February 13th, 2024
FOR IMMEDIATE RELEASE
Washington, DC – Today, Elise Stefanik filed a bar complaint against New York Attorney General Letitia James for violating the Rules of Professional Conduct by conducting a biased investigation and prosecution of President Trump and by attacking President Trump through extrajudicial statements during a trial. Elise Stefanik respectfully requests that the Attorney Grievance Committee conduct an investigation and issue an immediate interim suspension, disbar Ms. James as an attorney and counselor-at-law, or suspend Ms. James.
Elise Stefanik stated:
“As a Representative of New York committed to upholding the integrity of our legal system, I have found New York Attorney General Letitia James’ handling of the investigation and trial of President Donald Trump nothing short of shameful. It is evident that Attorney General James violated fundamental principles of fairness and impartiality by engaging in a relentless lawfare campaign against President Trump, marked by over 50 prejudicial comments on social media during just the first five weeks of the trial. It’s been her explicit mission since she announced her run for office to go after President Trump. Such behavior not only undermines the integrity of the legal process but also violates the Rules of Professional Conduct to which James, as a licensed attorney, is bound.
While all Americans possess the right to express their opinions on matters of public interest, attorneys–particularly state attorneys general–are held to a higher standard due to their unique role as officers of the court. Her conduct not only constitutes a breach of her professional responsibilities but also risks irreparable harm to the public’s already eroding trust in our legal institutions. I urge the Attorney Grievance Committee to immediately conduct a thorough investigation and take appropriate disciplinary action, including the immediate interim suspension, disbarment, or suspension of Attorney General James, to uphold the integrity of our legal profession and ensure justice is served impartially.”
Read more in NBC News here.
Read the introduction to Elise Stefanik’s bar complaint below:
Post Office Box 500
Glens Falls, New York 12801
February 12, 2024
Committee on Professional Standards
286 Washington Avenue Extension
Albany, New York 12203
New York Attorney General Letitia James violated the Rules of Professional Conduct by conducting a biased investigation and prosecution of President Trump and by attacking President Trump through extrajudicial statements during a trial. In just the first five weeks of the trial that began in October 2023–before I stopped counting–Ms. James made over 50 highly inappropriate and prejudicial comments on social media. This complaint respectfully requests that the Attorney Grievance Committee conduct an investigation and issue an immediate interim suspension, disbar Ms. James as an attorney and counselor-at-law, or suspend Ms. James.
The investigation and trial of President Trump are matters of enormous public interest and concern. All citizens, including Ms. James, have rights under the First Amendment to speak freely on matters of public interest and concern. However, as a licensed attorney, Ms. James is subject to special rules and responsibilities under New York’s Rules of Professional Conduct. These rules create specific restrictions that apply only to attorneys, not to ordinary citizens or members of the general public. See Gentile v. State Bar of Nevada, 501 U.S. 1030, 1074 (1991) (distinguishing the lawyer’s more constrained latitude to speak about pending cases as an “officer of the court,” from “the common rights of citizens” to speak freely about judicial matters). As set forth herein, Ms. James’ conduct appears to violate her special responsibilities as an attorney, and her actions warrant discipline.
I. The New York Rules of Professional Conduct apply to Ms. James.
As an attorney licensed in New York, Ms. James is subject to the Rules of Professional Conduct. See Matter of Giuliani, 146 N.Y.S.3d 266, 268 (N.Y. App. Div. 2021) (“All attorneys who are licensed to practice law in New York are subject to the Rules of Conduct, . . .”); 22 NYCRR 1240.1(a). It is well-settled that the Rules of Professional Conduct apply even to public officials in New York like Ms. James. “Holding a public office . . . is not a shield behind which breaches of professional ethics, otherwise warranting disciplinary action, are permitted. Rather, a lawyer who holds public office must not only fulfill the duties and responsibilities of that office, but must also comply with the Bar’s ethical standards.” Matter of Malone, 480 N.Y.S.2d 603, 606 (N.Y. App. Div. 1984), aff’d sub nom. In Matter of Malone, 482 N.E.2d 565 (N.Y. 1985). In fact, service as the New York Attorney General has been considered an aggravating factor in a previous disciplinary action because the Attorney General “had substantial experience in the practice of law at the time of this conduct.” Matter of Schneiderman, 144 N.Y.S.3d 436, 438 (N.Y. App. Div. 2021). At the time of this complaint, Ms. James has been licensed as an attorney in New York for more than 30 years.1
The Rules of Professional Conduct begin by outlining the broad duties and obligations of each lawyer:
As an officer of the legal system, each lawyer has a duty to uphold the legal process; to demonstrate respect for the legal system; to seek improvement of the law; and to promote access to the legal system and the administration of justice. In addition, a lawyer should further the public’s understanding of and confidence in the rule of law and the justice system because, in a constitutional democracy, legal institutions depend on popular participation and support to maintain their authority.
