Jonathan P. Baird

Many commentators have remarked upon the multitude of lawyers intertwined inside the political and business dealings of Donald Trump. When Jack Smith indicted Trump in Washington D.C., at least five of his six co-conspirators were lawyers. These include John Eastman, Jeffrey Clark, Sidney Powell, Ken Chesebro and Rudy Giuliani. There are many others in the Trump orbit waiting in the wings who have also serviced the former president. It is an ever-expanding circle.

These lawyers were so enamored of Trump that they were willing to break the law on his behalf. They produced false documents, made unsubstantiated public claims, and had no hesitation in filing meritless litigation. If Trump could be kept in power, anything was justified.

The range of horrible behavior went from the truly unhinged to the creatively bonkers.

On the deranged scale I would place Sidney Powell at the extreme end with her talk of Hugo Chavez fixing voting machines. John Eastman is the less deranged opposite end of the spectrum with his theories about how others besides the voters can decide elections although his ideas are just as undemocratic.

Jeffrey Clark, the assistant former Attorney General and Trump’s rumored pick to become AG if Trump wins in 2024, was ready to invoke the Insurrection Act and use the military against American citizens who opposed Trump’s coup. Rudy Giuliani had no problem repeatedly defaming two innocent Black election workers who were on Trump’s radar.

Many Trump lawyers signed bogus complaints legitimizing false electors. You have to ask: why would so many lawyers conspire to strip millions of their right to have their votes counted? What has happened to a profession that will countenance this blatant misconduct?

It speaks to a sickness in the legal profession. Where are the lawyers and judges speaking up about the danger of fascism and authoritarianism represented by the MAGA movement? Maybe I have missed it but I have heard little from the American Bar Association or any judges. They are apparently making believe Trump’s coup attempt was normal and was business as usual.

Dahlia Lithwick and Mark Joseph Stern describe “an obsession with pretending that evil deeds are not evil when done in the service of a paying customer”. They argue that “the right flank of the legal profession has adamantly refused to police itself and the legal profession as a whole has hardly raced to hold its most destructive and dangerous members to account”.

Where is the public condemnation from right wing lawyers like the Federalist Society for the insurrection and the attempt to interfere with the peaceful transfer of power? There is some but precious little. If Trump’s coup had been successful and democracy had been overthrown, these folks would have been lining up for jobs with the new Trump Administration. Amorality in the service of career advancement would have been the order of the day.

Law must be a check on authoritarian power. History shows the danger when lawyers and judges fail to respond to emerging fascism. In the 1930’s, German lawyers and judges might have opposed Hitler’s authority and the consolidation of fascism. They failed to do so. Even worse they collaborated and interpreted the law in a way that facilitated the Nazis’ ability to carry out their agenda.

There was a massive failure of professional ethics. In April 1933 when the German state ministry of justice suspended all Jewish judges, public prosecutors, district attorneys and law professors, there was no protest. The legal profession accommodated the Nazis.

Lawyers and judges were key collaborators with the fascist regime and provided a patina of legitimacy. The Nazis craved the appearance of legality. Admittedly opposition carried big risks but even from early on, the German legal profession made peace with the Nazis.

Fascism worships power above all and fascists want to use the machinery of democracy to subvert it. They believe in the power of the leader rather than the rule of law.

Ingo Muller, the author of Hitler’s Justice, says Hitler “detested lawyers as pen-pushers who filled whole volumes with tangled commands and prohibitions and always had their noses buried in ridiculous tomes”. He had no use for constitutions or statutes or anything that interfered with his complete freedom of action.

I would submit that the roots of corrosion in America’s legal profession run deep. It begins in law school. The extreme cost of school pushes many onto a corporate or big law firm trajectory. Law school is so unaffordable that it is hard to survive the debt without landing some kind of high-paying job. Student loan payments are too much. Jobs like Legal Aid or Public Defender are very hard to swing without a significant other to foot bills.

Powerful law firms are often closely aligned with serving the rich. They are the high-paying clients. Law ends up serving the needs of the 1% which is warping. The needs of the 1% are vastly different than the broader needs of society. Lawyers end up doing nothing about climate change, economic inequality, racism or sexism. They mostly are about making rich people richer.

Of course there are many lawyers who are on more independent tracks and who do wonderful things representing their clients. There are solo practitioners, public interest, pro bono, and many small firms who zealously represent their clients.. The profession is diverse but the power of corporate America dominates the marketplace.

Money dictates why so many cannot retain lawyers. Overwhelmingly, people cannot afford that expense. What does it say about a profession that is out of reach for most people? I would note that over the last decade, to its discredit, the legal profession has become less welcoming to people of color.

Over the last 40 years, we have seen the emergence of the Federalist Society and law firms funded lavishly by right wing billionaires. They have created many opportunities for law students and lawyers who are in tune with the right wing agenda. Those willing to play ball can reap extravagant rewards.

Ideological loyalty has become a credential, not a liability. Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett are all exemplars of the Federalist Society pipeline. The Federalist Society serves as a gravy train for those aligned with that ideological project. Judge positions, clerkships and job opportunities all follow for those who will serve their 1% masters. The idea of equal justice under law has been shelved and gets lip service only.

Cardozo Law Professor Deborah Pearlstein writes that the Office of Professional Responsibility, part of the U.S. Department of Justice, makes far fewer ethics investigations than it did in the 1990’s. By all appearances, ethical violations have been downgraded in the profession. Certainly the behavior of the Supreme Court reflects the decline of professional ethics as the Court enforces no standards. Professor Pearlstein argues:

“The Trump case shows lawyers not only failing to make sure their government clients operate within the bounds of our democratic system but stretching to help those clients craft ways to subvert it.”

Very few Trump lawyers have faced any consequences for their misconduct. Linn Wood has had his law license “retired”. Rudy Giuliani and John Eastman are facing possible disbarment. Jenna Ellis received a public censure in Colorado for making misrepresentations on national TV and on Twitter. So far many other Trump lawyers have escaped any discipline. They have apparently concluded that making arguments that subvert democracy carries minimal risk.

The record of the profession policing itself is terrible. The problem with lawyers is not just greed or classism. It is their willingness to do the wrong thing, thinking there will be no consequences and that is too often the case.