Cleta with Donald Trump

Oklahoma Bar Association
Office of the General Counsel
1901 North Lincoln Blvd.
PO Box55036
Oklahoma City, OK 73152-2036

Re. Bar Complaint Against Cleta Deatherage Mitchell (“Mitchell”) – OBA No. 2255

Ladies & Gentlemen:

The above-noted counsel licensed in Oklahoma file this bar complaint consistent with
their duties under Okla. Rule of Prof. Cond. (“Rule”) 8.3(a). This complaint is also filed
consistent with our duties under our oath taken upon admission to the bar to “support,
protect and defend the Constitution of the United States and the Constitution of the State
of Oklahoma.” 5 O.S. § 2.

Cleta Deatherage Mitchell (“Mitchell”) is a DC-based attorney formerly with the large
national law firm of Foley & Lardner in their Washington, D.C. office.1 She is from
Oklahoma, and she is still licensed with the OBA (OBA No. 2255). Her practice has
included significant election law for many decades.

Mitchell was on the call when President Trump committed arguable state and federal
crimes by seeking to subvert Georgia’s election, and she was representing him at that
time.2 See call transcript attached as Exhibit 1. Democratic representatives Ted Lieu (CA)
and Kathleen Rice (NY) are both former prosecutors, and they submitted a criminal
referral to the FBI related to the call. See criminal referral attached as Exhibit 2. The
President’s conduct is alleged to violate both federal and state statutes. Experts in Georgia
election law have also opined that the President’s conduct discernably violates Georgia
law. See letter from member of Georgia election board attached as Exhibit 3 and a New
York Times article attached as Exhibit 4. Any lawyer familiar with general principles of
election law, and particularly one like Mitchell who has been involved with election law at
a high level for decades, would have known that Trump’s statements likely were criminal.

Trump threated criminal prosecution and infamy to Georgia election officials who are in
litigation with Trump over the election.3 Trump indicates that the negative outcome
(criminal liability or ignominy or, in Trump’s words, a “big risk to you”) can be avoided if
the Georgia officials can “just find” enough votes to change , the outcome of the
presidential election. See highlighted text in Exhibit 1 at p.6, for example. In this context,
Trump was clearly threatening criminal prosecution or other unspecified risks to state
officials if they refused to “just find” enough votes to change the election.
As an opening proposition, we offer the following regarding the function and duties of
members of bars in our constitutional republic:

It is absolutely necessary that each member of the bar comprehends the
great responsibility that every person who has the privilege to practice law
must strive for: to be a person of unquestionable integrity as he or she deals
with the rights of people before the bar. A practitioner of the legal profession
does not have the liberty to flirt with the idea that the end justifies the
means, or any other rationalization that would excuse less than complete
1 Foley & Lardner expressed “concern” over Mitchell’s participation in the call. See
https: // www .jsonline.com/ story/news/ investigations I daniel-bice/ 2021/ o 1/ 04 /foley-lardner-concernedattorneys-role-trumps-geo rgia-call/4127755001 / and Foley & Lardner’s web site at
https: //www.foley.com/en/insights/news/2021/ 01 /firm-response-reports-partner-cleta-mitchells.
Mitchell has since resigned. See https: //www.nytimes.com/2021/ 01 /05/us/ politics/cleta-mitchell-foleylardner-trump.html
2 Chief of Staff Mark Meadows asserted initially that Mitchell “is not the attorney of record [in the
ongoing litigation] but has been involved.” Exhibit 1 at p.1. Later, Mitchell reinforces her knowledge of the
ongoing litigation by noting that a judge had not been assigned to the case yet. Id. at p.15. During the call,
Mitchell was asking for documents that would be relevant to the litigation, so she should not be heard to
argue that she was not acting as counsel in this instance.

3 https: //www.bloomberg.com/news/ articles/2021-01-04/trump-georgia-call-preceded-by-freshsuit-
over-election-results
honesty in the practice of the profession. Certainly, our Rules of
Professional Conduct allow no such flirtation. INTEGRITY! INTEGRITY!
INTEGRITY! It must be in the hearts of the members of our bar if our
profession is going to continue to be a force in preserving the freedoms and
constitutional rights of our citizens that have been established by those who
preceded us often with the ultimate sacrifice, their lives. If an attorney
allows pride or greed or any other human weakness to destroy his or her
ability to be anything less than truthful and forthright in the practicing of
the profession, then the profession will suffer and it is questionable whether
this nation that was founded on the principle of liberty and justice for all
can survive.

In re Discipline of Mines, 523 N.W.2d 424,427 (Sup. Ct. S. Dak. 1994).
Rule 1.2(d) prohibits a lawyer from counseling the client regarding conduct the lawyer
knows is criminal or fraudulent. Accord Rule 3.3 (b) (requiring counsel representing a
client in an adjudicative proceeding and who knows that a person is or has engaged in
criminal or fraudulent conduct to “take reasonable remedial measures”). Comment 9 to
Rule 1.2 provides that –

When the client’s course of action has already begun and is continuing, the
lawyer’s responsibility is especially delicate. The lawyer is required to avoid
assisting the client, for example, by drafting or delivering documents that
the lawyer knows are fraudulent or by suggesting how the wrongdoing
might be concealed. A lawyer may not continue assisting a client in conduct
that the lawyer originally supposed was legally proper but then discovers is
criminal or fraudulent. The lawyer must, therefore, withdraw from the
representation of the client in the matter. See Rule 1.16(a). In some cases,
withdrawal alone might be insufficient. It may be necessary for the lawyer
to give notice of the fact of withdrawal and to disaffirm any opinion,
document, affirmation or the like. See Rule 4.1.