Preamble to the Rules of Professional Conduct, ¶ 1. The Rules of Professional Conduct “concern conduct both inside and outside the courtroom.” Matter of Giuliani, 146 N.Y.S.3d at 269–70 (internal citations omitted).
Violation of the Rules of Professional Conduct may be professionally disciplined, such as by disbarment or suspension. N.Y. Judiciary Law § 90(2). “The ultimate purpose of disciplinary proceedings is to protect the public in its reliance upon the integrity and responsibility of the legal profession.” In re Nearing, 229 N.Y.S.2d 567, 569 (N.Y. App. Div. 1962) (citing In re Gould, 164 N.Y.S.2d 48, 49 (N.Y. App. Div. 1957)). Attorney discipline protects the public by providing “notice to the profession that certain conduct will not be tolerated and is thereby an assurance to the public that, as far as known, certain taints do not exist, because, if discovered, they would be eradicated. In re Nearing, 229 N.Y.S.2d at 569 (internal citation omitted).
This Attorney Grievance Committee has jurisdiction over this complaint because the Attorney General’s primary office is in the state capitol building in Albany, New York. See Matter of Malone, 480 N.Y.S.2d at 605-06.
II. Ms. James’ personal vendetta against President Trump raises serious ethical concerns.
Ms. James has pursued a personal vendetta against President Trump since he first was elected President of the United States. Ms. James’ comments as Attorney General and as a candidate for Attorney General adversely reflect on her fitness as a lawyer and implicate Rule 8.4(h) of the New York Rules of Professional Conduct.
A. Rule of Professional Conduct 8.4(h).
Rule 8.4(h) states, “A lawyer or law firm shall not: … (h) engage in any other conduct that adversely reflects on the lawyer’s fitness as a lawyer.” Statements to the media have served as the basis for disciplinary sanctions against lawyers under Rule 8.4(h). See, e.g., Matter of Holtzman, 577 N.E.2d 30, 32 (N.Y. 1991); Matter of Giuliani, 146 N.Y.S.3d at 270 (“[T]he AGC relies upon statements that respondent made following the 2020 election at press conferences, state legislative hearings, radio broadcasts (as both a guest and host), podcasts, television appearances and one court appearance.”). In Holtzman, the Court of Appeals affirmed disciplinary sanctions against an attorney who made a false allegation about a judge to the media. Matter of Holtzman, 577 N.E.2d at 33 (“[P]etitioner was plainly on notice that her conduct in this case, involving public dissemination of a specific accusation of improper judicial conduct under the circumstances described, could be held to reflect adversely on her fitness to practice law”).
