A recently released House of Representatives Subcommittee on Oversight report accuses former Wyoming Representative Liz Cheney of unethical conduct and concludes that “the Federal Bureau of Investigation must also investigate Representative Cheney.” The report is the House Republican majority’s investigation of the House’s own January 6 report, created when the Democrats still controlled the chamber. President-elect Donald Trump exulted that Cheney “could be in a lot of trouble.” The allegation is that Cheney violated the “anti-contact rule” of legal ethics, by communicating with Cassidy Hutchinson without going through her lawyer. And, because of that supposed violation, the Subcommittee urges the FBI to investigate Cheney for the crime of witness tampering (p. 117).
Whatever trouble Cheney may be in, it is not the legal ethics violation that the House report focuses upon. That accusation is based on a selective quotation of the anti-contact rule, leaving out the very words that prove that it does not apply. The effect is to create a public show that may well serve political purposes, but should be a complete nonstarter under any bona fide legal review.
The Background
In brief, the incidents in question occurred during the testimony of former Trump White House aide Cassidy Hutchinson before the House January 6 select committee. Hutchinson was represented at the time by attorney Stefan Passantino, a former ethics counsel in the Trump White House. Hutchinson eventually testified (p. 50) that Passantino told her, “We just want to focus on protecting the president. We all know you’re loyal.” She also testified (pp. 36-37) that Passantino coached her on how to rely on the answer “I don’t recall.” She said, “Stefan had said something to the effect of, ‘The committee doesn’t know what you can and can’t recall, so we want to be able to use that as much as we can unless you really, really remember something very clearly.” Hutchinson also testified: “I said, ‘But, if I do recall something but not every little detail, Stefan, can I still say I don’t recall?’ And he had said, ‘Yes.’” (Other details from the congressional transcripts are included in a bar ethics complaint against Passantino; the complaint was later dismissed after Hutchinson declined to cooperate with the inquiries.)
After the initial interviews, in which Hutchinson was represented by Passantino, Cheney secretly contacted Hutchinson through an intermediary, according to the report. The House report quotes excerpts from both Hutchinson’s and Cheney’s memoirs about what transpired. According to Cheney, Hutchinson told her she was inclined to represent herself going forward, but Cheney cautioned her to get independent legal advice. Hutchinson’s version is that she asked Cheney if she could recommend a lawyer, and Cheney provided some names. In any event, Hutchinson fired Passantino and retained counsel recommended by Cheney. Hutchinson’s subsequent testimony was very damaging to Trump. One might quibble with these facts about the communications between Cheney and Hutchinson or add more to them, but I assume they are generally correct for the purpose of this analysis.
The Accusation
The House report explains what the supposed ethics problem is for Cheney: a violation of the bar’s rule on communicating with a person represented by counsel (D.C. Rule 4.2(a)):
It is unusual – and potentially unethical – for a Member of Congress conducting an investigation to contact a witness if the Member knows that the individual is represented by legal counsel. Representative Cheney is an attorney, and an attorney who circumvents an individual’s legal representation would violate well-established attorney ethics standards and the Washington D.C. Bar Rules of Professional Conduct, regardless of who initiates the contact. While it is not clear how the D.C. Bar would apply this rule to an attorney who also sits as a Member of Congress, its rules state that “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 ….” This appears to be precisely what Representative Cheney did at this time. (Interim Report, p. 22)
The report cites Rule 4.2(a), and a 2011 case that “bears a striking resemblance to Representative Cheney’s communications with the represented party Hutchinson.”
In parallel with this accusation from the House, America First Legal, a Trump-aligned public interest legal organization, filed an ethics complaint in late October against Cheney on behalf of Passantino. (The complaint is here.) Its accusation is the same: she violated Rule 4.2(a).
The Rule
The problem is, though, that she didn’t, because the rule applies only to lawyers who are representing clients – which Cheney was not.
Both the House report and the America First Legal complaint conspicuously lop off the first seven words of the sentence they quote from Rule 4.2(a), which make it clear why the rule doesn’t apply:
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, unless the lawyer has the prior consent of the lawyer representing such other person …. (emphasis added)
Cheney was not representing a client.
The House report and the bar complaint similarly fail to mention Comment [7] to the D.C. Rule:
[7] This rule also does not preclude communication with a represented person who is seeking advice from a lawyer who is not otherwise representing a client in the matter (emphasis added).
Cheney was not “otherwise representing a client in the matter.” Whatever else you may think of her communications with Hutchinson, Cheney had no client.
Only lawyers representing another person in the matter are bound by the anti-contact rule; lawyers “not otherwise representing a client in the matter” are not. This distinction is not a mere technicality – it’s a vital protection of the client’s right to seek a second opinion.
