecutor heightened condemnation against Trump in violation of Rule 3.8(f), he presented his prohibited opinion of Trump’s guilt in violation of Rule 3.6(a), he presented information in a book format that would be inadmissible at trial in creating a substantial risk of prejudicing an impartial jury in violation of Rule 3.6(a) and in doing so, he disparaged Trump’s character, credibility and reputation.  In allowing these things to happen, DA Alvin Bragg violated Rule 3.6a) and 3.8(f) for all six of these alleged Trump is guilty scenarios. (six is a conservative count inasmuch as the tell-all book is over 200 pages, replete with such prejudicial incriminations)

When DA Bragg implied in his CNN Interview that Trump would be guilty in his ongoing investigation of Trump, he violated Rule 3.8(f) in heightening condemnation against Trump, violated Rule 3.6(a) in presenting his opinion against Trump and violated 3.6(a) in disparaging Trump’s character, credibility and reputation.

When DA Bragg’s office leaked to the New York Times that he was optimistic about Trump’s guilt, he violated Rule 3.6(a) in presenting his opinion against Trump and in presenting information in a newspaper format that would be inadmissible at trial in creating a substantial risk of prejudicing an impartial jury in violation of Rule 3.6(a).

What Does the Trump Legal Team have to do with this?

Donald Trump had several lawyers defending him in the Stephanie Clifford/Stormy Daniels criminal case (characterized as the hush-money case). They were Todd Blanche, Susan Necheles and Emil Bove. In addition to these three, Trump also employed Alina Habba as his senior legal adviser who was his spokeswoman during the trial proceedings of this criminal case.

The four of them have one thing in common. They were employed by Trump to protect his legal rights. Yet, through the entire proceedings, all four were required to comply with the Rules of Professional Conduct in the face of what former Lead Prosecutor Mark Pomerantz and DA Alvin Bragg did in breaking the publicity rules of conduct in extrajudicially incriminating Trump through the news media of the New York Times, CNN and Simon and Schuster as noted above. And if they had complied with those rules, they would have been in position to protect Trump’s legal rights.

Here is a rundown of the four when former Lead Prosecutor Pomerantz extrajudicially published in the New York Times (with DA Bragg’s allowance) that Trump was guilty of numerous felonies before Trump was indicted in this Stephanie Clifford/Stormy Daniels criminal case (characterized as the hush-money case):

• Trial Attorney Todd Blanche had no public objection to this rules violation that compromised Trump’s legal rights

• Trial Attorney Susan Necheles had no public objection to this rules violation that compromised Trump’s legal rights

• Trial Attorney Emil Bove had no public objection to this rules violation

  that compromised Trump’s legal rights

• Senior Legal Adviser Alina Habba had no public objection to this rules violation that compromised Trump’s legal rights

Here is a rundown of the four when former Lead Prosecutor Pomerantz published a tell-all book incriminating Trump extrajudicially of two different classifications of crime, including the Stephanie Clifford/Stormy Daniels Case (characterized as the hush-money case with DA Bragg’s allowance

• Trial Attorney Todd Blanche had no public objection to this rules violation that compromised Trump’s legal rights

• Trial Attorney Susan Necheles had no public objection to this rules violation that compromised Trump’s legal rights

• Trial Attorney Emil Bove had no public objection to this rules violation

  that compromised Trump’s legal rights

• Senior Legal Adviser Alina Habba had no public objection to this rules violation that compromised Trump’s legal rights

Here is a rundown of the four upon knowing that DA Alvin Bragg publicly condemned Trump in a CNN interview while implying Trump’s guilt in the Stephanie Clifford/Stormy Daniels Case (characterized as the hush-money case) before indicting Trump

• Trial Attorney Todd Blanche had no public objection to this rules violation that compromised Trump’s legal rights

• Trial Attorney Susan Necheles had no public objection to this rules violation that compromised Trump’s legal rights

• Trial Attorney Emil Bove had no public objection to this rules violation

  that compromised Trump’s legal rights

• Senior Legal Adviser Alina Habba had no public objection to this rules violation that compromised Trump’s legal rights