Rule 2.1 relates to counsel’s role as an advisor to a client. A lawyer must “exercise
independent professional judgment and render candid advice.”4 In so doing, the lawyer
may refer to other considerations such as “moral, economic, social and political factors
that may be relevant to the client’s situation.

Rule 3.3 requires candor toward a tribunal. While the Georgia state election officials and
counsel on the phone were adverse parties in litigation filed by Mitchell’s client, they were
also officials who were actively adjudicating election disputes. See for example, Exhibit 5,
January 6, 2021 letter from Georgia Sec. of State Raffensperger. Therefore, 3.3(b) which
covers duties in an “adjudicative proceeding” seems applicable. It provides that where a
person is engaging .. .in criminal or fraudulent conduct related to the proceeding,” the
4 Mitchell did at least once correct President Trump’s mis-statement. See Exhibit 1 at pp. 10, 11.
President Trump denied that he had asked for investigation of a specific issue in Cobb County, and Mitchell
corrected him. This demonstrates that she knew how to correct the President’s lies and was capable of
doing so.

lawyer must “take all reasonable remedial measures” to address that wrongful conduct by
the client.

Paragraph (a)(3) requires that the lawyer refuse to offer evidence that the
lawyer knows to be false, regardless of the client’s wishes. This duty is
premised on the lawyer’s obligation as an officer of the court to prevent the
trier of fact from being misled by false evidence. A lawyer does not violate
this Rule if the lawyer offers the evidence for the purpose of establishing
its falsity.

[6] If a lawyer knows that the client intends to testify falsely or wants the
lawyer to introduce false evidence, the lawyer should seek to persuade the
client that the evidence should not be offered. If the persuasion is ineffective
and the lawyer continues to represent the client, the lawyer must refuse to
offer the false evidence ….

Similarly Rule 4.1 requires a lawyer to disclose material facts to avoid assisting a client’s
crime or fraud.

Trump made untrue statements to state election officials while engaged in litigation with
those officials and were administratively challenging the election. See, for example, fact
checking in a Washington Post article attached as Exhibit 6. However, even if Trump’s
allegations were true, threatening criminal prosecution to leverage an official act,
particularly where undertaken by the most powerful person in the world to reverse a
Presidential election, is an improper act.

One discrete example of Mitchell’s failures relates to voting by dead people. President
Trump asserted that “upward of 5,000” dead people voted and asked Mitchell, “how do
you respond to that?” See Exhibit 1 at p.6. In response, Mitchell observed that “there is a
universe of people who have the same name and same birth year and died.” What Mitchell
was saying was, as an example, that a certain voter named Mike Smith with a birth year
of 1945 died before the election, but there was also a person with that same name and
birth year that also voted in the presidential election. The universe of people where that
happened was circa 5,000 people. Mitchell did not clarify for her client, the President of
the United States, or for the election officials that in a database of circa 10 million voters
the idea that there could be duplicate identical names and birth YEARS (not the day and
month) is obvious. In fact, that universe of 5,000 duplicates could all, 100% of them, be
explained by the fact that common names and birth years recur among lots of people from
among millions of voters. Mitchell never attempted to give candid and meaningful advice
to her client to indicate that in such a large database, the likelihood of the repetition of
names was high.

Another discrete example is military ballots. See Exhibit 1 at p.13. Trump asserted that
100% of military ballots came in for Biden which was contrary to the President’s assertion
that he “won the military by a lot.” The election officials asserted that there did not appear
to be criminality and no validity to Trump’s assertion, and Trump responded that it’s
“very dangerous for you to say that.” Id. at p.14. When the subject was raised, Mitchell
said “I know about it, but-,” before Trump cut her off.s She never endeavored to later
correct the record on this subject.

The highest standards of professionalism must be applied to counsel acting in this
context. As we have seen in recent days, the continued existence and functioning of our
democratic republic is at stake. As counsel for the President of the United States, Mitchell
had an ethical duty to disclose material facts to negate the President’s lies to protect the
interests of our system of governance. Lawyers have duties to their clients, to their
opponents, and to the larger system of justice. “A lawyer, as a member of the legal
profession, is a representative of clients, an officer of the legal system and a public citizen
having special responsibility for the quality of justice.” Preamble to the Okla. Rules of
Prof. Cond. In the context of a lawyer representing the President of the United States
regarding a presidential election, the duties to the “legal system” are at their apex.
Mitchell owed the highest of ethical duties to the American system of governance, but she
failed to deliver even a minimum standard of ethical conduct. Her actions allowed the
President of the United States to make unfounded representations and to threaten a state
official and party opponent with criminal charges if those officials refused to falsify
election results. Mitchell let President Trump’s falsehoods stand unchallenged. Mitchell
lent the heft of her nationally known firm to the lies and threats of the President.
Mitchell’s failure to exercise independent professional judgment and render candid
advice to the President regarding his total misunderstanding of the facts of Georgia’s
election could be argued to have contributed to the tragic events that took place on
January 6, 2021 in the United States Capitol. Mitchell thus violated her duties under the
above-noted Rules, and signatories ask for an investigation into her conduct and
imposition of an appropriate sanction for any improprieties identified.
Respectfully Submitted,

[Signatures on Subsequent Pages]

s Trump interrupts everyo .e on the call repeatedly. Mitchell will likely assert that she could not
correct the record because of the President’s interruptions. However, Mitchell has been in the corridors of
our nation’s power brokers for decades. She has been in the big leagues and knows how the game is played.
Even if Trump’s interruptions prevented her from doing her ethical duty during the call, she could have
done so later.