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.
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