Opinion: Finally, an initiative to hold Trump’s lawyers accountable
Rudolph W. Giuliani has been suspended from practicing law in New York and D.C. Other lawyers, including Sidney Powell and L. Lin Wood, were sanctioned by a federal judge in Michigan for their frivolous suits. A federal judge in Colorado sanctioned two lawyers for bringing their meritless actions. In all these cases, the lawyers did not exercise due diligence to investigate whether the claims they were bringing were true.
John Eastman, author of the infamous memos suggesting how to overturn the election, is being investigated by the State Bar of California. But what has been missing until now is an exhaustive search and discipline for all the attorneys who violated their oaths. That’s the gap the 65Project intends to fill.
The organization’s advisory board includes former Democratic senator Thomas A. Daschle from South Dakota; Christine M. Durham, a retired chief justice of the Utah Supreme Court; Roberta Cooper Ramo, the first woman to serve as president of the American Bar Association and president emeritus of the prestigious American Law Institute; and Paul Rosenzweig, a senior adviser to the Chertoff Group, a security risk advisory firm co-founded by former secretary of homeland security Michael Chertoff.
The group has identified 111 lawyers across 26 states whose names appeared on President Donald Trump’s post-election lawsuits. The first 10 bar complaints it announced on Monday target “attorneys who supported sabotaging legitimate election results including fake electors, Trump’s inner legal circle, and insurrectionists to hold them accountable by seeking disciplinary action up to and including disbarment.” Trump had a right to pursue plausible claims in court, but lawyers have a higher obligation not to file actions that rely on invented facts or conspiracy theories they haven’t bothered to investigate.
The defendants include two fake electors from Georgia and one from Wisconsin. Other attorneys facing bar complaints are Cleta Mitchell, who participated in the infamous call in which Trump attempted to strong-arm Georgia Secretary of State Brad Raffensperger to “find” enough votes to flip the state; Jenna Ellis, a Colorado attorney and conservative media commentator; Boris Epshteyn, a former Trump aide who has acknowledged his role in seeking “alternate electors”; and Joseph diGenova, a longtime Republican player in Washington legal circles. They are alleged to have lied “to the court and in public statements about the election, orchestrating the fake electors scheme and promoting violence.”
The subjects of the last two complaints are an attorney who participated in (and was charged in) the Jan. 6 rally, and one who attended and then filed a frivolous action “seeking to have the 117th Congress declared unconstitutional.”
The 65Project plans to continue researching other lawyers who may have violated their professional responsibilities. It also will launch public education campaigns in Pennsylvania, Michigan, Wisconsin, Arizona, Georgia and Nevada “to raise public awareness around these issues and promulgate model language for the American Bar Association and state bars to clarify the rules ahead of the 2022 election that fraudulent and malicious lawsuits to overturn legitimate election results violate the ethical duties lawyers must abide by.”
I’ve been an early and frequent advocate of exactly this sort of project. To protect our democracy and to maintain a rules-based legal system, lawyers who violate their oaths — or participate in an insurrection — must face consequences. This is the only meaningful way to prevent attorneys from supporting future coups and providing bogus legal advice to encourage politicians to engage in insurrection.
I asked the 65Project’s managing director, Michael Teter, about members of Congress who are lawyers. “We plan to bring complaints against elected officials who helped instigate January 6 or who participated in litigation that raised fraudulent and bogus claims,” he wrote in an email. “Of the 30 or so members of Congress who are lawyers and signed the amicus brief in Texas v. Pennsylvania,” which sought to throw out Pennsylvania’s electoral votes, “we’re identifying the more egregious among them (based on public statements, voting for the electoral count objections, etc.) and will be bringing bar complaints soon.”
The 65Project will also look into the conduct of Ken Paxton, the Republican attorney general of Texas, who brought the lawsuit challenging election results in four swing states, and that of his counterparts in Arkansas, Utah, Louisiana, Missouri, Mississippi and South Carolina. “As part of that,” Teter said, “we’re considering filing open records requests to see if state resources were expended to go into other states and look for ‘voter fraud.’”
His group cannot carry the caseload alone. Teter told me, “We will turn to recruiting local teams of attorneys in each state where we’ll be filing complaints and start going through the relevant court documents to assemble the strongest case against the Big Lie lawyers that we can.” He added, “Then, we’ll begin filing the complaints, probably in waves.” Sounds like an exciting pro bono endeavor for some major law firms.
The 65Project’s announcement should come as a relief to democracy defenders who think many lawyers failed miserably in their professional obligations. Trump couldn’t have filed cases on his own; he needed lawyers. He didn’t come up with bogus theories to justify a coup; lawyers did it for him. Those lawyers should not get a pass for violating professional rules of conduct. If the bar complaints deter lawyers from helping Trump or other politicians in a future insurrection, the 65Project’s effort will have achieved some much-needed democratic hygiene.
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