B. Ms. James’ actions and comments suggest she has violated the Rules of Professional Conduct.
Before she became a candidate for Attorney General, Ms. James displayed extreme partisan hostility toward President Trump. During President Trump’s first year in office, Ms. James led “die-in” protests against President Trump because “we are all being killed by this administration.”2 Ms. James also accused President Trump’s administration of “blatant disregard for human lives.”3 Ms. James bragged about her leadership of, and dedication to, the “resistance” movement in late 2017: “I’ve been leading the resistance against Donald Trump in NYC and will only continue to do so in every way possible.”4
Ms. James campaigned for attorney general on a platform explicitly focused on attacking President Trump and promising investigations of him. During her campaign, Ms. James called President Trump a “con man” and a “carnival barker.”5 In a 2018 campaign debate, Ms. James explicitly promised to “focus on Donald Trump” if she were elected attorney general.6 Ms. James’ obsession with President Trump continued in her 2018 election night victory speech, when she said her victory “was about that man in the White House who can’t go a day without threatening our fundamental rights,” and pledged to “shin[e] a bright light into every dark corner of his real estate dealings.”7 During the transition period before she took office, James promised to “use every area of the law to investigate President Trump and his business transactions and that of his family as well.”8
Ms. James leveraged her campaign attacks against Donald Trump into fundraising appeals. In July 2018, Ms. James posted messages to ActBlue, a Democrat party and candidate fundraising platform, that “[i]n this fight against Donald Trump and his harmful administration, I need your help.”9
Ms. James did not just promise baseless investigations against President Trump. She also prejudged evidence she had not seen to call for criminal charges. As a candidate, Ms. James “made it clear that Trump would be her top target,” telling voters before she had been elected that “Trump should be indicted on criminal charges.”10 Before the primary election, Ms. James specifically called for President Trump to be indicted on criminal charges, including obstruction of justice, and accused him of money laundering through his real estate holdings.11 “Donald Trump’s days of defrauding Americans are coming to an end,” Ms. James promised.12
C. Ms. James’ personal vendetta implicates Rule 8.4(h).
Ms. James has displayed a personal vendetta against President Trump that renders her unable to impartially handle cases against President Trump. She used promises of investigations against President Trump to win votes and raise money in her campaign for Attorney General. Despite her clear bias, Ms. James has launched frivolous investigations and lawsuits against President Trump, his family, and his businesses. Ms. James also prejudged evidence she had not seen and called for criminal indictments on that basis. It should go without saying that the abuse of an attorney’s official position—especially an elective office—to pursue a personal vendetta violates the most basic ethical precepts.
As a lawyer, Ms. James should not have made these comments about President Trump. Having made these comments, Ms. James should have recused herself from any official action by her office involving President Trump.
Even legal commentators who politically oppose President Trump have recognized the ethical issues created by Ms. James’ statements. Now-Rep. Daniel Goldman, who served as lead impeachment counsel for the Democrat House Majority against President Trump, warned that Ms. James’ statements gave the appearance of “an individualized vendetta . . . It’s essential that prosecutors maintain their neutrality and an objective view of the facts and the evidence, no matter the politics involved.”13 Chuck Rosenberg, a former U.S. attorney, counsel to Robert Mueller, and chief of staff to James Comey, called for Ms. James to consider recusing herself from any matters involving President Trump because her comments before she became Attorney General “demonstrate a prejudgment of the facts and a political predisposition to the issues she now must manage apolitically and dispassionately. Every good prosecutor knows those comments are a problem.”14 Rosenberg renewed his calls for Ms. James to consider recusal again in 2021 because she “publicly prejudged” matters involving President Trump and “her prior remarks give rise to a perception of unfairness.”15
As the Supreme Court said in a case involving President Trump, the law seeks to protect against the abuse of the political motivations of state prosecutors. Trump v. Vance, 591 U.S. ___, 140 S. Ct. 2412, 2428 (2020). Ms. James’ extreme partisanship, lack of impartiality, personal vendetta, and jumping to baseless conclusions adversely reflects on Ms. James’ fitness as a lawyer under Rule 8.4(h). Ms. James’ refusal to recuse from matters that she prejudged and is biased also adversely reflects on Ms. James’ fitness as a lawyer under Rule 8.4(h).
The Attorney Grievance Committee should suspend Ms. James on an interim basis while it investigates whether Ms. James’ pursuit of her personal vendetta violated Rule 8.4(h). If the Committee determines that Ms. James violated Rule 8.4(h), she should be disbarred or suspended.
III. Ms. James’ trial publicity against President Trump raises serious ethical concerns.
In September 2021, Ms. James filed a civil lawsuit against President Trump, members of his family, his business, and some business employees.16 From the very beginning of the case and continuing through trial, Ms. James has repeatedly made public statements personally attacking President Trump, publicly commenting on and mischaracterizing evidence, attacking the credibility of witnesses, and maligning President Trump and other parties and witnesses when discussing the lawsuit, even as trial on these matters remains ongoing.
