A Stain Not Easily Removed
Republican lawyers are back in the news and are bringing disgrace to the party and profession. Even before the indictments in Georgia, it had been widely reported that at least five, and perhaps all six, of former President Donald Trump’s co-conspirators were Republican lawyers. Now in Georgia, we add several lawyers, some familiar and some new, to the list of Trump’s co-defendants.
The one common theme in each of Trump’s indictments is the central role that lawyers play in facilitating, excusing or covering up his malfeasance. They are his enablers, co-conspirators and now co-defendants.
Something has gone tragically wrong in the GOP and in the legal profession. At this pace, CPAC will need to hold its next convention in a prison yard. The Federalist Society may soon have to create a category of membership for the disbarred and criminally convicted.
You might think that the Republican establishment would recoil from these disgraced lawyers, but you would be wrong. As the Washington Post recently reported, “After trying to use the Justice Department to delegitimize the 2020 vote,” one of the co-conspirators in the federal case and co-defendant in Georgia, Jeffrey Clark, “has become a rising legal star for Republicans.”
Worse still, the Colorado Republican Party recently hired another indicted co-conspirator, John Eastman — whose California State Bar profile has since been updated with a warning that he’s been charged with a felony — to represent them in a lawsuit aimed at allowing the party to conduct closed primary elections. In the past, the GOP had retained several national law firms to represent it in campaign finance and redistricting litigation. For this case, they decided on a disgraced lawyer who is not only indicted, but in the middle of being disbarred.
History is replete with examples of corrupt politicians and there have always been unscrupulous lawyers. However, until recently, it was unimaginable that a political party would not only defend multiple criminal conspiracies, but also embrace the lawyers at their center.
The legal profession needs to make significant structural changes to prevent another attack on democracy in the future.
This is not to excuse the conduct of the nonlawyers. First and foremost, Trump is a full-time criminal defendant for a reason. He has found a unique niche in American politics as a candidate running on a platform of having been indicted in four different states.
Trump strikes an odd profile of a racketeer. He is not like the dapper and smooth John Gotti, who ran New York’s most infamous crime family for decades. Trump is more like Vinny “the Chin” Gigante, who tried to beat his own racketeering case by wandering the streets of New York City in his bathrobe and slippers every day; all the while mumbling incoherently to himself.
The difference here is that the crimes alleged in the various indictments were only made possible by the active participation of lawyers. Without lawyers, the 65 meritless lawsuits wouldn’t have been filed after the election. Without lawyers, there would be no fake electors scheme. Without lawyers, there wouldn’t be a framework to urge then-Vice President Mike Pence to violate the U.S. Constitution. Without lawyers, there would be no abuse of the U.S. Department of Justice.
These indictments reflect not only the actions of individual lawyers, but the collective action of the Republican legal community. Long after these individual charges are adjudicated, the stain on the GOP and the legal profession will remain. There is little chance that the GOP can be saved from the condemnation of history. Indeed, it is currently leaning into shame. Nominating Trump in 2024 will only darken the stain.
There are steps, however, that can and should be taken. The legal profession can redeem itself if it has the courage to act decisively.
First, it needs to swiftly move to disbar all the lawyers involved in the attack on democracy following the 2020 election. The fact that it is 2023 and many of these proceedings are still ongoing reflects a lack of urgency the circumstances require.
But individual disciplinary actions against individual lawyers only go so far. The legal profession needs to make significant structural changes to prevent another attack on democracy in the future. Shortly after the Jan. 6 insurrection, I offered a few suggestions for the legal profession.
State bar associations need to review how existing rules failed to stop so many lawyers from saying and doing so many things to undermine our democracy. Rules need to make clear that undermining democracy, inside or outside of the courtroom, is prohibited. The federal rules of procedure must be revised to provide for swift, mandatory sanctions against lawyers who bring frivolous election-related claims.
In the absence of reforms, we continue to see the attacks on democracy. After the 2022 midterm elections, Republican lawyers in Arizona and elsewhere spread false information about voting and free and fair elections. Meanwhile, Trump’s various lawyers traffic in their own attacks on the legal system itself.
Court sanctions and individual attorney sanctions are time consuming and ill-suited to the challenge we face. The legal profession is not going to meet its professional obligations without adopting real reforms that require officers of the court to also be stewards of democracy.