The Washington PostDemocracy Dies in Darkness

You don’t have a ‘right’ to a lawyer when you’re trying to steal an election

Lawyers owe a duty not only to their client but to their country.

Rudolph W. Giuliani, personal lawyer to President Trump, speaks during a news conference about the 2020 presidential election with Sidney Powell and Jenna Ellis at Republican National Committee headquarters in Washington on Nov. 19. (Jonathan Ernst/Reuters)
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By the time of the General Services Administration’s decision to allow President-elect Joe Biden’s transition to proceed, the lawyering intended to keep President Trump in office had descended into a sort of surrealism, with madcap news conferences unspooling conspiracies masterminded by dead Venezuelan dictators, and rivulets of hair color trickling down Rudolph W. Giuliani’s cheeks. This now appears to have been the terminal phase of a project that began with a deeper bench of lawyers and a pile of “legal spaghetti” — to borrow a metaphor from former RNC chairman Michael Steele — thrown at the wall.

Lawyers for the Trump campaign and its allies had hurled cases into courts in numerous states, seeking, on frivolous grounds, to stop the counting of votes, stop the certification of results, change the rules, and ultimately to simply award electoral votes to Trump on a judge’s say-so — never mind what the voters decided. As of this writing, 35 lawsuits filed to aid Trump’s cause nationwide have been lost or withdrawn; none have meaningfully stuck. Again and again, what was left after contact with the courts was a soggy mess on the floor. The haplessness of the legal work was oddly juxtaposed against the enormity of the judicial interventions they requested to steal the election.

With popular sovereignty at stake, attention, criticism and resentment turned to the attorneys advancing Trump’s cause. Within the firm Jones Day, for example, some lawyers criticized their colleagues for advancing the Trump campaign’s arguments. (Another large firm, Porter Wright Morris & Arthur, held meetings over similar concerns, according to the New York Times; lawyers from that firm later withdrew from a federal lawsuit in Pennsylvania.) When the Lincoln Project launched an ad campaign seeking to put social pressure on Jones Day, it earned admonitions from legal academics and commentators, warning that it’s a “dangerous path” for the public to push lawyers to drop a client.

Lawyers are taught, and generally believe, that the adversarial system of American law works best when all litigants — even people and causes despised by public opinion — have competent lawyers. So what should we make of the lawyers who participated in the Trump campaign’s legal efforts? Is it fair to criticize any of them (or all of them) for getting involved?

Trump’s wildest claims are going nowhere in court. Thank legal ethics.

Since the election, the Trump campaign has repeatedly alleged widespread fraud in the 2002 election. In court, his lawyers say the opposite. (Video: The Washington Post)

The idea reaches back to John Adams’s masterful and successful defense of the British soldiers accused of murder in the aftermath of the Boston Massacre. Adams’s defense, focusing on the presumption of innocence and the soldiers’ right to defend themselves, earned him the scorn of an aggrieved and outraged city and the admiration of later generations. (There was also a fair amount of self-congratulation: Adams wrote in his diary that his defense was “one of the most gallant, generous, manly and disinterested Actions of my whole Life, and one of the best Pieces of Service I ever rendered my Country.”) Over the years, that example has been expanded and refined into the maxim that everyone deserves a lawyer, and no lawyer should be criticized for taking on clients that the community scorns.

That broad formulation, however, rests on three essential, though unstated, principles. Without them, it is simply a license for lawyers to cause as much damage to our society as their clients wish.

First, from Adams to the modern day, the notion that everyone deserves a lawyer has rested on the rationale of service. We celebrate a lawyer’s competent work defending a criminal suspect (even one later proved to be guilty), or a civil suit advocating for a client’s interests (even if they are unpopular) because it demonstrates the system’s impartiality and the community’s enduring commitment to fairness. The lawyer’s assistance, if it’s effective, signals to some degree the presence of justice. That rationale won’t stretch to cover Trump’s cause: He seeks to mute the community’s voice in choosing its government. If his efforts were successful in installing authoritarianism by judicial fiat, they would reveal the courts to be the tools of a dictator. One cannot serve the community by silencing it, or serve the republic by attempting to destroy it.

Second, lawyers are not simply advocates in court; they are also gatekeepers for the court. Each lawyer has a responsibility to evaluate the merits of a case or an argument before bringing it before a judge. No one, in fact, has a right to file frivolous lawsuits, and lawyers are supposed to either talk their clients out of filing frivolous claims or withdraw from the representation. Telling a client they have no case, when that’s what the facts and law indicate, is an essential part of the job. If lawyers fail to do so, court-imposed sanctions or bar discipline can follow.

Trump’s scheme for state legislatures to overturn the election won’t work

While we don’t know the ins and outs of privileged conversations, public evidence — the unusually frequent withdrawals of lawyers; the absence of high-caliber Republican lawyers, such as Ben Ginsberg and James Baker — suggests that at least some lawyers approached by Trump Republicans are, in fact, carrying out their professional responsibilities: They are evaluating these cases with a critical legal eye, and either refusing or withdrawing when asked to make unsupportable arguments. Giuliani himself acknowledged that “we have a little difficulty getting lawyers.” (He claimed it was because they received death threats; none of the lawyers who declined or dropped out of pro-Trump election cases have publicly provided that explanation.) The lawyers who are fulfilling their gatekeeper role deserve praise, and no one should be subject to threats or harassment. However, those who are wasting courts’ time with meritless cases deserve criticism and accountability.

Third, while lawyers will defend clients for their past conduct, they’re of course not supposed to participate in ongoing criminal behavior. Lawyers are subject to criminal laws like everyone else, and moreover, the privilege that protects communications between a lawyer and their client disappears when evidence shows that the lawyer is participating in an ongoing criminal scheme. Obviously, the evaluation of any individual lawyer’s culpability in chargeable crimes is a fact-intensive process that requires analysis of both conduct and intent. But — just as obviously — the overall purpose of the Republicans’ efforts in the courts is to steal this election and illegitimately keep Donald Trump in power. Whether it prospers or is ever punished, that’s a crime, a historic one, and any lawyer who knowingly assists with it deserves all the criticism and accountability in the world.

Every time a loss or potential loss has stared him in the face, whether in the 2016 primaries, the general election, the popular vote or at the Emmy Awards, Trump has resorted to attacking the system that (actually or theoretically) produced it — always without any evidence. He’s done so in every medium and every venue available to him. But if he doesn’t have the goods, it’s not his lawyers’ job to open up the doors of the courtroom to him; they owe a duty not only to their client, but to the country. It’s their job to keep those doors shut.

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