When the Justice Department announces it will crack down on “harassment, intimidation and threats of violence against school board members, teachers and workers in our nation’s public schools,” Sen. Josh Hawley (R-Mo.) — who fist-pumped the Jan. 6 mob and voted to overturn the election — jumps to the defense of the perpetrators, falsely claiming that thugs who threaten public officials are simply parents worried about critical race theory.
This all tells us that the GOP has forsworn any interest in defending either law or order. But we now see signs that the legal profession, which once did its part to enable and defend the Trump administration, is at last pushing back.
In California, a group of superstar lawyers, ex-judges and former governors have sent a letter and complaint to the State Bar concerning lawyer John Eastman’s two memos setting forth a plan to overthrow the election, as well as his participation in the rally that ignited the attack on the Capitol. “We write to request that the State Bar investigate serious evidence of professional misconduct by Professor John C. Eastman in connection with his representation of former president Donald Trump in efforts to discredit and overturn the results of the 2020 presidential election,” they explain.
They revisit in detail Eastman’s two memos:
Mr. Eastman’s memoranda sought to justify a brazen power play by Mr. Trump that aimed to set aside the results of an election that had been repeatedly and authoritatively determined to be free and lawful, and to potentially install the loser of that election as a winner, based on nothing more than a false narrative that Mr. Trump had originally authored. Not only is there no support in the text of the Constitution for that extraordinary result, but it is also contrary to an unbroken chain of past practice and legislation since the enactment of the 12th Amendment and wholly unsupported by the scholarship Mr. Eastman tried to invoke to bolster his analysis, that of Professor Laurence H. Tribe.
The authors conclude:
Mr. Eastman undertook to provide the legal rationale for this extraordinary attempt to overturn the election in two memoranda, which were intended to influence Mr. Pence. The core claim of those memoranda was that it was a “fact” that the Constitution gave Mr. Pence complete and unfettered authority to prevent the counting of lawful ballots from seven select states or to postpone the count altogether. That claim was based on nothing more than the notion that the legitimacy of the election continued to be “disputed” in some unexplained fashion. That conclusion was thoroughly wrong—and Mr. Eastman knew it or was willfully blind.
The letter says Eastman also “continued this pattern of misconduct by giving the crowd at the ‘Stop the Steal’ rally on the National Mall another version of his misleading advice and stating that, by rejecting it, Mr. Pence had proved himself undeserving of his office. Mr. Eastman also made a number of false factual statements at the rally, including that there was a ‘secret folder’ of ballots on voting machines that was used to turn the election against Mr. Trump.”
The letter writers ask the State Bar to initiate an investigation into professional misconduct on Eastman’s part. “Our state bars set standards of professional responsibility for their members to ensure that in their zealous defense of their clients, lawyers also serve as the guardians of the rule of law," they argue.
Frankly, the same sort of complaints should be made to every state bar against lawyers who filed frivolous lawsuits disputing the 2020 election. Some lawyers went beyond “just” filing meritless suits to upend the vote; in Georgia, lawyer Cleta Mitchell participated in a call in which Trump tried strong-arming Secretary of State Brad Raffensperger to “find” enough votes to flip Georgia’s electoral votes to him.
Among the Republican members of Congress who signed on to a joke of a Supreme Court brief seeking to throw out the votes of millions of Americans were scores of lawyers. In participating in a spurious claim to upend our democracy, they not only violated their oaths of office and betrayed their country, but they violated their professional responsibilities, too.
The group of civic-minded lawyers, former judges and former officials behind this eloquent letter should not stop with Eastman. As they explain, “Lawyers, particularly those who represent elected and appointed officials, have a solemn duty to the public to advise their clients within the four corners of the law, and to ensure that they do not allow themselves to become the tools by which those officials seek to undermine democratic governance.”
If lawyers suffer no consequences when they egregiously violate that duty, they and like-minded practitioners will continue to threaten our democracy and undermine our elections. The legal profession needs to ensure that the next time a president tries to steal an election or incite an insurrection, it speaks with one voice: in opposition.