Here is a rundown of the four upon being made aware that DA Bragg extrajudicially leaked to the New York Times that he was optimistic about Trump’s guilt in this Stephanie Clifford/Stormy Daniels criminal case before Trump was indicted on it:

• Trial Attorney Todd Blanche had no public objection to this rules violation that compromised Trump’s legal rights

• Trial Attorney Susan Necheles had no public objection to this rules violation that compromised Trump’s legal rights

• Trial Attorney Emil Bove had no public objection to this rules violation

  that compromised Trump’s legal rights

•  Senior Legal Adviser Alina Habba had no public objection to this rules violation

  that compromised Trump’s legal rights

Yet in spite of this passivity, the Rules of Professional Conduct require that a lawyer “shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” (see ABA Rule 1.1 in the Rules link above). It is not competent representation if the big four do not recognize the obvious “legal knowledge” that Trump’s rights were extrajudicially abused for all the world to see instead of being treated as presumed innocent.

The same rules say that as lawyers, all four were required to report the professional misconduct of the prosecutor if such prosecutor extrajudicially and illicitly prosecuted the suspect/defendant (See ABA Rule 8.3(a) in the Rules link above).

Magnifying this problem was the fact that, as noted above, the state bar association (known as the grievance committee of the Appellate Division of the New York Supreme Court) had no interest in prosecuting DA Bragg for his rules violations.

With the state bar association and all four doing nothing, the way was paved clear for DA Bragg to take away Trump’s legal right to be presumed innocent and his legal right to receive a fair jury trial unobstructed by these extrajudicial violations.

Overarchingly, the reason why complying with these rules of professional conduct is necessary is a simple one. The framers of both the U.S. Constitution — via the fifth and sixth amendment fair trial rights —and those rules of conduct envisaged written standards to keep the legal profession in check. That’s why these publicity prohibitions are codified and provide penalties up to disbarment for violators.

What is the Motive Behind the Passivity of the Big Four in the Clear Face of Duty?

Senior Adviser Attorney Alina Habba provided a penetrating eye-opening reason why the big four froze in the face of professional duty. In a September 20, 2024, interview with Jesse Watters on the Jesse Watters Prime Time show, Attorney Alina Habba had this to say when describing what Trump advocates can and cannot do for Trump: “If it is done by one of his lawyers we’d be disbarred, put in jail as they’re trying to do now for nothing.” And then this: “If you’re his lawyer you’re immediately going to get disbarred. All these things. This is sickness that is poisoning our culture.”

Here is the link to this interview:

https://www.foxnews.com/video/6362237985112

Again, back to the rules. Rule 2.1 says that “in representing a client, a lawyer shall exercise independent professional judgment and render candid advise …” Under that standard, if Senior Adviser Attorney Habba and the others of the big four are in fear of the state bar association, than that fear removes the ability of any of them to “exercise independent professional judgment” on behalf of their client, Donald Trump (see the Rules link above for Rule 2.1). Thus, the problem is that the big four cannot perform independently on behalf of their client if they are more worried about what the state bar association would do to them than being concerned about the protection of their client’s legal rights.

What is the Harm?

If the big four are so compromised by this fear of the state bar association than they won’t even see when the state bar association and the prosecutor are colluding together to break the publicity rules of professional conduct. The result is the big four are complicit with the state bar association and the prosecutor without even knowing it to the destruction of their client’s fair trial rights and their client’s legal right to be presumed innocent.

Is Unwittingness a Valid Excuse?

All lawyers —if they are to continue as lawyers —are required to know the rules of professional conduct. Indeed, if a lawyer is not grounded in those rules he or she cannot “provide competent representation of the client” as required by ABA Rule 1.1. Therefore, there can be no excuse for violating the rules of professional conduct by not reporting DA Alvin Bragg’s professional misconduct and the professional misconduct of the state bar association (in being complicit in allowing DA Bragg’s misconduct to go unhindered rather than penalizing him under those rules).