The Limits of ‘Lawfare’ in a Democracy: A Teaching Moment for 2024
One day after the U.S. Supreme Court’s ignominious Presidential immunity decision, the New York Supreme Court meted out accountability and formally disbarred Rudy Giuliani, Donald Trump’s former personal attorney, for violating several core tenets of the professional code of conduct with the aim of undermining public confidence in the American electoral process.
In 2020 American voters learned of a surprising new threat to democracy and the rule of law: lawyers.
Investigations revealed widespread wrongdoing by lawyers related to fraud, forgery, conspiracy, frivolous litigation and other attempted interference with the 2020 electoral process.
These attorneys filed numerous “lawfare” suits on behalf of the Trump campaign in flashpoint states such as Arizona, Georgia, Michigan, Pennsylvania and Wisconsin. These actions — defined as the strategic use of legal proceedings to intimidate or hinder — were desperate attempts to impede the counting or certification of votes with the intent to change the election results.
There is urgent need for courts and bar associations at state and national levels to ramp up ethics education and disciplinary vigilance for all legal professionals who might be involved with elections. This should be done before it’s too late in the 2024 election cycle, lest the norm-breaking we saw in 2020 becomes the new normal.
The principle at stake here is fundamental and non-partisan. In any given election the risk of lawfare abuse will come overwhelmingly from the losing side or the side that fears loss.
Democracy can be raucous and rancorous, and the adversarial legal system is all about vigorous aggressive debate and dogged defense of interests. Any aggrieved party can and should have their day in court, but legal advocates must respect the rule of law and code of professional conduct. Advocates may use inventive arguments, but not invented facts. The legal system — and American democracy — cannot work if knowing dishonesty is allowed to prevail and propagate without accountability. There must be limits to treating the law as politics by other means in the context of elections.
In some instances, the wrongdoing has risen to the level of criminal prosecution. This has been the case with Trump lawyers who are accused of trying to advance fake electors, such as Rudy Giuliani and Jenna Ellis in Arizona and Georgia, John Eastman and Christina Bobb in Arizona, Jeffrey Clark in Georgia, Kenneth Chesebro and James Troupis in Wisconsin.
Lawyers can also face disciplinary investigations and other types of penalties for misconduct based on the rules of professional ethics which are supervised by state bar associations.
In a long-pending ethics case against Clark, The D.C. Bar Disciplinary Counsel has summarized the challenge and sounded a clear call to action in the election context: “It is not enough that the efforts of these lawyers ultimately failed. As a profession, we must do what we can to ensure that this conduct is never repeated. The way to accomplish that goal is to remove from the profession lawyers who betrayed their constitutional obligations and their country.”
D.C. bar counsel continues: “It is important that other lawyers who might be tempted to engage in similar misconduct be aware that doing so will cost them their privilege to practice law. It is also important for the courts and the legal profession to state clearly that the ends do not justify the means; that process matters; and that this is a society of laws, not men.”
Bar sanctions can range from warnings and reprimands to monetary penalties, license suspensions and full disbarment in the states where attorneys are licensed. Felony convictions involving moral turpitude usually result in automatic suspension. This is an important example of professional self-regulation to maintain trust in the profession.
Typically, state bars investigate and propose penalties that are reviewed by special panels of local appellate courts. In addition to the just-concluded Giuliani case, prominent ongoing election ethics cases include Chesebro in Wisconsin and possibly other states, Stefanie Lambert in Michigan, John Eastman in California, and Jeffrey Clark in Washington DC.
The ongoing Clark ethics case is particularly instructive. Clark, who was a senior official in the Trump Department of Justice, has been recommended for disbarment. Counsel for the D.C. Board of Professional Responsibility found that Clark had engaged in a “dishonest attempt to create national chaos on the verge of January 6.” Specifically, Bar counsel charges Clark lied in court submissions “about supposed fraud in an effort to swing the election to Donald Trump” and this “seriously interfered with the administration of justice.” Such acts constitute violations of oaths of fidelity to the court and the public.
Enforcement is necessary to demonstrate accountability. These disciplinary actions for malfeasance in 2020 have taken far too long. Accountability delayed translates into impunity. Many of the penalties have also been paltry. For example, the Colorado Office of Attorney Regulation Counsel agreed to a fine of just $224 on Jenna Ellis for making repeated false statements and misrepresentations to the public. Not much of a deterrent.
Prevention is at least as important as punishment after the fact. Publicizing these cases of unethical conduct — shaming before professional peers and the public — can be a deterrent against future malfeasance. More also needs to be done to put practitioners on notice about how the ethical rules apply to heated contested elections.
It’s up to the American Bar Association and state bars to set ethical rules and conduct continuing professional educational programs. While requirements vary from state to state, practitioners in most states are required to participate in annual continuing legal education (CLE) courses, briefings and lectures.
The American Bar Association is a pillar of our democratic civil society. It was founded in 1878 “on a commitment to set the legal and ethical foundation for the American nation,” and plays a key teaching role. The national body accredits law schools and sets the Model Rules of Professional Conduct. The ABA’s Standing Committee on CLE should urgently coordinate with state bars to update their topical teaching units on election law ethics, also at the law school and bar exam levels.
The array of election wrongdoing by lawyers demands that state bar associations incorporate teachings in CLE. Using actual examples from recent elections, it would be appropriate to remind all members of the bar — and the public — of the ethical obligations of lawyers contained in the Model Rules. These include duties of truthfulness to courts, other attorneys and the public and avoidance of frivolous litigation.
In addition to the specific bar ethics rules, the criminal cases mentioned involve several state and federal laws, such as “conspiracy to commit offense or to defraud the United States” (18 U.S.C. § 371), that should also be emphasized as part of the up-to-date election law curriculum.
Finally, it is worth noting that, while legal ethics is usually taught using negative examples, there are important positive counter-examples from the 2020 election cycle. These include Attorney General William Barr, his acting successor Jeffrey Rosen, Rosen’s deputy Richard Donoghue and Vice President Mike Pence’s counsel Gregory Jacob, all of whom refused to participate in the electoral fraud schemes and spoke against such plots internally, as enumerated in the final report of the House Select Committee to Investigate the January 6 Attack on the Capitol.
The 2020 election was an object lesson in how ballot disputes and legal ethics can collide at the expense of liberty. Not only the criminal courts but also bar associations owe it to the public not to miss this critically important teaching moment about the high responsibility of lawyers in our democracy.
One of the Bard’s characters exhorts, “The first thing we do is, let’s kill all the lawyers.” What is often misunderstood about the context in Shakespeare is that the speaker was plotting a path to despotism. The point is that lawyers are part of the bulwark against tyranny, and not its enabling.
Mark Medish and Daniel Lucich, both attorneys in Washington, are respectively co-founder and general counsel of Keep Our Republic, a non-partisan civic education organization, which is a 2024 ABA “Unsung Hero of Democracy” award-winner.