At the press conference announcing the lawsuit against President Trump, Ms. James accused President Trump of violating the law, falsely inflating his net worth and cheating the system—all obvious prejudicial extrajudicial comments. “For too long, powerful, wealthy people in this country have operated as if the rules do not apply to them,” Ms. James claimed. “Donald Trump stands out as among the most egregious examples of this misconduct. . . . With the help of his children and senior executives at the Trump Organization, Donald Trump falsely inflated his net worth by billions of dollars to unjustly enrich himself and cheat the system.”17 Ms. James then mocked President Trump’s best-selling book, “The Art of the Deal”: “Claiming you have money that you do not have does not amount to the art of the deal. It’s the art of the steal,” Ms. James said.18 Ms. James has held other press conferences and given other media interviews since filing the lawsuit against President Trump, including during the trial.
Ms. James also has communicated through social media about President Trump and the trial. Just during the first five weeks of the trial starting in October 2023, Ms. James posted about President Trump and his family more than 50 times on her official X account.19 As of November 9, 2023, when I stopped tallying, these posts have been viewed more than 54 million times.20 Screenshots of these posts are provided in the Appendix and are incorporated herein by reference. In these posts and other public statements made while the trial is on-going, Ms. James has accused President Trump of illegal conduct, called President Trump and members of his family liars, and personally attacked President Trump.
Ms. James’ comments during the lawsuit and trial appear to violate Rule 3.6 and Rule 8.4(h) of the New York Rules of Professional Conduct.
A. Rule of Professional Conduct 3.6.
Rule 3.6 governs trial publicity. According to Rule 3.6(a), “A lawyer who is participating in or has participated in a criminal or civil matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” “Knowingly . . . denotes actual knowledge of the fact in question. A person’s knowledge may be inferred from circumstances.” Rule 1.0(k). Rule 3.6 applies to prejudicial comments made during non-jury proceedings. Rule 3.6 cmt. 6.
B. Ms. James’ legal conclusions about President Trump’s conduct.
During the trial, Ms. James repeatedly made prejudicial public comments about President Trump’s conduct, accusing him of acting fraudulently, making false statements, cheating, and committing other illegal acts. For example, just in the first five weeks after the trial began in October 2023, Ms. James has made the following extrajudicial statements:
- “When it comes to running a company, Donald Trump doesn’t care about the facts. Instead, he engages in fraud to enrich himself and his family.”21
- “Donald Trump and the other defendants have committed persistent and repeated fraud.”22
- “Regardless of Donald Trump’s fantasy beliefs, here are the facts: He inflated his personal net worth and engaged in years of financial fraud to enrich himself and his family.”23
- “Donald Trump and the Trump Organization filed fraudulent financial statements, inflating his personal net worth by billions.”24
- “For years, Trump evaded justice for his repeated fraud, and as we continue to present our case, we will show just how much he unfairly benefited.”25
- “Over the course of that investigation, we uncovered Donald Trump’s incredible fraud and all the ways he used that fraud to enrich himself.”26
- “For years, Donald Trump falsely inflated his net worth to enrich himself and cheat the system.”27
- “We presented our opening statement, called our first witness to the stand, and began laying out how Trump cheated the system to enrich himself and his family.”28
- “The testimony of these individuals, and the accompanying exhibits, show the incredible scale and scope of Donald Trump’s fraudulent business practices and that they were used to enrich himself and his company.”29
- “In this country, there are consequences for this type of persistent fraud, and we look forward to demonstrating the full extent of his fraud and illegality during trial.”30
- “And now we look forward to disgorgement and to the remaining counts in our action against Donald Trump and his repeated and consistent fraud against the citizens of the great state of New York.”31
