It's infuriating to watch the president's personal attorney, Rudy Giuliani, dissemble and mislead.  It's painful to listen to him echo Trump's assaults on the justice system.  The outrage is warranted.  Journalists should continue to point out the inconsistencies, question his strategy and condemn his efforts to undermine the criminal justice system but the courts should not step in and strip Giuliani of his law license.

To his detractors, Giuliani's sins are legion. Not only has he made assertions that seem fundamentally false, but he has also contradicted himself. He conceded, for instance, that President Trump spoke to former FBI director James Comey about the investigation into Michael Flynn and then later insisted the opposite. While the interviews are all on video, compiled perfectly for a Twitter audience to observe for itself, Giuliani seems to have no shame. He claimed that top aides met prior to the infamous Trump Tower meeting only to assert later that this meeting never happened. The list could go on.

When weaving in and out of the truth doesn't work, Giuliani likes to question the entire endeavor. Following the lead of fellow Trump spokesperson Kellyanne Conway, who quipped that she had merely presented “alternative facts,” Giuliani recently claimed, “truth isn't truth” and “facts are in the eye of the beholder.” As if the attacks on the courts, federal prosecutors, and the FBI weren't bad enough, these statements are antithetical to professional norms.  Coming from such a prominent source, the attorney for the president of the United States, they might actually impede the administration of justice.  While facts are often elusive, lawyers as a profession are committed to the existence of truth and the diligent effort to uncover it.  The rule of law itself depends on this basic faith in a discernible reality.

Even if you look the other way while he confuses the facts and undermines our justice system, what about incompetence?  Giuliani has repeatedly revealed damaging information about his client that the public did not already know. After months of Trump denying that he knew anything about hush money payments to porn star Stormy Daniels, Giuliani informed Fox News' Sean Hannity that President Trump paid his lawyer and fixer, Michael Cohen, back for these payments. Despite the fact that the President had repeatedly denied having talks with Russia about building Trump Tower in Moscow after January 2016, Giuliani suggested publicly that the Trump Tower Moscow talks went on until the end of the year. It is unclear whether Giuliani's statements are lies, incompetence, or both. Maybe he never gathered the facts or bothered to investigate.  Maybe his client lied to him and he failed to confront the president with the readily available inconsistent evidence. It's hard to know. But it is worth noting that Trump himself doesn't seem aggrieved, insisting that Giuliani just started and “he'll learn the facts.” Even if all the confusion, contradiction and accusations are a doomed legal strategy, Trump may not disapprove because they seem to be working as a public relations tool. To discipline a lawyer, the court has to find that the lawyer deliberately misstated the facts. Giuliani's public appearances are so strange that it would be hard to prove that his pronouncements are statements of fact and even if they are, that he knew at the time that what he was saying was false.

Regardless, people are calling for Giuliani's law license. Lawyers are not supposed to deceive. They are not supposed to rat out their clients on national television. They are not supposed to suggest there is no truth or to call legitimate investigations “witch hunts.”  It's particularly outrageous when the lawyer was a prominent member of the bar, a former associate attorney general and United States Attorney for the Southern District of New York.

The legal profession has played an important role in government. Its members have served as politicians, advisers and policymakers. Giuliani is acting as both a criminal defense lawyer and a spokesman or political aide. His client may never be indicted. His public statements are likely aimed at pressuring Robert Mueller's team to abandon its investigation or to urge the public to disregard the special counsel's findings. The Supreme Court has upheld criminal defense lawyers' First Amendment right to convince the public that their clients do not deserve to be prosecuted. The court is particularly wary of ethics rules that interfere with legitimate political speech.

And rightfully so.  If the court were to punish Giuliani by stripping him of his license, it would risk deterring all criminal defense attorneys from engaging in socially useful speech on behalf of their clients. It is good for criminal defense attorneys, as a general matter, to criticize prosecutors and courts. It is one of the key checks on our criminal justice system.  If these lawyers were concerned that their critiques could lead to bar discipline they might back away from this rhetoric.

Punishing Giuliani for his statements might also chill lawyers from becoming public officials or spokespeople, a role that they have historically served in large numbers. Politicians and their aides often stretch the truth.  As maddening as this is, the media, watchdog organizations and a vigilant public are there to point out the inconsistencies. Whatever you think of Giuliani, his public appearances amount to a rallying call against impeachment, which is core political speech.

Of course, Giuliani is not the run of the mill criminal defense lawyer. His words have consequences beyond the courtroom. He has helped amplify the president's assault on the justice department and prosecutors.  He has used his past service in government to claim credibility in destabilizing and undermining the rule of law. But he is playing a role at the intersection of criminal defense and public political spokesperson.  Courts should not ban this kind of speech for lawyers because doing so risks interfering with useful conduct as well. The question is not whether to fight back but how. While it may be clear that Rudy Giuliani has betrayed the profession, the proper remedy is more speech—not bar discipline.

Rebecca Roiphe is a professor at New York Law School.

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