I concede that not everyone really loves lawyers. I have practiced law for more than 40 years and I have seen my share of awful people who have law licenses. But I also know excellent lawyers, brilliant people with high morals and impeccable ethics. They vastly outnumber the scoundrels.
Yet I am worn down by the heaviness I feel when I see lawyers lie to the public and to the courts in support of the broad attack on democracy that came out of the 2020 election—something I fear is returning with a vengeance in this presidential election year.
Why do state bar associations and disciplinary committees allow these attorneys to keep their law licenses—to work with the imprimatur of a profession that supposedly operates under a strict code of ethical conduct? After all, every state, except a rare few, requires new lawyers to take an oath to support the Constitution of the United States when they are sworn-in. Vermont’s oath is among the most fulsome, reading, in part: “You do solemnly swear (or affirm) that you will be true and faithful to the United States of America and that you will not, directly or indirectly, do any act or thing injurious to the Constitution or Government thereof.”
Doesn’t this oath, in itself, create a duty even higher than simple ethics rules about lying, cheating, and stealing?
I have my own perspective on these questions, one that may offer a unique historical context. In 2010, I began working with John Dean, President Richard Nixon’s former White House counsel, to create an ethics program for lawyers across the nation who are required to periodically take ethics training in order to maintain their licenses. We have given more than 300 workshops, probably to more than 85,000 lawyers, judges, and professors.
We use Dean’s experience as counsel to the president to teach about broader issues that the profession faced following Nixon’s 1974 resignation as a result of the Watergate scandal. Dean had been a young lawyer who admitted to slipping across the line into obstruction of justice—a grave misstep. But he then took great personal risks to try and help thwart the criminal conspiracy that enveloped the administration. He had warned Nixon in March 1973 that there was a “cancer” growing on the presidency and that his days would be numbered if the conspiracy didn’t end. When Dean could not change things from the inside, he went to prosecutors, and ultimately Congress, to testify against his commander in chief.
Fortunately for Dean, Nixon had secret tapes (even Dean did not know the existence of the taping system), and those recordings corroborated Dean’s testimony. The Supreme Court (which included four Nixon appointees) held that the president needed to turn over the tapes in late July 1974, and Nixon resigned two weeks later. Notably, Nixon appointee Justice William Rehnquist, having been at the Department of Justice during the Nixon administration, though uninvolved, appropriately recused himself.
It is important to note that Dean’s 1973 testimony before the Senate Watergate Committee had set off alarm bells at the American Bar Association. In response to questioning from Senator Herman Talmadge, Dean listed many of the attorneys who had crossed the line legally, wondering, “How in God’s name could so many lawyers get involved in something like this?” Among their number: Nixon himself, his Attorney General John Mitchell, Dean, top domestic adviser John Ehrlichman, aide Chuck Colson, and even the mastermind of the Watergate break-in, G. Gordon Liddy.
“How in God’s name could so many lawyers get involved in something like this?”
The ABA moved to beef up the rules of professional conduct by creating a commission headed by Nebraska lawyer and legal ethics visionary Robert Kutak. Dean assisted the group in creating a mechanism that allowed lawyers, in certain circumstances, to counsel clients, including organizations, to refrain from engaging in fraud or crime, and then, if the lawyer was unsuccessful in stopping the bad conduct, they could “report out” ongoing crime or fraud to authorities. The new Model Rules would not be fully adopted by the ABA until the early 2000s—after the Enron and WorldCom financial scandals created pressure on states to institute stronger protections favoring public disclosure of wrongdoing, despite the long-established protections of confidentiality and the attorney-client privilege.
The preamble to the regulations emphasizes a lawyer’s duty as a public citizen, stating that “a lawyer should further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.”
Flash-forward to 2020. These rules and norms, in fact, did little to deter scores of lawyers from engaging in a campaign to assault democracy through the media and in the courts, falsely claiming that the presidential election had been stolen from Donald J. Trump.
Election law expert and Democratic strategist Marc Elias has commented with regularity about the central role that attorneys played in enabling Trump in conduct that has become the subject of multiple criminal indictments related to bogus election-fraud claims.
“The crimes alleged in the various indictments were only made possible by the active participation of lawyers,” Elias wrote in Democracy Docket. “Without lawyers, the 65 meritless lawsuits wouldn’t have been filed after the election. Without lawyers, there would be no fake electors scheme. Without lawyers, there wouldn’t be a framework to urge then vice president Mike Pence to violate the US Constitution. Without lawyers, there would be no abuse of the US Department of Justice.”