C. Ms. James’ accusations that President Trump and other Trump family members have lied.
During the trial, Ms. James repeatedly accused President Trump and members of his family of lying, thus publicly commenting on the credibility of witnesses while trial is ongoing. For example, just in the first five weeks after the trial began in October 2023, Ms. James has publicly stated:
- “[President Trump] has repeatedly and consistently lied about the value of his assets to fraudulently enrich himself and his family.”32
- “Donald Trump directed those around him to lie and scheme to make his fantasy a reality. But fraud is very real.”33
- “We have proven that Donald Trump lied about his net worth to enrich himself and cheat the system.”34
- “Donald Trump might lie, but the facts and the numbers don’t.”35
- “Trump can keep spreading rumors. Trump can keep lying. But the truth always prevails.”36
- “[Donald Trump Jr. and Eric Trump] pretend that they were not involved in their family’s fraudulent business. But the facts tell a very different story.”37
- “In fact, just a week after he was confronted with the truth that his father’s triplex was three times smaller than the statement of financial condition said it was, Donald Trump, Jr. continued to lie.”38
- “And [Eric Trump] was intimately involved in lying about the values of properties . . . .”39
- “In a deposition, Eric Trump claimed he had nothing to do with valuations and property development. He said he did not sign documents or speak to real estate professionals. He said he just poured concrete. But we know that is not the truth.”40
- “For years, the defendants built a business on lies and misrepresentations.”41
- “When you have built an empire on falsehoods, the truth is your only enemy.”42
D. Ms. James’ personal attacks against President Trump.
During the first five weeks of the trial that began in October 2023, Ms. James repeatedly launched personal attacks against President Trump. For example, Ms. James made the following extrajudicial statements:
- “The Donald Trump show is over.”43
- “Donald Trump lives in a fantasy land.”44
- President Trump is “fomenting violence” and “race-baiting” with comments about the trial that were “offensive,” “baseless,” and “void of any facts and/or any evidence.”45
- President Trump is making “dangerous, racist comments.”46
- President Trump’s appearance in court for a case in which he is a party is “nothing more than a political stunt, a fundraising stop.”47
- “Donald Trump is a bully, but he is not the first bully we’ve stood up to, and he will not be the last.”48
- “Donald Trump can lie, complain, and throw insults around as much as he wants.”49
- “And while I am sure [President Trump] will try to hide his wrongdoing behind taunts, threats, and name calling, . . .”50
- “Trump can try to hide his wrongdoings behind taunts and threats, . . .”51
- “This morning, Donald Trump resorted to bullying and name calling, he gave rambling answers and hurled insults from the witness stand to distract from the truth.”52
E. Ms. James’ trial comments appear to violate Rule3.6 and Rule8.4(h).
Once again, Rule 3.6(a) provides, “A lawyer who is participating in or has participated in a criminal or civil matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” Ms. James appears to have violated this rule through her numerous extrajudicial statements about President Trump during the trial.
Participation. Ms. James is participating in the civil lawsuit and trial against President Trump. Ms. James brought the lawsuit through the office that she leads; her name is in the lawsuit caption and signature block.53 Ms. James also has personally attended the trial.54
Extrajudicial statements. Ms. James made numerous extrajudicial statements about President Trump during the trial. She held press conferences and gave interviews and statements about the case since the day she filed it,55 as well as on virtually every day of the trial.56 Through her official social media account, Ms. James also has posted more than 50 times about President Trump’s trial in just the first five weeks.57 These posts often include videos of Ms. James discussing her views of witness testimony and evidence received in court that day. Ms. James has effectively appointed herself to the role of a real-time, daily, highly partisan public commentator on the trial and the witnesses testifying at trial.
Knowledge of public dissemination. Ms. James knows or reasonably should know that her extrajudicial statements about President Trump during his trial will be disseminated by means of public communication. In fact, by posting on social media to tens of thousands of followers and giving public press conferences, she plainly intends for such dissemination to occur. President Trump is a former President of the United States and the leading candidate for President in 2024. This trial has received global media attention, in keeping with the global media attention that President Trump has received since at least 2015. Indeed, Ms. James knows or reasonably should know that comments about President Trump will be disseminated by means of public communication because she has personally benefited from this dissemination by making President Trump the focal point of her first campaign for Attorney General in 2018.58
As further evidence of her knowledge, Ms. James has specifically sought national attention for her lawsuit and trial against President Trump. Ms. James announced the lawsuit at a press conference that received national attention.59 She also has publicized developments in the case to receive national attention.60 In addition, Ms. James’ posts and press conferences during the trial have been reported in numerous publications in the United States and almost every continent around the world.61
Ms. James also has personally and publicly disseminated extrajudicial statements about President Trump during his trial. Ms. James has posted on X more than 50 times about President Trump during the first five weeks of the trial alone.62 Ms. James had more than 557,000 followers on X who received her posts about President Trump.63 Engagement statistics publicly provided by X and visible to Ms. James on each social media post show that Ms. James’ posts about President Trump during the first five weeks of the trial have been viewed more than 54 million times.64
For these reasons, Ms. James knows or reasonably should know that her extrajudicial statements about President Trump and his trial will be disseminated by means of public communication.
