Jurisprudence

How to Ensure Accountability for the Legal Foot Soldiers of Jan. 6

Eastman wears a dumb-looking hat and coat and scowls, Giuliani wears a dumb-looking grin.
John Eastman speaks next to Rudy Giuliani at Donald Trump’s Jan. 6, 2021, rally on the Ellipse in Washington. Reuters/Jim Bourg

As the Jan. 6 committee brought its public presentation to a close this week, one of the major takeaways of the months-long hearings remained the critical role that everyday attorneys played in both promoting and helping to thwart Donald Trump’s attacks on the 2020 election. As Yale historian Timothy Snyder put it in his superb handbook on how to fight totalitarianism, On Tyranny, it’s “hard to subvert a rule-of-law state without lawyers.”

Law and its perversion are essential to bloodless coups, and those are still the most worrisome kind going forward in 2022 America.

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Snyder’s truth exposes the dark underside of the lessons Alexis de Tocqueville learned about the key role lawyers play in our country. Writing in his 1831 political chronicle, Democracy in America, Tocqueville, ever the optimist, posited that those “who have made a special study of the laws derive from occupation certain habits of order … and a kind of instinctive regard for the regular connection of ideas, which naturally render them very hostile to the … unreflecting passions of the multitude.” Snyder, recognizing that such predictions rest more on hope than on experience, offers the corrective observation that, “when political leaders set a negative example, professional commitments to just practice become more important.”

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On Wednesday, five former New York State Bar presidents and other legal luminaries demonstrated their “commitment to just practice,” filing a disciplinary complaint in New York that seeks a bar investigation of Trump lawyer Kenneth Chesebro.

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The meticulously drafted complaint, written by Lawyers Defending American Democracy, aims to have Chesebro sanctioned for professional misconduct that he appears to have committed to facilitate Trump’s attempts to overturn the 2020 election. (Both authors have signed onto the complaint.)

Terrible as it is for the legally naive to cook up a coup, it is far worse when those steeped in the law—as Chesebro is—to pervert its tools and techniques to upend our constitutional structure and purpose.

In joining the bar, lawyers take an oath to support the U.S. Constitution much like the one that Article VI of the Constitution requires of all public officials. Lawyers who betrayed that oath in ways that led to the deadly insurrection of Jan. 6 are no better than a physician who violates the Hippocratic Oath to “do no harm.” Though an extreme example, the case of Larry Nassar, who used the pretext of medicine to do irreparable injury by sexually abusing Olympic gymnasts, comes to mind. Medical authorities properly revoked Nassar’s license to practice medicine well before he pleaded guilty to criminal charges for assaulting young female athletes. The same should be true of attorneys facing criminal investigation for their roles in the Jan. 6 attack.

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Chesebro is not a household name, but he appears to have conspired with two Trump lawyers who are: Rudy Giuliani and John Eastman. In fact, Chesebro wrote the earliest memo discovered to date that laid out the twin Trump schemes to appoint fake “winning” electors in states he lost and to get then-Vice President Mike Pence to anoint them victorious on Jan. 6.

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As early as November 18, 2020, Chesebro drafted and sent a memorandum that Wisconsin’s Trump electors should “meet and cast their votes on December 14 … even if, at that juncture, the Trump-Pence ticket is behind in the vote count, and no certificate of election has been issued in [their] favor.”

Three weeks later, on December 9, Chesebro extended his proposal to five other battleground states in a second memorandum. This one described how the Trump electors should vote and send their results to Vice President Pence “without any involvement by the governor or any other state official.” At the behest of Giuliani and the Trump campaign, fake Republican electors in all six of those states (along with a seventh) actually met on December 14 and signed fraudulent certificates of their “official status” as electors.

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The day before, Chesebro had sent an email to Giuliani that described getting Pence to “firmly take the position that he, and he alone, is charged with the constitutional responsibility not just to open the votes, but to count them.”

Note the timing: It wasn’t until December 23 that Eastman sent the first of his two now-infamous memos echoing Chesebro’s theories regarding Pence’s ostensibly unilateral authority to reject a state’s certified presidential electors and replace them with uncertified ones. Significantly, before Eastman finalized his memo and sent it to the Trump campaign, he sent it to Chesebro, who edited it and pronounced it “Really awesome.”

Any minimally skilled lawyer should have known that the Electoral Count Act required certification of elector-slates by each state’s chief executive, something that none of these Trump slates had. And it is preposterous to think that the founders of our country, the patriots who rebelled against the rule of a king, would have countenanced placing the power to name a president in the hands of a single individual, the vice-president, especially  when he himself was up for re-election.

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Chesebro is far more than a minimally skilled and knowledgeable lawyer. Indeed, before developing an appellate practice that boasted hundreds of cases in federal appellate courts including the Supreme Court, he was a student and research assistant for one of us (Tribe), as part of a team that included now-Supreme Court Justice Elena Kagan, journalist Jeffrey Toobin, and now New York federal judge Paul Engelmayer. While law teachers can never guarantee that their students will turn out to serve the rule of law, all of us have a duty to seek accountability for those who use what they have learned as weapons to shred legal constraints, endanger democracy, and imperil our constitutional republic.

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Lest you think the Chesebro-Eastman efforts were unrelated to the attempt to do just that by criminally violent means on January 6, remember this: It was their untethered legal theory that armed Trump with the faux “grievance” that inflamed the 6 insurrectionists who went to the Capitol to seek to “Hang Mike Pence.” Pence, heeding former federal appeals court Judge J. Michael Luttig (rather than Luttig’s former law clerk Eastman), had followed the law, resisted Trump and refused to reject the lawfully selected Biden electors, as the Chesebro-Eastman memos urged him to do.

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Nor can Chesebro credibly claim ignorance of the real potential for violence that day. Two weeks before, on Christmas Eve 2020, he wrote an email to Eastman saying that “the odds” of the Supreme Court taking “action” on Trump’s election cases “before Jan. 6 will become more favorable if the justices start to fear that there will be ‘wild’ chaos on Jan. 6 unless they rule by then.” That message reflects Chesebro’s acute awareness of Trump’s infamous December 19, 2020, tweet inviting his followers to Washington D.C. on Jan. 6 for an event that would “be wild.”

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It also reflects Chesebro’s shameful readiness to manipulate the judiciary with the threat of political violence, an embrace of advocacy by terrorism.

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One need only recall Tocqueville’s aspirational vision of American lawyers serving to restrain unruly mobs driven more by emotion than by reason to recognize that, when a member of the bar does the very opposite and endorses the “unreflecting passions” of a would-be tyrant and his followers, he betrays the legal profession, the rule of law, and the nation. As the American Bar Association’s Standards for Imposing Sanctions states: “In addition to duties owed to clients, the lawyer also owes duties to the general public… . The community expects lawyers to exhibit the highest standards of honesty and integrity, and lawyers have a duty not to engage in conduct involving dishonesty, fraud, or interference with the administration of justice.”

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Giuliani and Eastman, the two chief “generals” orchestrating Trump’s abuse of the law to overturn the election, are already under serious disciplinary investigation for professional misconduct. Without attorney-soldiers such as Chesebro, however, those at the top would be far less dangerous to the court and the country.

Those soldiers are still out there marching. They pose a silent but clear and present danger to our constitutional republic. The New York State Bar’s grievance committee must send a powerful message of deterrence by expeditiously investigating Chesebro. It should help defend the nation—and honor our profession by expelling him from it.

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