The Legal Profession Brooks No Dissent

Many path-breaking reforms in this country were achieved through contentious litigation: Fighting to end segregation; defending neo-Nazis marching in Skokie, flag-burning, Gitmo detainees, and death row inmates; advocating for same-sex marriage, and much more. Conflicts and disagreements—an inherent aspect of human nature—are resolved either by reason or force. For reason to prevail, public discourse requires that contending positions be given the opportunity to compete in the marketplace of ideas. When legal issues are involved, litigation is often necessary to test—and resolve—disputed questions of doctrine and policy.

Organizations such as the National Association for the Advancement of Colored People (NAACP) and the American Civil Liberties Union (ACLU) rose to prominence in the 20th century by challenging the status quo in court, even when the cause was controversial or unpopular. Lawyers used to embrace this role, adopting Atticus Finch as both a fictional hero and a role model. That was then.

As Northwestern University law professor (and Law & Liberty contributing editor) John McGinnis explained in City Journal, the legal profession in America has been transformed into “a force for often-radical progressive change.” The American Bar Association (ABA) exemplifies what McGinnis describes as the profession’s “lurch to the left,” but the same trend is evident in the overwhelmingly leftist orientation of the nation’s law schools, the judiciary, law firms’ “pro bono” programs, legal publications catering to lawyers, and local bar associations. Far from celebrating cutting-edge advocacy, bar associations increasingly use their disciplinary powers to punish—even purge—dissenting views.

In the 1950s, when opponents of desegregation in Alabama harassed the NAACP to foil its legal efforts, the U.S. Supreme Court intervened, emphasizing the importance of “[e]ffective advocacy of both public and private points of view, particularly controversial ones.” Ironically, some elements of the legal profession now mimic the Jim Crow tactics of the deep South to stymie advocacy with which they disagree. Two recent examples, both arising from the bitterly contested 2020 presidential election, illustrate this point. The organized bar, departing from long-standing norms, is retaliating against legal advocacy for disfavored causes.

John Eastman, a prominent conservative legal scholar who was once dean of the Chapman University law school and a fixture on the Federalist Society speaking circuit (indeed, he chaired the Society’s Federalism & Separation of Powers Practice Group), was forced to retire from Chapman and dismissed from a visiting professor position at the University of Colorado-Boulder. Amidst calls for his removal, Eastman even stepped down as chair of the Federalist Society’s practice group. More pertinently, Eastman is also the subject of an investigation by the House Select Committee chaired by Representative Bennie G. Thompson (D-Miss.), and the target of a complaint filed against him with the State Bar of California.

All of this in response to Eastman’s having served as legal counsel to President Donald Trump in connection with his challenge to the 2020 election, and his appearance at a rally in Washington, D.C. on January 6, 2021, prior to some protesters’ breach of the Capitol. Eastman’s critics claim that he violated the canons of legal ethics, and seek to impose disciplinary action against him, for serving as an attorney for the president of the United States! The State Bar of California is investigating whether Eastman “assisted former President Donald Trump in criminal conduct in connection with the 2020 election and January 6th.”

Two-term Texas Attorney General Ken Paxton faces a professional misconduct lawsuit by the State Bar of Texas arising from a legal challenge filed by Paxton in the Supreme Court on behalf of the State of Texas protesting changes made to election procedures in four states (Georgia, Michigan, Pennsylvania and Wisconsin) by state officials other than the legislature, as required by Article II, Section 1 of the Constitution. Paxton’s legal challenge, joined by 19 Republican state attorneys general and 126 House Republicans, was rejected by the Court for lack of standing on December 11, 2020. The Court’s brief order stated that “Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections.” Justices Samuel Alito and Clarence Thomas disagreed with the dismissal of the case.

Although Paxton’s legal challenge did not delay certification of the election results, critics charge that it was “frivolous” and contained false representations. The state bar’s lawsuit against Paxton could result in sanctions ranging from a private reprimand to disbarment. [Disclosure: I was one of three plaintiffs who sued the state bar for the use of mandatory dues for political purposes; we won.]

Granted, Trump was (and remains) a polarizing figure, triggering strong reactions in many quarters, but especially among his partisan opponents. In some circles, disputes regarding the results of the 2020 election are considered illegitimate and off-limits, despite documented irregularities regarding the manner in which many states allowed ballots (and in particular mail-in ballots) to be cast and counted. (Mollie Hemingway’s 2021 book, Rigged, is a fair-minded overview of election issues.)