Prejudice. Ms. James knows or reasonably should know that her extrajudicial statements about President Trump and his trial will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter. Indeed, Ms. James’ conduct supports a compelling inference that she is deliberately intending to influence the outcome of the matter by creating a powerful media narrative pre-judging the defendants’ liability. Ms. James’ extrajudicial statements could influence the judge or appellate judges that hear the comments. See, e.g., Patterson, 205 U.S. at 462-63. These comments also may affect public perception of the judgment and appellate decisions reviewing that judgment, such as by making the public more receptive to an unlawful judgment against President Trump, his family, and his business. Finally, these comments by Ms. James could prejudice future jurors in President Trump’s criminal trials, one of which involves allegations of fraudulent business documents brought by the Manhattan District Attorney. Ms. James’ office has attorneys cross-designated with the Manhattan District Attorney’s Office to work on the criminal prosecution of President Trump.
It is no defense that others, including President Trump, have commented on the trial. First, President Trump is not a lawyer subject to the Rules of Professional Conduct. Second, Ms. James’ client is the State of New York. A reasonable lawyer would not believe that “a public response is required in order to avoid prejudice” to the State of New York. Rule 3.6 cmt 7. The State of New York has not been the subject of criticism as a result of the trial against President Trump. Nor do Ms. James’ comments “avoid prejudice” to the State of New York or “have the salutary effect of lessening any resulting adverse impact on the adjudicative proceeding.” Id.
In addition, Ms. James’ comments would only be permitted “provided they contain only such information as is necessary to mitigate undue prejudice created by the statements made by others.” Id. Ms. James comments have not been so limited. Instead, Ms. James has made affirmative statements about President Trump and her views on the evidence in the case that were not responsive to any attacks and made her own personal attacks against President Trump and members of his family.65
Standards relating to defamation actions also do not provide a defense. “Neither this Court nor the Supreme Court has ever extended the [New York Times Co. v.] Sullivan standard to lawyer discipline and we decline to do so here.” Matter of Holtzman, 577 N.E.2d at 34 (N.Y. 1991). “Unlike defamation cases, professional misconduct, although it may directly affect an individual, is not punished for the benefit of the affected person; the wrong is against society as a whole, the preservation of a fair, impartial judicial system, and the system of justice as it has evolved for generations.” Id. (internal quotation marks omitted).
Ms. James’ accusations of fraud and illegal conduct, claims of lies, and personal attacks against President Trump suggest she has violated Rule 3.6’s restrictions on trial publicity. They also adversely reflect on Ms. James’ fitness as a lawyer under Rule 8.4(h). The Attorney Grievance Committee should suspend Ms. James on an interim basis while it investigates these allegations. If the Committee determines that Ms. James violated Rule 3.6 and Rule 8.4(h), she should be disbarred or suspended.
IV. Ms. James’ comments as a prosecutor against President Trump raise serious ethical concerns.
Prosecutors are held to a high ethical standard for their extrajudicial statements. Ms. James’ comments about President Trump fall far short of this high standard.
A. Rules of Professional Conduct 3.6 and 3.8.
Rule 3.6 restricts extrajudicial statements by lawyers in criminal matters that could result in incarceration. Extrajudicial statements are likely to materially prejudice a criminal matter if the statement relates to: the character, credibility, or reputation of a party or suspect in a criminal investigation; the contents of a statement given by a defendant or suspect; or “any opinion as to the guilt or innocence of a defendant or suspect in a criminal matter that could result in incarceration.” Rule 3.6(b)(1), (2), (4).