Like John Dean’s recital during the Watergate hearings, the current list of lawyers who have found ignominy in sanctions hearings, state disciplinary actions, and criminal indictments is long.
Alan Neff and Caroline Fredrickson, analysts for the influential NYU-based online forum on national security policy, Just Security, compiled their own roll of the accused in December: “We have identified 22 lawyers who formally appear in cases on behalf of Trump or who apparently have worked independently on behalf of his false assertion that he won the 2020 election. The lawyers are Robert Cheeley, Kenneth Chesebro, Jeffrey Clark, Matthew DePerno, John Eastman, Jenna Ellis, Michael Farina, Rudy Giuliani, Julia Haller, Scott Hagerstrom, Brandon Johnson, Stefanie Junttila, Christopher M. Kise, Howard Kleinhendler, Michael Madaio, Armen Morian, Emily Newman, Sidney Powell, Clifford S. Robert, Gregory J. Rohl, Ray Smith, and L. Lin Wood.” To repeat: That’s 22, not counting others outside of Trump’s orbit who are raising separate challenges.
“We have identified 22 lawyers who formally appeared on behalf of Trump or apparently have worked independently on behalf of his false assertion that he won the 2020 election.”
Two of the most high-profile among them are facing consequences only now.
Jeffrey Clark, a former DOJ official who did not participate in any lawsuits but who did work behind the scenes with Trump to consider sending a letter to Georgia officials in what would have been an attempt to interfere in that state’s election, is facing disbarment in Washington, DC. Proceedings began last week.
At a hearing, Clark hid behind what he referred to as a “veritable phalanx of privileges,” including the Fifth Amendment right against self-incrimination—ironic since he acted in a way that would have helped undermine the very Constitution he now invokes.
Also last week, John Eastman, a former professor and dean of the Chapman University School of Law, was finally recommended for disbarment by a California judge who issued her 128-page opinion following 34 days of in-person trial spread over a year. Eastman stands accused of counseling Trump on a multifaceted strategy that consisted of filing frivolous lawsuits seeking to overturn the election; falsely telling vice president Pence, legislators in key states, and the public that there was enough fraud and illegality to change the results of the election; and advancing the scheme to submit to Congress illegitimate slates of Trump electors from seven states won by Joe Biden.
Obviously, the rules that arose out of Watergate need some serious revision. Almost as importantly, administrators at state supreme courts and bar association disciplinary counsels need to act with a sense of urgency when lawyers are actively undermining confidence in the rule of law and democracy itself. New standards need to be adopted that specifically target—as imminent threats to the legal system—those who falsely assert election fraud. Moreover, their licenses to practice law must be pulled or suspended, without delay.
As with all Trump-related cases, delay is the mortal enemy of effective self-regulation by the bar. Two examples illustrate the depth of the problem.
Sidney Powell still retains her Texas license to practice law, shocking as that may be to many. Powell, along with a group of other attorneys, was the subject of a stinging sanctions opinion authored by federal district court judge Linda Parker in August 2021. The sanctions came out of a case filed in Michigan by Powell and others, alleging massive fraud and seeking to throw Michigan’s electors to Donald Trump, despite the fact that Joe Biden overwhelmingly won the state by more than 150,000 votes.
Judge Parker was direct about the seriousness of the ethical violations by counsel. “This lawsuit represents a historic and profound abuse of the judicial process,” she wrote. “It is one thing to take on the charge of vindicating rights associated with an allegedly fraudulent election. It is another to take on the charge of deceiving a federal court and the American people into believing that rights were infringed, without regard to whether any laws or rights were in fact violated. This is what happened here.” As part of the sanctions order, Judge Parker referred the lawyers to their respective state disciplinary authorities.
In June 2023, the Sixth Circuit Court of Appeals upheld the bulk of the sanctions imposed by Judge Parker’s decision, and then the United States Supreme Court let the decision stand by refusing to take the case this past February.
Despite this established record of ethical wrongdoing, in February 2023, a Texas trial court in a state disciplinary action against Powell dismissed the claims on summary judgment without consideration of the underlying merits. Rather, the court ruled that the Texas disciplinary authority had mislabeled and misreferenced evidence. That judgment is currently on appeal.
