Lawyers Should Not Assist Trump in
a Potential Power Grab
Oct. 13, 2024
By Kate Shaw
Contributing Opinion Writer
As
the presidential campaign begins its final sprint, Donald Trump has made
crystal clear how he will respond if he loses. He will refuse to accept the
results; he will make baseless claims of voter fraud; and he will turn, with
even more ferocity than he did in 2020, to the courts to save him.
Mr.
Trump has made clear that he views any election he loses — no matter how close
or fair — as by definition illegitimate. The question then is whether there will be lawyers willing
to cloak this insistence in the language of legal reasoning and therefore to
assist him in litigating his way back to the White House.
Republican
lawyers have already unleashed lawsuits ahead of Election
Day. These legal partisans have pursued their efforts across the country but
have concentrated on swing states and key counties. The moves are clearly
intended to lay the groundwork for Mr. Trump’s post-election efforts in states where
the margins of victory are close.
Such post-election efforts will be credible only if
credible attorneys sign on to mount them. So it is critical that lawyers of
conscience refuse to assist in those endeavors. As Mr. Trump’s rhetoric grows
ever more vengeful and openly authoritarian, a great deal turns on the
willingness of members of the legal profession to make common cause with him.
At
least since 2000, every close presidential election has involved recounts or
litigation. Both sides lawyer up, and a high-stakes game of inches ensues.
Although
the lawyers engaged in those efforts are playing hardball, their work is
predicated on a shared set of premises: In elections, the candidate who gets
the most votes prevails (whether that means winning state or federal office or
winning a state’s electoral votes). And in a close election, skilled lawyers
will seek to develop legal arguments that determine which votes count, and
therefore who emerges as the winner.
But
Mr. Trump has already effectively told us that his post-election efforts this
year will be something else entirely. He has insisted that any loss he suffers will be attributable to fraud,
despite national polls that have him either neck and neck with Kamala Harris or
down by a few points. He has already told us, in other words, that his
post-election activities will be a power play in search of a legal theory.
Lawyers
today have come of age in a legal profession that takes seriously its ethical
obligations. That wasn’t always the case. In fact, it was the Nixon White House
counsel John Dean’s question to the Senate Watergate Committee — “How in God’s
name could so many lawyers get involved in something like this?” — that set in
motion a reckoning for the legal profession. Watergate led to an extensive
American Bar Association study and a set of ethics guidelines that to this day
provide the foundation of the ethics instruction for law students and lawyers.
After the 2020 election, major law firms stayed
conspicuously on the sidelines as Mr. Trump mounted his scorched-earth
litigation campaign to subvert the election’s results. This was noteworthy: For
years leading up to that election, prominent lawyers from firms like Jones Day
and Consovoy McCarthy represented Mr. Trump in cases from battles over access to his financial records to
litigation surrounding the emoluments clause. In 2020, those firms even
facilitated pre-election efforts to limit absentee voting.
Yet
for the most part, seasoned and well-credentialed attorneys were nowhere to be
found in Mr. Trump’s post-election litigation. Instead he was represented by
lone-wolf lawyers — many of whom have
now been either criminally charged or disbarred. Indeed, the most recent filing
by the special counsel Jack Smith suggests that
Mr. Trump was forced to enlist these attorneys after the campaign staff members
initially involved with Mr. Trump’s post-election challenges insisted on
“telling the defendant the truth that he did not want to hear — that he had
lost.” By contrast, the filing alleges, the outside attorneys Mr. Trump
enlisted were, as the filing described one such individual, “willing to falsely
claim victory and spread knowingly false claims of election fraud.”
Most
of those efforts failed spectacularly. But not all. Mr. Trump’s Wisconsin
lawsuit, which sought to throw out significant numbers of ballots from
Democratic strongholds, came within a single vote of succeeding on the state’s
Supreme Court.
Still,
in 2020, Joe Biden’s victory was decisive enough that turning Mr. Trump’s loss
into a win would have required overturning the results in at least three of the
closely decided states. So the Trump team’s efforts were not only lawless, but
also essentially hopeless.
The
election this year could be closer. And Mr. Trump will most likely be, if
anything, more determined to win at all costs — driven not only by desire for
power but also by fear of what might come of the pending legal cases against
him.
In his criminal cases, Mr. Trump has a right to competent
and effective counsel, and it is important that he be well represented. But the
right to counsel guaranteed by our Constitution does not extend to efforts to
subvert that very document.
Lawyers
cannot, consistent with their ethical obligations, participate in devising
litigation that is retrofitted to support the position Mr. Trump seems to hold
— that the only “real” Americans are those who cast their ballots for him and
that those who vote against him are by definition engaging in fraud.
Attorneys
at prominent law firms should already know that they cannot defensibly assist
in Mr. Trump’s specious efforts. If they waver, their corporate clients should
make clear they do not want their attorneys associating with a candidate who
has already told us he will not respect the will of the voters if they do not
choose him. General counsels at the companies whose businesses employ these
firms, who are also members of the bar and members of the electorate, must also
make their objections known. Where appropriate, state bars should be aggressive
in sanctioning egregious professional conduct.
There
is growing evidence that prominent conservative lawyers understand the dangers
Mr. Trump poses. The former George W. Bush attorney general Alberto Gonzales
recently announced his support for Ms. Harris. And a group of conservative
lawyers, including the former Trump attorney Ty Cobb, sent Gov. Brian Kemp of
Georgia a letter last
month urging him to investigate and potentially remove highly partisan members
of the state’s election board.
Other
prominent conservative attorneys should add their voices to this chorus,
helping to convey the message that it is inconsistent with the basic
obligations of the legal profession to aid Mr. Trump in a potential power grab.
There
are limits to what law can do to deliver the country from Trumpism. But in a
close election, it is critical that members of the bar refuse to deploy the law
in service of Mr. Trump’s efforts to win at all costs.
