Jurisprudence

The Real Threat of Trump’s Latest Doomed Plea to the Supreme Court

There are 18 Republican state attorneys general endorsing this madness.

Trump, seen from the back, walking past the presidential seal hanging in front of a curtain
President Donald Trump in Washington on Tuesday. Tasos Katopodis/Getty Images

On Wednesday afternoon, 17 states endorsed Texas Attorney General Ken Paxton’s doomed lawsuit asking the Supreme Court to nullify millions of votes and hand Donald Trump a second term. Trump himself then intervened in a brief riddled with debunked conspiracy theories and at least one outright factual error. The odds that the Supreme Court will take this case, let alone rule for the plaintiffs, remain at right around zero. But the dispute remains noteworthy as a preview of the conservative legal movement’s direction after Trump leaves office. The president will leave the White House on Jan. 20. The conservative attorneys who have become radicalized under his influence, however, will remain in power across the country.

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This case, Texas v. Pennsylvania, is so ridiculous that it is not worth exploring its legal claims in any depth. Paxton’s suit asks the Supreme Court to throw out every vote in four states won by Joe Biden—Georgia, Michigan, Pennsylvania, and Wisconsin—then direct each state’s legislature to declare Trump the winner. This act would constitute the single biggest incident of voter nullification in American history. Paxton alleges that all four states illegally expanded mail voting, permitted egregious fraud, then concealed evidence that Democrats stole the election. There is no basis in truth for his factual claims and no basis in law for his legal theories. Indeed, it seems likely that Paxton, who is reportedly under FBI investigation for corruption, is more interested in obtaining a preemptive pardon from Trump than presenting a coherent legal argument.

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What’s not as clear is why 17 state attorneys general, all Republican, decided to join Paxton’s humiliating crusade. Their brief, spearheaded by Missouri Attorney General Eric Schmitt, parrots Paxton’s false assertions about widespread fraud, urging SCOTUS to take up the case. They accuse the four defendant states of repeatedly violating the Constitution by allowing more people to vote by mail during the pandemic. And they claim that, by allowing voters to cure faulty absentee ballots, the states violated the equal protection clause. To remedy this alleged problem, they suggest, the Supreme Court must wipe out every vote cast in all four states, clearing the way for each state legislature to assign their electors to Trump.

Why did a third of the nation’s attorneys general decide to use the power of their offices to aid an overt assault on democracy? Obviously, they are Republican politicians who would like to see Trump remain in the White House. But I suspect few, if any, have fallen prey to the delusion that Trump actually won the election. These lawyers run large agencies that deal with complex legal disputes every day; the job requires a level of competency that could not be met by someone suffering a complete break with reality. We should assume that these attorneys general are rational actors, politicians looking out for their own best interest. Like most Republican politicians, these attorneys general understand that they need the support of Trump voters to keep their jobs. Their brief is thus best seen as performative loyalty: GOP voters in these 17 states can rest assured that their attorneys general fought for Trump till the bitter end. Indeed, rejecting the reality of the presidential election results, which as of Wednesday have been certified by all 50 states and the District of Columbia, has fast become a litmus test for members of the Republican Party.

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But attorneys general are not normal politicians. They are also members of the legal profession with an obligation to meet basic ethical standards. Lawyers, including attorneys general, may not file suits that they know to be frivolous; they may not lie to courts, and must exercise independent professional judgment, no matter their client. These rules are especially pertinent when an attorney represents the entire citizenry of a state. And yet every lawyer who signed Wednesday’s motion flouted these principles, signing their names to a brief that relies upon objectively false conspiracy theories to try to blow up an election.

How did we get here? To start, at least 13 of the 17 attorneys general on the motion are affiliated with the Federalist Society, a powerful and lavishly funded network of conservative attorneys. The Federalist Society has achieved unprecedented success under Trump: He has nominated its members to serve as judges, political appointees, and, of course, his own personal lawyers. A huge portion of election-related litigation over the last few months has been driven by Federalist Society members eager to toss out as many Democratic ballots as possible. All the while, the conservative legal movement has insisted that it is dangerous and unacceptable for anyone to criticize any attorney who chooses to support Trump in court.

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This standard—an informal gag rule designed to shield GOP lawyers from criticism—has allowed sleazy, corrupt, anti-democratic lawyering to flourish on the right. Major law firms like Jones Day have aided Trump’s efforts to void thousands of Democratic ballots, only to abandon the president’s postelection efforts to overturn the election as a bridge too far. There appear to be few conservative lawyers who are willing to police their own movement, to advise their colleagues to draw the line at subversion of democracy. Under their theory, there is no ethical or moral distinction between a public defender representing an indigent defendant and a partisan attorney advocating on behalf of a corrupt president.

Wednesday’s motion is a logical extension of this theory. The attorneys general who signed it are in the mainstream of the conservative legal movement. They are not lunatics. They have simply been given permission by their colleagues to do anything to help Trump retain the presidency. Asking the nation’s highest court to steal an election for Trump is not off limits because nothing is off limits. These attorneys general seem to think their states’ citizenry demands intervention on Trump’s behalf—mass voter suppression included. We can safely assume that these lawyers will continue to fight for the law of Trumpism long after Jan. 20. Remarkably, most of the states siding with Trump are members of the former Confederacy. We may soon experience a kind of cold Civil War, in which the Republican leaders of former Confederate states attempt to sabotage democracy in order to install a new GOP president in 2024. (On Wednesday, “Civil War” trended on Twitter and Rush Limbaugh advocated for secession on his radio program.)

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There is no better example of the conservative legal movement’s failure to police its own members than Trump’s motion to intervene in this case. It bears the signature of just one lawyer, John Eastman, senior fellow at the Claremont Institute and the founding director of its Center for Constitutional Jurisprudence. (The brief appears to be ghostwritten by the lawyer whom Paxton hired to write his own brief.)

Eastman is a white supremacist who notoriously promoted the lie that Kamala Harris may not be a U.S. citizen. That falsehood grew out of Eastman’s decadeslong quest to strip millions of nonwhite Americans of their citizenship because they are the children of immigrants, subjecting them to deportation. The Federalist Society continued to invite Eastman to “debates” long after he revealed himself to be a racist crank peddling falsehoods. Now he is backing Trump’s last-ditch attempt to steal the election based on lies and conspiracy theories. His brief on Wednesday parroted the president’s outright falsehood shared on Twitter earlier in the day that no presidential candidate had lost the presidency after winning both Ohio and Florida, as he had done. (John Kennedy won the presidency with neither state in 1960.) Eastman will, no doubt, still get invited to Federalist Society events. After all, according to his ideological allies, a mere word of criticism aimed at his efforts would constitute a threat to the entire legal profession.

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We should not take the radicalization of conservative lawyers lightly. The attorneys general backing Trump will not disappear from the political scene alongside Trump. Nor will their aides, many of whom are fellow Federalist Society members with aspirations for higher office. (A large number of Trump’s political and judicial nominees spent time in a GOP attorney general’s office.) These lawyers represent the next generation of the Republican Party, and they have no qualms about disenfranchising 80 million Americans to seize the presidency. Trump will leave office in January. But the attorneys general who are aiding his failed coup are just getting started.

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