Donald Trump’s campaign to have the 2020 presidential election decided in the courts has run into a serious snag: the courts. Depending on how you count, the campaign is about 1–24, with one lawsuit after another jettisoned from courtrooms in Michigan, Arizona, Pennsylvania, and elsewhere, by judges of all ideological and political stripes, many of whom have made plain that these claims are lacking in even minimal indicia of specificity, accuracy, or detail. As one suit after the next is narrowed or withdrawn altogether, the victim industrial complex that forms the backbone of the Trump strategy will soon have to find something new on which to blame his defeat. The next target is likely to be big prestigious law firms, which they will say were bullied out of representing the president’s interests by vicious partisan attacks. In fact, some prominent attorneys have already begun criticizing the criticism of Trump’s legal team. They fret that going after Trump’s lawyers could lead to a broader campaign against law firms that take on unpopular clients, a practice that undergirds our legal system’s ability to function. Just as someone has to defend accused murderers, someone had to file these Trump suits, they say.
But nothing can be further from the truth. The firms that lined up to try to disenfranchise tens of thousands of voters in Michigan or Pennsylvania based on claims they failed to research, refuse to check, or never believed in the first place should be scorned and sanctioned—not because they stepped forward to defend an unpopular client who had a right to representation but because they willingly and cynically volunteered to help Trump try to reach victory at any cost.
Please do not allow yourself to be conned into thinking that the efforts to bring public attention, scorn, and ridicule upon attorneys and law firms filing what appear to be almost universally frivolous lawsuits are unfair “bullying.” And please don’t accept at face values comparisons between these lawyers and others, such as Neal Katyal, who defended Guantánamo Bay detainees in their habeas petitions during the George W. Bush era. People accused of terrorism deserve a lawyer. Indeed, all criminal defendants deserve a lawyer, which is why the Constitution guarantees them one. Presidential campaigns, by contrast, do not have a right to counsel. Lawyers have independent ethical obligations and also binding federal rules that prohibit them from filing lawsuits before they have undertaken a thorough investigation of the claims. When market pressure, threats of sanctions, and public opprobrium from clients and other lawyers discourage the filing of such half-baked lawsuits, that isn’t “bullying.” That is democracy in action.
No lawyer should be subject to doxing, harassing phone calls, or threats of bodily harm. But that doesn’t mean there should be no consequences for lawyers and law firms, especially elite lawyers and law firms, that participate in fundamentally abhorrent legal enterprises. Being part of a prominent and influential law practice shouldn’t immunize anyone from allegations of misconduct. As University of Michigan law professor and Slate contributor Leah Litman has noted, elite lawyers’ unwillingness to criticize other elite lawyers who undermine democracy has played a major role in our current dysfunction. As Litman explained:
Of course, there is something painful and unpleasant about making life uncomfortable for someone familiar, especially a professional colleague. There is also something deeply uncomfortable about calling out someone you know for immoral conduct. But our constitutional order depends on people doing just that. Scholars have identified professional networks as important guardians of norms: Government officials and elites abide by norms in part because they fear approbation or repudiation by their professional and social networks if they do not. Yet those networks are now sending the signal that their members have nothing to fear at all—because they will never be held accountable for participating in cruel and destructive policies.
Trump’s postelection litigation has showed us, in gruesome detail, exactly what happens when lawyers decide their colleagues should never be held accountable. The coterie of Big Law attorneys who represent the Trump campaign isn’t actually fighting against Joe Biden. They are not participating in a Bush v. Gore–style legal dispute between two candidates with meritorious claims that may decide an election. Instead, these lawyers are fighting the voters themselves. Almost all of their current lawsuits seek to throw out legal ballots on some absurd technicality, if not an outright lie. For example, Trump’s lawyers allege that GOP election observers weren’t allowed to get close enough to watch people counting votes. Their proposed solution to this? Throw away 600,000 ballots.
Any attorney who seeks to disenfranchise hundreds of thousands of voters on this basis is a bad lawyer, and we would venture, also a bad citizen. These lawsuits seek to punish voters—to strip them of their constitutional rights, in fact—on the basis of something outside of any individual voter’s control. In many suits, Trump’s lawyers have made up fake requirements for mail-in ballots and sought to disenfranchise voters who didn’t follow them. For instance, they falsely told a court that voters had to handwrite their address on mail-in ballot envelopes. As one Pennsylvania judge wrote while rejecting such a request, “voters should not be disenfranchised by reasonably relying upon voting instructions provided by election officials which are consistent with the Election Code.” In other words, Trump’s lawyers can’t fabricate new rules for mail ballots after an election has occurred, in a brazen post hoc effort to nullify Democratic votes. Any attorney who needs to hear this lesson from a judge has no business practicing before a court.
Yes, members of the legal profession are supposed to represent their clients’ interests fearlessly and unapologetically. But they are not supposed to wage a guerrilla war on voting rights in the wake of an election. Wherever the line is between vigorous advocacy and lawless subversion of the republic, it is clear that many if not most of Trump’s lawyers have crossed it. The pursuit of justice cannot, by definition, include the pursuit of a lawless court order revoking the fundamental rights of American citizens, who were themselves exercising a fundamental right to cast a lawful ballot. We can spend all day debating the propriety of lawyers viewing themselves as mercenaries for hire, but that is not what’s happening here. Trump’s attorneys aren’t mercenaries; they’re suicide bombers trying to blow up democracy in order to hand Trump an unearned second term.
Republican attorneys who resist this fact will note that not every GOP lawsuit is quite so frivolous. An effort to throw out Pennsylvania ballots mailed by Election Day that arrive shortly thereafter, for instance, has garnered four votes on the Supreme Court. Does that make it legitimate? Well, the reason it has four votes is because the conservative justices embraced a previously unthinkable theory crushing state courts’ authority over the right to vote. And the reason it got to the court is because it was championed by John Gore, a former Trump administration lawyer who lied under oath and is now at Jones Day, the notorious corporate law firm. (In an apparent attempt to distance itself from the president, Jones Day issued a statement indicating it is not involved in other Trump election litigation.) So what really happened is that Gore and his colleagues got multiple Supreme Court justices to join Trump’s crusade to toss out mail ballots—an act that helped undermine public confidence in the outcome, not just in Pennsylvania but nationwide. That does not make this lawsuit legitimate; it just means there are Trump allies in high places who are willing to go this far.
Some elite lawyers will tell you that it’s bad to criticize other elite lawyers for simply defending underdog clients that deserve their day in court. But Donald Trump isn’t an underdog, and his efforts to toss thousands of ballots don’t deserve their day in court. Rudy Giuliani and Donald Trump can tweet about fraud all they want. It’s the army of well-heeled, well-paid, consequence-free law firms that translates their lunacy into court filings. And at the end of the day, it’s those filings, not Trump’s tweets, that pose the most direct threat to American democracy.