Prosecutors are held to high standards to protect defendants and preserve justice. The final comment to Rule 3.6 on trial publicity states, “See Rule 3.8 Comment  for additional duties of prosecutors in connection with extrajudicial statements about criminal proceedings.” Rule 3.6 cmt. 8. Rule 3.8 sets forth “Special Responsibilities of Prosecutors and Other Government Lawyers.” Comment 5 to this rule provides:
Rule 3.6 prohibits extrajudicial statements that have a substantial likelihood of prejudicing an adjudicatory proceeding. In the context of a criminal prosecution, a prosecutor’s extrajudicial statement can create the additional problem of increasing public condemnation of the accused. Although the announcement of an indictment, for example, will necessarily have severe consequences for the accused, a prosecutor can, and should, avoid comments that have no legitimate law enforcement purpose and have a substantial likelihood of increasing public opprobrium against the accused. . . .
Rule 3.8 cmt. 5.
The U.S. Supreme Court has emphasized the importance of professional disciplinary actions against prosecutors: “a prosecutor stands perhaps unique, among officials whose acts could deprive persons of constitutional rights, in his amenability to professional discipline by an association of his peers.” Imbler v. Pachtman, 424 U.S. 409, 429 (1976); see also Matter of Malone, 480 N.Y.S.2d at 607 (rejecting “respondent’s argument that as a public official exercising prosecutorial and investigative discretion he should be immune from disciplinary action”).
B. Ms. James has participated in criminal investigations and prosecutions of President Trump.
In May 2021, Ms. James announced that she was opening a criminal investigation into the Trump Organization.66 “We are now actively investigating the Trump Organization in a criminal capacity, along with the Manhattan DA,” Ms. James’ office reported.67 When Ms. James announced her civil lawsuit against President Trump and the Trump Organization, she claimed to have uncovered evidence of potential crimes by President Trump and sent criminal referrals to the U.S. Attorney’s Office and the Internal Revenue Service.68 At that time, Ms. James did not announce the closure of her office’s criminal investigation into the Trump Organization.
Ms. James also has formally partnered in the criminal investigation of President Trump and prosecution of the Trump Organization. Since at least 2021, Ms. James assigned at least two of her assistant attorneys general to the Manhattan DA’s office, where they were cross-designated as district attorneys.69 One of Ms. James’ assistant attorneys general who was detailed to the Manhattan DA’s office and cross-designated as a district attorney was Gary Fishman, who at the same time was leading Ms. James’ investigation into the Trump Organization.70
In December 2022—after Ms. James had filed her civil lawsuit and sought a preliminary injunction against President Trump and his business—Ms. James issued a press release taking credit for a guilty verdict against the Trump Organization.71 According to the press release, “The Office of the Attorney General (OAG), under Attorney General James, worked closely with the Manhattan District Attorney’s (DA) Office to investigate and uncover a scheme employed by the Trump Organization to avoid paying taxes.”72 The press release also identified Mr. Fishman and another assistant attorney general who had “handled” the matter for Ms. James’ office.
In April 2023, the Manhattan DA announced a 34-count felony indictment of President Trump.73 The charges related to allegedly “falsifying New York business records.”74 No public reporting has been located to determine whether Ms. James or her cross-designated attorneys are assisting the Manhattan DA with this prosecution, though the circumstances indicate that such participation is likely.
Ms. James also reportedly considered indicting President Trump on criminal racketeering charges.75 The November 2023 report wondered why “the joint AG-DA team still hasn’t filed those charges.”76
C. Ms. James’ comments appear to violate Rule 3.6 and Rule 8.4(h).
The elements of Rule 3.6 are again met by Ms. James’ comments in her role as a prosecutor.
Participation. Ms. James is a lawyer who is participating in and/or has participated in a criminal matter against President Trump. Ms. James publicly announced that she was opening a criminal investigation of the Trump Organization. She claimed to have found evidence of potential crimes by President Trump. She also reportedly considered filing criminal racketeering charges against President Trump.
In addition to these direct actions, Rule 3.6(e) applies to Ms. James because she is a lawyer associated in a government agency with a lawyer subject to Rule 3.6(a). Ms. James thus cannot make a statement prohibited by Rule 3.6(a). Ms. James has partnered with the Manhattan DA to bring criminal charges against the Trump Organization. Ms. James’ attorneys have been cross- designated as assistant district attorneys in the Manhattan DA’s office. An investigation should be conducted to determine whether Ms. James or any of her attorneys have participated in the Manhattan DA’s pending criminal indictment against President Trump. Any participation by Ms. James or her office in this indictment would affect Ms. James’ public comments under Rule 3.6(e).