The unruly January 6 protests at the Capitol—dubbed an “insurrection” by Trump’s critics—further inflamed sentiment about the election. Readers seeking a counternarrative to the conventional media account of the “insurrection” can find one in Julie Kelly’s detailed 2022 book, January 6, subtitled “How Democrats Used the Capitol Protest to Launch a War on Terror Against the Political Right.” The Left has decreed that challenging election results is verboten—unless your name is Al Gore, Hillary Clinton, or Stacey Abrams.

Eastman’s situation is the more complicated of the two, because the legal issues surrounding the official counting of electoral votes—and the vice president’s role in the process—are quite convoluted and poorly understood. Eastman was the architect of a strategy to postpone the certification of electoral votes on January 6 pending a resolution of challenges in key states.

Rather than try to explicate the details of the controversy here, I refer the reader to a lengthy exchange between Eastman and Joseph Bessette in the Fall 2021 issue of the Claremont Review of Books. Once one clears away the dense weeds, several points stand out, regardless how one comes out on the merits: First, the text of the 12th Amendment (which governs the counting of electoral votes) is ambiguous. Second, Eastman was not the first (or only) scholar to argue that the vice president (acting as president pro tempore of the Senate) has a role in counting the votes, not merely opening the ballots. Third, prior to the 2020 election other scholars (including Harvard’s Laurence Tribe) had imagined scenarios in which certification of the electoral victor could be delayed pending resolution of disputes involving the validity of some states’ electors. Fourth, whether correct or not, in the past prominent Democrats including former Senator Barbara Boxer (D-Calif.), objected to the Senate’s certification of the electoral vote when a Republican candidate won.

In certain blindly partisan circles, any objections to the certification of the election results on January 6 were tantamount to a “coup attempt.” For the rest of us—even those like me, skeptical of Eastman’s aggressive interpretation of the law—a review of the Eastman-Bessette exchange forces the conclusion that, in the words of one observer, “there is more to Eastman’s argument than I had previously supposed. Scholars of various persuasions have denounced Eastman in harsh terms while admitting sotto voce that he might have half a point.” Eastman’s arguments, even if unsuccessful, were within the bounds of good faith legal advocacy. Only fanatical hostility to Trump—and those aligned with him—supports the vindictive attempt to purge Eastman from the practice of law.

Lawyers owe their clients an ethical duty of zealous representation. Eastman’s legal advice to Trump, regardless whether one agrees or disagrees on the merits, was grounded in text, history, and precedent (unlike the positions taken by some other advocates claiming to act on Trump’s behalf). The rabid partisans who filed the bar complaint against Eastman (including the arch-liberal Berkeley law dean Erwin Chemerinsky) explicitly seek retribution: “If the allegations in this complaint are validated, Mr. Eastman should be suspended from the practice of law or be permanently disbarred.” The same group, Lawyers Defending American Democracy, also filed ethics complaints against—and sought the impeachment of—former U.S. Attorney General Bill Barr.

In Paxton’s case, his “clients” are the same voters who elected and reelected him. Unless and until they choose to replace him, Paxton is ethically obligated to zealously represent their interests. The Supreme Court did not rule on the merits of Paxton’s challenge and made no findings suggesting that the pleadings he submitted were in any way “frivolous” or improper. The challenge was widely regarded as a “long shot,” but legal maneuvers often are. U.S. Senator Ted Cruz (R-Texas), an experienced Supreme Court litigator, volunteered to argue the case if the Court agreed to hear it. The case against Paxton is a partisan vendetta—nothing more.

Trump’s political opponents are proving themselves to be “sore winners,” seeking retribution against those who unsuccessfully challenged the election results. The state bar proceedings against Eastman and Paxton are purely vindictive, just like Alabama’s harassment of the NAACP in the 1950s. The avowed goal of the anti-Trump fanatics who filed bar complaints is to “dispel the prevalent idea among some that the 2020 presidential election was stolen.” In other words, agree with us, or else. This is force, not reason.

In a transformation of the roles depicted in To Kill a Mockingbird (1960), the legal profession has shifted from emulating Atticus Finch to behaving like the mob in Harper Lee’s fictional Maycomb, Alabama. Even if inspired by “Trump Derangement Syndrome,” this switch from hero to villain is a lamentable—even tragic—denouement.

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