Why the Justice Department must prosecute the lawyers who conspired with Donald Trump

If Shakespeare had been born Jack Smith, maybe in Henry VI, part 2, the character Dick the butcher would not have said: “First we kill all the lawyers”, but: “First we call them all unindicted co-conspirators.”

Smith’s August 1st accusation by Donald Trump lists six – SIX! – Co-conspirators, and they were all identified as attorneys. This is a dark spot on the profession, but it shouldn’t completely blot out the light.

Two sides of the history of lawyers and American democracy have long coexisted.

On the one hand, lawyers have the same vulnerabilities as any other citizen. When Alexis de Tocqueville, the unsurpassed chronicler of the 19th^th century America, observed“Like most other men,” lawyers “are guided by their private interests, and particularly by the interests of the moment.” But Tocqueville also saw another side of the story. In fact, he was more emphatic in emphasizing the vital role that lawyers could, and hopefully would, play in American history.

“Men,” he wrote, “who have made a special study of the law develop certain habits of order from this occupation.” Controlled and stopped the influence of his legal advisors.”

History has proved him right in both his concerns and his hopes for the legal profession. lawyers were often a bulwark of the American constitutional system. But when they, of all people, give in to “the interests of the moment” and betray this system, the wound is deep.

American I learned this lesson during Nixon’s Watergate scandal as lawyers supported and favored the disgraced 37^th Crimes of the President. As John Dean, once Nixon’s former White House Attorney said“I made a list of people who would likely be charged. . . I have placed a small asterisk next to each attorney, namely Mitchell, Strachan, Ehrlichman, Dean, Mardian, O’Brien, Parkinson, Colson, Bittman and Kalmbach.”

“[H]How in God’s name could so many lawyers get involved in something like that?”

Dean’s fears that many of the attorneys supporting Nixon would be indicted proved justified. The charges against these individuals were brought by Special Prosecutors Archibald Cox and Leon Jaworski and their associates, who, in Tocqueville’s words, “appreciated legality” and defended it.

Unfortunately it seems so Déjà-vu Once again, as the nefarious role of attorneys in Trump’s “Big Lie” campaign emerges from the pages of the August 1st grand jury’s indictment in Washington DC against the former president. But with good reason, the prosecution did not indict the co-conspiring attorneys: to expedite the trial of alleged boss Donald Trump. To indict the others as co-defendants alongside Trump and to bring them to justice would have complicated the process and slowed the exchange of blows to a snail’s pace.

But the unindicted conspirators are smart enough to realize their days on the record will soon be over. The naming of those involved in the alleged crimes will certainly put these six lawyers in a kind of spiritual purgatory for the time being.

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And we already have a good idea of ​​what they’ll say when the day comes for their indictment. On August 2, Harvey Silverglate, the attorney for John Eastman, one of Trump’s unindicted attorneys, stated: wrote that Eastman “acted in the highest traditions of the legal profession to advise his client, even when some of his theories were at the very limits of the law.”

Eastman has well overstepped the line of legality and disregarded his attorney’s oath to support the Constitution. He did so when he penned two memos claiming that Vice President Mike Pence, as chair of the Joint Session of Congress, was “the ultimate arbiter” in deciding whether the votes of presidential voters would be accepted or rejected.

Indeed, in March 2022, Judge David Carter of the Federal District Court ruled found It is highly likely that Eastman had gone beyond simply providing legal advice and engaged in a conspiracy with Trump to obstruct congressional negotiations.

Constitutional scholar Steve Vladeck has specifically pointed out why anyone would say this at all Eastman’s advice was legitimate, wasn’t it patterns exist. Under the 12th amendment, Vladeck has emphasized: “There is no discretion.” [the Vice President’s] part, nor has any Vice President previously claimed authority to reject properly formatted certificates.

At the White House on January 4: Eastman himself authorizedAccording to Pence attorney Greg Jacob’s testimony before the House Committee on Jan. 6, we would “lose 9-nothing” in the Supreme Court.

The unlawful and unethical activities allegedly involving other unindicted conspirators could put her in the same boat as Eastman. For example, co-conspirator #5 (identified as Attorney Kenneth Chesebro) wrote an email to Eastman, suggesting that Supreme Court Justice Clarence Thomas rule the Georgia election dubious. Co-conspirators #1 (identified as Rudolph Giuliani) and #6 (identified as Boris Epshteyn) were reportedly allies in running the Trump campaign’s fake campaign in seven states.

Again, if a member of the Bar encourages others to sign fake ballots and pose as “official,” he is not acting as a lawyer but as someone who, as Tocqueville put it, “is guided by his private interests.” . Seeking to ingratiate themselves with Donald Trump, the lawyers appear to have become accomplices and instigators of crime — subverting the constitutional order rather than protecting it.

At the same time, the lawyers who are now close to Trump are almost certainly in for trouble. According to the Aug. 5 New York Times, his legal team said: “is marked with a tangle of potential conflicts And overlapping interests.

Jack Smith’s classified document and the obstruction of justice trial unfolding in a Florida federal court have highlighted these conflicts in a motion survey Attorney Stanley Woodward represented Trump’s co-defendant Waltine Nauta and at least seven other witnesses in the case. Woodward before represented Yuscil Taveras. He is expected to be the key witness against Nauta.

In the short term, Woodward may well not be excluded from representing Nauta. Trump’s valet can say he understands the potential conflicts and wants Woodward to stay on as his attorney. After all, Trump’s SuperPAC “Save America” ​​should be there pay Woodward’s Fees. However, should convictions later occur, clients may change their minds and challenge their attorney’s representation. “Oops, when I waived the conflict, the attorney didn’t tell me something.”

That’s one reason, among many, for the Boston Globe’s headline: “The most dangerous job for lawyers it is to be on Trump’s legal team.”

For the rest of us, Trump has jeopardized Americans’ confidence in elections, and he is doing so now aimed at “anyone who’s after me” including the legal system and the legal profession itself.

That brings us back to Key reasons why the August 1 indictment matters. It’s a powerful reminder that on one side of Tocqueville’s two stories is a competent and vigilant legal profession in pursuit of accountability. It both helps improve the legal profession and is the necessary antidote for a rule of law nation to ensure other lawyers stay on the path of integrity.

The attorneys in the Special Counsel’s office aren’t the only ones vindicating Tocqueville’s hopes. Lawyers from bipartisan groups like Lawyers defending American democracy (affiliated with co-author Aftergut), the United States Democracy Center and the 65 projecthave also rendered a real service to the legal profession and to the country as a whole through their initiative professional Accountability through disciplinary complaints naming most, if not all, of the unindicted DC grand jury conspirators.

Stay tuned. Criminal liability will soon follow.