Extrajudicial statements. As discussed in Section III.E and incorporated herein by reference, Ms. James has made extrajudicial statements about President Trump, his family, and his business.
Knowledge of dissemination. As discussed in Section III.E and incorporated herein by reference, Ms. James knows or reasonably should know that her extrajudicial statements will be disseminated by means of public communication.
Prejudice. In addition to the discussion in Section III.E, which is incorporated herein by reference, Ms. James’ extrajudicial statements are likely to materially prejudice a criminal matter or any other proceeding that could result in incarceration. See Rule 3.6(b). Ms. James’ extrajudicial statements have attacked the character, credibility, and reputation of President Trump, who is a defendant in the Manhattan DA’s criminal action and is and/or has been a suspect and/or target in other announced or unannounced investigations by Ms. James’ office or by her cross-designated attorneys in the Manhattan DA’s office. Ms. James has attacked the expected testimony of President Trump and statements he has made. Finally, Ms. James’ extrajudicial statements have opined as to the guilt or innocence of President Trump.
Ms. James has not limited her extrajudicial statements to those set forth in Rule 3.6(c). No law enforcement purpose exists for Ms. James’ comments. And as previously discussed in Section III.E and incorporated herein by reference, Ms. James’ extrajudicial statements do not satisfy the exception in Rule 3.6(d).
As a prosecutor in one or more criminal matters involving President Trump, Ms. James’ extrajudicial statements about President Trump raise serious concerns that she violated Rule 3.6 for trial publicity. They also adversely reflect on Ms. James’ fitness as a lawyer under Rule 8.4(h).
The Attorney Grievance Committee should suspend Ms. James on an interim basis while it investigates whether Ms. James’ extrajudicial statements violated Rule 3.6 and Rule 8.4(h). If the Committee determines that Ms. James violated these provisions, she should be disbarred or suspended.
V. An interim suspension of Ms. James’ license is justified and necessary.
In 2021, the Attorney Grievance Committee obtained an interim suspension of former New York City Mayor Rudy Giuliani. See Matter of Giuliani, 146 N.Y.S.3d at 283. The Appellate Division found that “[v]iolation of the Rules of Professional Conduct in and of themselves necessarily means that there is harm to the public.” Id. at 280. As set forth in this complaint, there is reason to believe that Ms. James has violated multiple Rules of Professional Conduct. The public thus has been harmed.
The Appellate Division evaluated several factors in its analysis of an interim suspension. Seriousness of the offense is a factor. “[W]hen the underlying uncontroverted evidence of professional misconduct is very serious, the continued risk of immediate harm to the public during the pendency of the underlying disciplinary proceeding is unacceptable.” Id. at 281. Here, the volume of Ms. James’ extrajudicial statements in just the first five weeks of trial that began in October 2023—multiple press conferences and more than 50 social media posts about the trial alone—and the aggressiveness of these statements provide serious evidence suggesting professional misconduct.
Another factor is whether “the misconduct is continuing.” Id. Ms. James’ conduct is ongoing. She commented almost daily on President Trump during his trial. It is expected that an appeal will be filed by at least one party after the trial concludes, and Ms. James’ past conduct indicates that she will continue making extrajudicial statements about President Trump during that appeal. In addition, Ms. James is associated with other matters pending in New York.
A final factor is whether “the underlying misconduct is likely to result in a substantial sanction at the conclusion of the formal disciplinary hearing proceeding.” Id. Ms. James’ voluminous extrajudicial statements as a prosecutor and civil lawyer merit a substantial sanction. Because there is immediate threat to the public, the Committee should seek an interim suspension of Ms. James’ license.
Ms. James violated multiple Rules of Professional Conduct through her comments during trial and by actions and comments that adversely reflect on her fitness as a lawyer. I urge the Attorney Grievance Committee to investigate Ms. James’ conduct. To remedy the significant and ongoing harm to the public and to protect the profession, Ms. James should be suspended on an interim basis, and then she should be disbarred or suspended.
Thank you for your consideration.