Fox News contributor Andrew Napolitano, a former New Jersey Superior Court judge, recently claimed on television that former President Barack Obama enlisted the British intelligence services to wiretap Donald Trump when Trump was running for president.
Attorneys say this unverified assertion could cause Napolitano to face ethics charges, though the burden of proof to show he violated ethics rules would likely be steep and the potential punishments relatively minor.
Lawyers who focus on attorney ethics say anyone wanting to pursue an ethics complaint against Napolitano would have to prove the former judge lied on purpose and would have to overcome his First Amendment free speech protections.
Napolitano quit the bench in 1995 after a dispute with the New Jersey Supreme Court over his right to earn outside income, but is still licensed to practice in New Jersey and New York.
Fox News, according to media reports, removed Napolitano on March 16, after he claimed, citing unnamed sources, that the U.K.’s Government Communications Headquarters, at Obama’s request, bugged Trump’s communications.
Napolitano’s allegations were cited by the Trump administration as evidence that Obama was behind a wiretapping scheme. In a rare public statement, GCHQ flatly denied Napolitano’s claim, stating: “Recent allegations made by media commentator Judge Andrew Napolitano about GCHQ being asked to conduct ‘wiretapping’ against the then President Elect are nonsense. They are utterly ridiculous and should be ignored.”
Fox News later issued a statement saying it could not confirm Napolitano’s assertions, and took him off the air.
To explain how Napolitano could face trouble, attorney ethics mavens on both sides of the Hudson River cited Rule 8.4(c) of the New York and New Jersey Rules of Professional Conduct, both of which state that lawyers and firms “shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”******