Loyola University Chicago School of Law, JD 2024
Monday, March 6, 2023, marks two-and-one-quarter years since the notorious attack on the U.S. Capitol. Since then, the unprecedented insurrection’s aftermath has thrust Trump-aligned supporters and politicians into the political limelight. As the House of Representatives continues its comprehensive investigation, Cassidy Hutchinson, former White House aide and standout witness of the House’s Jan. 6th committee investigation, recently accused President Trump’s former White House attorney Stefan Passantino of unethical legal maneuvering. On Wednesday February 15, 2023, nearly three months after her allegations were brought, bipartisan U.S. legal advocacy group ‘The 65 Project’ filed an informal ethics complaint against Passantino.
“The less you remember, the better.”
Passantino represented Hutchinson during the early stages of the investigation. Hutchinson claims that Passantino attempted to encourage her to give misleading testimony, recalling him urging her to “focus on protecting the president,” and reminding her that “we all know you’re loyal.” She even quoted Passantino for suggesting that “the less [she] remember[ed], the better”––a strikingly unethical recommendation. To make matters worse, according to CNN, Passantino was specifically Trump’s top ethics attorney. Moreover, Elections LLC, Passantino’s law firm, was funded by Trump’s ‘Save America’ Political Action Committee (PAC). Nevertheless, the Jan. 6 committee report revealed that Passantino never told Hutchinson who would be responsible for paying for his legal services, failing to disclose the source of his reimbursement for services rendered. Passantino did, however, promise Hutchinson that she would not be responsible for paying his bills.
Skeptical of Passantino’s behavior, and rightfully so, before giving her public testimony, Hutchinson dropped Passantino and found a new lawyer. In December of 2022, committee representative Zoe Lofgren further commented that Hutchinson “was advised to say that she didn’t recall something when she did. So that’s pretty serious stuff,” revealing the committee’s disgust and bewilderment at Passantino’s alleged behavior. Shortly after the accusations went public in late December, Passantino released a statement to CNN denying that he advised Hutchinson to mislead the committee. More recently, in early January 2023, Passantino’s professional biography was removed from Michael Best & Friedrich LLP’s website, and he acknowledged in a statement that he was on a leave of absence from the firm given “the distraction” of the matter. He still remains a partner at Elections, LLC.
‘The 65 Project’–informal ethics complaint suggests Passantino violated ethics rules
The bipartisan, nonprofit advocacy group is committed to protecting democracy from abuse of the legal system by holding those attorneys accountable who engage in fraudulent or unethical behavior seeking to overturn legitimate election results. On February 15th, 2023, the 65 Project argued in its complaint that Passantino committed a series of ethics violations during his time as Hutchinson’s lawyer. The 65 Project thereby announced that it asked the Georgia State Bar to conduct an investigation into Passantino’s possible violations of Georgia’s Rules of Professional Conduct. Last year, the state bar dismissed complaints against two other Georgia attorneys brought by The 65 Project in which the agency alleged the attorneys orchestrated a fake electors scheme. Nevertheless, most recently, The 65 Project insists that Passantino’s actions amount to violations of Georgia’s Rules of Professional Conduct for lawyers. The group alleges three violations: obstruction of an investigation, breach of confidentiality guidelines, and compromising professional responsibility through accepting funding.
Passantino’s alleged obstruction of an investigation violated rule 8.4, according to the 65 Project. Rule 8.4 states, “It is professional misconduct for a lawyer to…engage in conduct that seriously interferes with the administration of justice.” The 65 Project argues that Passantino violated this rule when he refused to prepare Hutchinson for her testimony before the committee. Passantino allegedly even recommended that Hutchinson not “read anything to try to jog” her memory ahead of sitting for an interview with the committee.
The 65 Project also alleged that Passantino violated rules 1.7 and 1.8 by having an interest in a third party over his own client and by failing to disclose the source of his funding. Rule 1.7 bars lawyers from representing clients if their “professional judgment on behalf of the client will be or reasonably may be adversely affected by the lawyer’s responsibilities to or interests in a third party.” Related to that, rule 1.8 says that lawyers can only accept funding from someone other than their client so long as there is express consent from the client and no potential interference with the lawyer’s professional judgment or client relationship. As mentioned above, Trump’s ‘Save America’ PAC paid for Passantino’s services to Hutchinson. Hutchinson suspected this, but when she asked Passantino for clarification, she was continuously stonewalled. The 65 Project argues that Passantino “purposefully represented [Hutchinson] with the intention of protecting the reputation of third parties at the expense of [Hutchinson].” Ross Garber, a lawyer for Passantino, said the 65 Project members had no direct knowledge about Passantino’s representation of Hutchinson and called the group’s letter “frivolous and ill-informed.” The Georgia State Bar is reviewing the matter.
Compliance challenges and the need for more Project 65’s
Law and politics are deeply intertwined, and the rule of law is under duress. Ultimately, law firms and PACs are businesses, and both the Save America PAC paired with Passantino’s conduct exemplifies and exposes widespread corporate and legal non-compliance in a disturbing light. The problem at hand is twofold.
First, Trump’s chief fundraising vehicle, Save America PAC, has been under legal scrutiny for years. The Justice Department has repeatedly issued a round of jury subpoenas that sought records of communications with Trump-allied lawyers who supported efforts to overturn the 2020 election results and plotted to align fake electors in battleground states. Second, attorneys like Passantino are taking advantage of funding and these political tactics, breaching their professional responsibilities owed to their clients. To stop this non-compliance in its tracks, a committee, such as The 65 Project, must remain steadfast in its fight against Passantino’s corruption. In order to maintain integrity and ensure compliance in both our legal and political systems, more professional associations must continue taking action to hold both law firms and PACs accountable. The corruption exhibited by both Passantino and Trump’s PAC threatens democracy itself, and similar future misconduct ought to be curtailed by any means necessary.