Below is my column in The Hill on the successful campaign that has forced firms to drop Donald Trump or the Republican Party as clients in the ongoing litigation over the 2020 election. Notably, this campaign started soon after the election was called for President-Elect Joe Biden.
Here is the column:
Less than a week after the election being called for President-elect Biden, supporters are turning to Shakespeare’s “Henry VI” for their first priority: “The first thing we do, let’s kill all the lawyers.” That lawless fantasy of the character “Dick the Butcher” appears to have found acceptance not only among some of the public but some lawyers themselves.
Within 24 hours of the election being called, the media and an array of legal analysts declared no evidence of voter fraud to change the outcome. The problem was that we had not even seen the Trump campaign’s filings or evidence. As Trump lawyers began to file cases, alleging everything from deceased voters to biased authentication, the solution became clear: Get rid of the lawyers. No lawyers, no cases, no Trump.
What is most unsettling is that this effort is led or cheered on by lawyers. Take Washington Post columnist Randall Eliason, who gained notoriety supporting an array of theories on impeachment or criminal claims against Trump, including a bribery interpretation long rejected by the Supreme Court and not adopted even by the impeachment-eager House Judiciary Committee. Eliason wrote a column, “Yes, going after Trump’s law firms is fair game.” (Everything seems fair game if the ultimate target is Trump.) Eliason shrugged off the notion that attacking a person’s lawyers, rather than his positions, is beyond the pale: “Law is a profession, but these mega-law firms are also big businesses. Like any business, they can be held accountable by the public — and by their other customers.”
The law is not like any other business, however. Lawyers speak for others, including some of the least popular among us. I have represented clients ranging from judges, members of Congress and whistleblowers to spies, terrorists and polygamists. Many were hated by the public, who demanded that I be fired from my law school — but I have never seen such a campaign led by lawyers against lawyers.
Our legal system works best when competent lawyers present cases to dispassionate judges. In this case, some 72 million Americans voted for Trump, and many believe changes in the process — particularly the massive increase of mail-in voting — undermined the election’s integrity. That is why these cases are important: Faith in our legal and political systems depends on fair access to and representation in the courts.
As in the past, there is a disturbing symbiosis of the media and activists feeding off each other. When Biden was viewed as the likely winner, theories of voting irregularities instantly became “conspiracy theories.” Groups like the Lincoln Project targeted law firms and launched a campaign to force lawyers to abandon Trump as a client.
This effort resulted in Twitter blocking the Lincoln Project for targeting individual Trump lawyers in a tweet (accompanied by a skull-and-crossbones emoji) that was deemed threatening and abusive. That only seemed to thrill the Lincoln Project. It reportedly joined Democrats in targeting law firms like Porter, Wright, Morris & Arthur and threatening its lawyers with professional ruin. It claimed that any firm working for Trump on election litigation was part of a “dangerous attack on our democracy.” Trying to strip people of their counsel, of course, is the real attack on our democracy — and it worked: The firm buckled and withdrew, saying the pressure caused internal struggles and at least one lawyer’s resignation.
Other campaigns have targeted individual lawyers and what used to be called “fellow travelers” during the McCarthy period. After the election, Rep. Alexandria Ocasio-Cortez (D-N.Y.) called for liberals to assemble enemies lists of those “complicit” in the Trump administration. (Ironically, the first entry by a Bernie Sanders surrogate were the Republicans who founded the Lincoln Project). Former Obama spokesman Hari Sevugan proudly tweeted: “WH staff are starting to look for jobs. Employers considering them should know there are consequences for hiring anyone who helped Trump attack American values.”
However, the effort to intimidate lawyers representing Trump or his campaign is not about vengeance. It is about insurance. Even though the success of these challenges is small and shrinking, opponents do not want to risk any judicial scrutiny of the vote. Social media campaigns targeted the clients of firms like Jones Day, while the Lincoln Project pledged $500,000 to make the lives of these lawyers a living hell. It is the kind of tactic used by Antifa and other activists to “deplatform” speakers or harass individuals at their homes.
Trump is highly unpopular with many Americans — and virtually all of the media — so it is popular to harass anyone who supports or represents him. It is mob justice targeting the justice system itself. Yet, lawyers like Eliason are applauding the effort.
Eliason justifies such harassment by saying the Trump campaign and Republican groups “have filed lawsuits that appear to contain baseless allegations of fraud and that seek to have lawful votes rejected.” Note the word “appear.” Eliason did not know when he wrote the column because he has not seen the evidence. Neither have I. We only began to see underlying evidence (or the lack thereof) this week as courts held hearings into pending motions. It is the difference between wanting something to be true and knowing something to be true. That is generally what courts determine.
Yet, there is little patience for discussing, let alone litigating, these legal issues. On Friday, I discussed these challenges, including a Michigan district where thousands of Trump votes were initially tallied as Biden votes; the district used the same voting software that has been the subject of much national debate. While I explained that the mistaken tally resulted from human error and nothing “nefarious,” the question remains whether such new systems or software might be vulnerable to human errors. Despite my stating there was no evidence of systemic problems, Colorado Law Professor Paul Campos denounced me as akin to a “Holocaust denier” who should be fired. I was accused of “both sideism” for discussing the claims of the Trump campaign, even when noting that Biden appears the duly elected president.
Notably, the person most undermined by these efforts is Joe Biden. Rather than call for a transparent review of these cases to affirm his legitimacy as president-elect, his supporters are harassing lawyers and running a hysterical campaign of retaliation. It is an ironic twist: For years, many of us marveled at how guilty Trump looked in his efforts to bully accusers and scuttle the Russia investigation. The best thing for Trump would have been to support a full, open investigation. Likewise, there is no compelling evidence of systemic election fraud now, and the best thing for Biden would be to support a full, open investigation. Threats and biased media coverage only deepen the suspicions of Trump voters.
There is an alternative. We can all agree that every vote should be counted and every voting case be heard. Our political and legal systems both require a leap of faith — and this crisis of faith has now moved from the political to the legal system. Courts are supposed to be where reason transcends the rage that reigns outside the courthouse. However, it still requires lawyers.