Suppose you are unhappy with the way your lawyer is representing you. For whatever reason, you suspect they aren’t acting in your best interests. Maybe they don’t return your phone calls. Maybe they haven’t moved on your case for six months. Or maybe you think they have a conflict of interest, because somebody else is paying them. You want to do a reality check with a second lawyer – a friend, perhaps – to confirm or allay your suspicions about your lawyer. But for obvious reasons, you don’t want to ask your current lawyer’s consent to that reality check. It’s not simply that they might not consent. It’s also that you don’t want to tip your lawyer off that you don’t entirely trust them. Construing the anti-contact rule the way that the House report and the America First Legal complaint do would strip away the client’s right to get a second opinion about her lawyer without that lawyer’s permission. No wonder one has to perform cosmetic surgery on the rule to reach their conclusion.
Here, Hutchinson apparently had doubts about whether Passantino was acting in her best interests or Trump’s. If Passantino indeed told her “We just want to focus on protecting the president,” she had reason to wonder whose interests he was putting first. She said she worried, among other things, whether “if I do remember things but not every little detail, and I say I don’t recall, wouldn’t I be perjuring myself?” (Hutchinson’s testimony, page 36 lines 14-15). Passantino (according to her testimony) reassured her that “[t]he committee doesn’t know what you can and can’t recall.” These would be good reasons to want independent advice without having to ask Passantino’s consent – and Comment [7] to the anti-contact rule makes it clear that the rule does not take away her right to speak to another lawyer. The ethics rules, after all, are meant to protect clients, not tie their hands.
As for the disciplinary case that the Report says “bears a striking resemblance to Representative Cheney’s communications with the represented party Hutchinson,” it is this:
IN RE ANNE P. HOVIS. Bar No. 412531. July 13, 2011. Bar Counsel issued Hovis an informal admonition. While representing a client, Hovis inappropriately communicated about the subject of the representation with a party she knew to be represented by another lawyer in the matter. Rule 4.2(a). (emphasis added)
Far from bearing “a striking resemblance” to Cheney’s conversations with Hutchinson, the emphasized language shows a striking lack of resemblance, because Hovis was representing a client (more details here and here), while Cheney was not. Cheney was a member of the congressional select committee, not a counsel for the committee. Counsel for the committee represents it; members of the committee do not. (For several other DC bar disciplinary decisions that also, naturally, involve violation of Rule 4.2 by a lawyer while representing a client, see Claude Roxborough (Docket No. 2008~D262); Erling Hansen (Docket No. 2002-D507); Sonya Armfield (Docket No. 2016-D027); William Rogers (Docket No. 12-BD-012); Denise Daniels (Docket No. 22-BD-014); and Brenda Wagner (Docket No. 20-BD-059)).
It seems that the only pertinent legal ethics rule might be the prohibition on frivolous complaints (D.C. Rule 3.1) – and it could well apply to America First Legal’s complaint, not to Cheney:
A lawyer shall not bring … a proceeding … unless there is a basis in law and fact for doing so that is not frivolous, which includes a good-faith argument for an extension, modification, or reversal of existing law.
Perhaps America First Legal has a good-faith argument for extending the anti-contact rule to limit clients’ right to obtain advice without clearing it with the very lawyer the client mistrusts. If so, their complaint doesn’t offer it – perhaps because then they would have to admit that they didn’t quote the existing rule correctly.
Upping the Stakes: The Accusation of Witness Tampering
As I mentioned, the report recommends that Cheney be investigated by the FBI for witness tampering, in violation of 18 USC §1512. The relevant clauses of §1512 make it a crime to knowingly and corruptly persuade or attempt to persuade someone, with intent to influence their testimony in an official proceeding (§1512(b)(1)), or “corruptly … otherwise obstruct[ ], influence[ ], or impede[ ] any official proceeding, or attempt[ ] to do so.”
The question is what makes Cheney’s contacts with Hutchinson “corrupt.” Here is what the Report says (p. 117):
Evidence uncovered by the Subcommittee revealed that former Congresswoman Liz Cheney tampered with at least one witness, Cassidy Hutchinson, by secretly communicating with Hutchinson without Hutchinson’s attorney’s knowledge.
The paragraph is a bit cryptic, but it appears that the ethics violation – the violation of the anti-contact rule – is what makes Cheney’s contact with Hutchinson “corrupt.”
But there was no ethics violation.
The report also accuses Hutchinson of perjury, and accuses Cheney of suborning perjury. The accusation against Cheney would have merit only if Hutchinson did perjure herself, and did so at Cheney’s behest. These are matters of fact (or fiction) that I cannot comment on. If the accusations are true, that might provide an independent reason to suppose that Cheney contacted Hutchinson “corruptly.” But if they are false, then there is no basis for any criminal accusation against Cheney. The House Subcommittee would be doing exactly what they accused the January 6th select committee of doing: weaponizing the justice system for low political gain.
Photo credit: (L) Cassidy Hutchinson testifies during the sixth hearing by the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol in the Cannon House Office Building on June 28, 2022 in Washington, DC. (Brandon Bell/Getty Images); (R) US Representative Liz Cheney (R) during a House Select Committee hearing to Investigate the January 6th Attack on the US Capitol, in the Cannon House Office Building on Capitol Hill in Washington, DC on June 9, 2022. (Mandel Ngan / AFP via Getty Images).