J6 Defendant Suspended Pending Appeal: “Why Would I Have Remorse?”
The Georgia Supreme Court agreed with a Special Master’s recommendation to suspend a convicted January 6 defendant pending the outcome of his appeal
On March 20, 2023, in connection with the January 6, 2021 “breach and siege of the U.S. Capitol” following the 2020 Presidential Election, Calhoun, following a bench trial, was found guilty of the following criminal offenses: (1) 18 USC § 1512 (c) (2) and 18 USC § 2, obstruction of an official proceeding before Congress, a felony; (2) 18 USC § 1752 (a) (1), entering and remaining in a restricted building or grounds, a misdemeanor; (3) 18 USC § 1752 (a) (2), disorderly and disruptive conduct in a restricted building or grounds, a misdemeanor; (4) 40 USC § 5104 (e) (2) (D), disorderly conduct in a Capitol building, a misdemeanor; and (5) 40 USC § 5104 (e) (2) (G), parading, demonstrating, or picketing in a Capitol building, a misdemeanor. Calhoun had not been sentenced at the time the Special Master issued her report.
Additionally, we note that Calhoun testified at the show cause hearing that: (1) he was present at the United States Capitol on January 6; (2) he went into the Capitol building; (3) he understood that he could be “charged with some type of trespass,” but he engaged in the conduct because “civil rights [were] at stake,” and he believed he was exercising peacefully his First Amendment rights, and therefore he would “take a misdemeanor for the cause”; (4) he did not break anything, open any doors that were not open, or engage in violence; and (5) when asked if he had remorse for his conduct, he responded “[w]hy would I have remorse?”
The court rejected his contentions
Calhoun’s argument that he cannot be disciplined under Rules 8.4 (a) (2) or (3) because he was not “convicted” is unavailing. It is a violation of Rule 8.4 (a) (2) for a lawyer to “be convicted of a felony.” It is a violation of Rule 8.4 (a) (3) for a lawyer to “be convicted of a misdemeanor involving moral turpitude where the underlying conduct relates to the lawyer’s fitness to practice law.” Rule 8.4 (b)(1) provides that, for purposes of Rule 8.4, “conviction” shall have the meaning set forth in Rule 1.0 (e). The term “conviction” or “convicted” is defined in Rule 1.0 (e) solely in terms of pleas and “verdict[s].” The term at issue here is “verdict.
A bench trial qualifies
Read in its most natural and reasonable way, as an ordinary speaker of the English language would, “verdict” encompasses a finding of guilt in a bench trial.
No comfort because it is a misdemeanor to disrupt the Georgia House of Representatives
Calhoun’s contention in this regard is without merit. Section 16-11-34.1 concerns a different crime which Calhoun did not commit, rendering it irrelevant here. Further, with respect to imposing attorney discipline, the Rules reflect that Georgia respects the classifications other jurisdictions assign to crimes.
Nor in a comment to Rule 8.4
Comment [5] to Rule 8.4 does not nullify the imposition of discipline pursuant to the Rule, as urged by Calhoun, just because an individual charged with a violation of that Rule believed his conduct and cause to be righteous. Moreover, Calhoun’s testimony reflects that he knew he would be charged at least “with some type of trespass” for his conduct on January 6 where he determined he would “take a misdemeanor for the cause,” indicating that he knew that a valid obligation existed to refrain from entering the Capitol building to obstruct Congress’s certification of the Electoral College votes. Further, it is not entirely clear that Comment [5] actually applies to Rules 8.4 (a) (2) and (3), as Rule 8.4 encompasses a number of different types of misconduct, several of which seem like more obvious fits with the Comment. See, e.g., Rule 8.4 (a) (1) (“It shall be a violation [of the Rules] to: (1) violate or knowingly attempt to violate the [Rules], knowingly assist or induce another to do so, or do so through the acts of another.”)
Due process claim
we have held in the context of attorney discipline based upon conviction of a crime that “all felonies are crimes involving moral turpitude.” Rehberger v. State, 269 Ga. 576, 576 (502 SE2d 222) (1998). Accordingly, suspending Calhoun pending the outcome of his appeal does not violate his due process rights.
Editor’s note: I handled the early stages of the reciprocal discipline D.C. case in Rehberger, although my name does not appear on the decision because of the delay in processing the case. (Mike Frisch)