Less than a week after the election of President-elect Biden, supporters turn to Shakespeare’s “Henry VI” for their first priority: “First we kill all lawyers.” That lawless fantasy of the character “Dick the Butcher” does not seem to have found acceptance only in public but also by some lawyers themselves.
Within 24 hours of the election, the media and a number of legal analysts did not explain any evidence of election fraud to change the outcome. The problem was we hadn’t even seen the Trump campaign records or evidence. When Trump’s lawyers started filing cases claiming everything from deceased voters to biased authentication, the solution became clear: get rid of the lawyers. No lawyers, no cases, no Trump.
Most worryingly, these efforts are being led or fired by lawyers. Take Washington Post columnist Randall Eliason, who rose to prominence and supported a number of theories pertaining to impeachment or criminal claims against Trump, including a corruption interpretation long rejected by the Supreme Court and not even adopted by the impeacher’s judicial committee. Eliason wrote a column, “Yes, prosecuting Trump’s law firms is fair game.” (Everything seems like a fair game when the ultimate target is Trump.) Eliason shrugged off the notion that attacking a person’s lawyers and not their positions is a pale thing: “Law is a profession, but these mega law firms are big companies too. Like any business, they can be held accountable by the public and their other customers. “
However, the law is not like any other business. Lawyers speak for others, including some of the least popular among us. I have represented clients who have ranged from judges to congressmen and whistleblowers to spies, terrorists and polygamists. Many have been hated by the public demanding that I be fired from my law school – but I have never seen a campaign like this waged by lawyers against lawyers.
Our legal system works best when competent lawyers bring cases to dispassionate judges. In this case, around 72 million Americans voted for Trump, and many believe changes in the process – particularly the massive increase in mail-in votes – have undermined the integrity of the election. This is why these cases are important: Belief in our legal and political systems depends on fair access to and representation in courts.
As in the past, there is a disturbing symbiosis between media and activists who feed each other. When Biden was viewed as the likely winner, theories about voting irregularities instantly became “conspiracy theories”. Groups like the Lincoln Project turned against law firms and launched a campaign to force lawyers to abandon Trump as a client.
These efforts resulted in Twitter blocking the Lincoln Project to target individual Trump attorneys in a tweet (accompanied by an emoji with a skull and crossbones) that was classified as threatening and abusive. That only seemed to excite the Lincoln Project. She reportedly targeted law firms like Porter, Wright, Morris & Arthur along with Democrats and threatened their lawyers with professional ruin. It has been claimed that any company that works for Trump in election disputes is part of a “dangerous attack on our democracy”. The attempt to deprive people of their legal aid is of course the real attack on our democracy – and it worked: the law firm collapsed and withdrew. The pressure caused internal fighting and the resignation of at least one lawyer.
Other campaigns were directed against individual lawyers and so-called “fellow travelers” during the McCarthy period. After the election, MP Alexandria Ocasio-Cortez (DN.Y.) called on the Liberals to compile lists of enemies of the “accomplices” in the Trump administration. (Ironically, the Republicans who started the Lincoln Project were the first contribution by a Bernie Sanders substitute). Former Obama spokesman Hari Sevugan proudly tweeted: “WH employees are starting to look for jobs. Employers considering them should know that there are ramifications to the hiring of people who helped Trump attack American values. “
However, efforts to intimidate lawyers representing Trump or his campaign are not about revenge. It’s about insurance. Although the success of these challenges is small and diminishing, the opponents do not want to risk judicial control of the vote. Social media campaigns were aimed at clients of companies like Jones Day, while the Lincoln Project pledged $ 500,000 to make these lawyers’ lives hell. It is the type of tactic Antifa and other activists use to “demold” speakers or harass people in their homes.
Trump is very unpopular with many Americans – and virtually all media outlets – so harassing anyone who supports or represents him is popular. It is mob justice that targets the justice system itself. However, lawyers like Eliason welcome the effort.
Eliason justified such harassment on the fact that the Trump campaign and Republican groups have “filed lawsuits containing unsubstantiated allegations of fraud aimed at rejecting legitimate votes.” Notice the word “appear”. Eliason didn’t know when he was writing the column because he didn’t see the evidence. Neither do I. We only started seeing underlying evidence (or lack of it) this week when courts held hearings on pending motions. It is the difference between wishing something is true and knowing that something is true. This is generally determined by the courts.
However, there is little patience to discuss or even argue these legal issues. On Friday, I discussed these challenges, including a Michigan district where thousands of Trump votes were originally counted as Biden votes. The district used the same voting software that has been the subject of much national debate. While I explained that the flawed record was due to human error and not something “nefarious”, the question remains whether such new systems or software could be prone to human error. Despite my testimony that there was no evidence of systemic problems, Colorado law professor Paul Campos condemned me as a “Holocaust denier” who should be fired. I was accused of being “both sides” for discussing the Trump campaign allegations, despite finding that Biden is the duly elected president.
Notably, Joe Biden is the person who is most undermined by these efforts. Instead of calling for a transparent review of these cases to reaffirm his legitimacy as an elected president, his supporters harass lawyers and conduct a hysterical retaliation campaign. It’s an ironic twist: many of us have wondered for years how guilty Trump looked in his efforts to harass prosecutors and thwart the Russia investigation. The best thing for Trump would have been to support a full, open investigation. Likewise, there is currently no compelling evidence of systemic electoral fraud and it would be best for Biden to support a full, open investigation. Threats and biased media coverage only add to the suspicions of Trump voters.
There is an alternative. We can all agree that every vote should be counted and every vote should be heard. Both our political and legal systems require a leap in faith – and this faith crisis has now shifted from the political to the legal system. Courts are supposed to be where reason exceeds the anger that reigns outside the courthouse. However, lawyers are still required.