In Georgia, meanwhile, Powell was charged in the sprawling racketeering case brought last summer by Fani Willis, the Fulton County, Georgia, district attorney. Powell reached a plea deal with prosecutors in October 2023 and agreed to plead guilty to six misdemeanor counts, admitting to attempts to unlawfully access secure elections machines in Coffee County, Georgia. (Top lawyers in Texas renewed efforts to bring disciplinary proceedings against Powell after she pleaded guilty in Georgia.)
The bottom line is that after three years of proceedings, Powell, based in Dallas, retains her license to practice law. A visit to the State Bar of Texas website reveals nothing about Powell’s disciplinary history or her guilty plea in Georgia. It does helpfully note that she provides foreign language assistance in French.
At the other end of the spectrum, the bar in New York moved quickly with regard to Rudy Giuliani—but it was too late to undo the damage done. Authorities found that Giuliani made false statements following the 2020 election at “press conferences, state legislative hearings, radio broadcasts (as both a guest and host), podcasts, television appearances, and one court appearance.” Giuliani’s massive press barrage, coupled with 65 lawsuits, arguably led millions of Americans to believe the presidential election was stolen—a notion that continues to be embedded in the minds of many in the electorate.
“The public’s misapprehensions of fraud in the 2020 results are themselves the product of fraud.”
As the analysts for Just Security noted, apropos of Giuliani and an array of attorneys: “It’s arguable that these lawyers have undermined popular support for constitutional democracy at a foundational level. Notwithstanding the nearly complete failure of all of these election-fraud lawsuits, a large percentage of the public believes the 2020 election results to be the product of fraud. One could say that the public’s misapprehensions of fraud in the 2020 results are themselves the product of fraud—on and in the courts and in other public fora, accomplished by this set of lawyers, among other people.”
New York, in fact, has a mechanism to suspend a lawyer’s license in an emergency situation. A rogue lawyer “may be suspended from practice on an interim basis during the pendency of an investigation or proceeding on application or motion of a committee…upon a finding by the court that the respondent has engaged in conduct immediately threatening the public interest.”
What is significant about this measure is that the concern is not to cancel a lawyer per se as much as it is to protect the public. As the grievance committee pointed out in its opinion on Giuliani: “The ultimate purpose of any disciplinary proceeding, however, is not to impose punishment for breaches of the Rules of Conduct, but rather ‘to protect the public in its reliance upon the integrity and responsibility of the legal profession.’”
This is exactly where the focus should be—protecting members of the commonwealth from a false belief that if someone sanctioned to practice law makes frivolous claims in court then there must be something to it. The bar is the entity, and really the only entity, to provide that safeguard. And the dispatch with which the bar exercises its prerogative to impose such sanctions is critical.
Giuliani’s license was suspended by New York in June 2021, about six months after the offending events. Under present rules, this is the best that might be expected—but it falls short of protecting the public “in its reliance upon the integrity and responsibility of the legal profession.” Proceedings against Giuliani still pend in Washington, DC.
The solution has to be the adoption of new rules that call for quick action. And the strictures need to make a clear distinction between stealing from a client and attacking democracy. If a lawyer trafficks in falsehoods to undermine the rule of law and to alter free and fair election results, then the punishment must be swift and severe. The offender cannot think for a minute that such assaults will be countenanced or that judgment day on their license can be tied up and delayed in lengthy disciplinary proceedings.
It is time for a national regime of ethics. The ABA needs to act now.
A final observation. The year John Dean testified about the crimes of Watergate—1973—happens to be the year that the upstart real estate scion Donald Trump was introduced to Roy Cohn, a lawyer known for shady ethics and bare-knuckled threats. Trump learned from Cohn that smear, smear, smear; delay, delay, delay; and deny, deny, deny were tactics that often win the day, regardless of the merits of a claim. Trump and his current attorneys have obviously taken a page from the Roy Cohn playbook in their approach to disciplinary proceedings.
But they too should worry about the comeuppance of a lawyer who supported Trump but eventually lost favor. Cohn, publicly reviled and disgraced, was disbarred just months before his death in 1986.
Better to follow John Dean’s example. He was disbarred following Watergate, and has spent much of the last 50 years, including by coteaching the Watergate continuing legal education, warning lawyers, especially young attorneys in positions of power, to avoid being sucked in by the lure of power.
“Power tends to corrupt,” observed Lord Acton, the British politician, in 1887, “and absolute power corrupts absolutely.” His words would serve as a kind of mantra during the Nixon era. And the phrase resonates yet again as Trump and his legal cabal continue to face a succession of men and women in black robes.
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