Persecution of Trump’s lawyers imperils the rule of law

We don’t live in a free country any more. Perhaps you hadn’t noticed.

It’s easy to miss the vapor of totalitarianism seeping into America when most of our lives are dominated by 21st-century bread and circuses, propaganda silos, and self-made virtual worlds, layered on top of centuries of American prosperity and stability made possible by the rule of law.

The rule of law is the American answer to despotism and totalitarianism.

The targets of this nascent totalitarianism are somewhat unlikely ones: lawyers.

Lawyers don’t get much sympathy. But in those moments when you need to protect your life, liberty, or property, a lawyer is your shield, your advocate, your friend. Lawyers are important not only personally to individuals in crisis, but broadly to the rule of law, which is under attack in America by the very persons and institutions meant to uphold it.

The persecution now unfolding of two American lawyers, John Eastman and Jeff Clark, tells the tale. It presages trouble not just for lawyers but for the rule of law itself and all of us who live under the freedom and protection it provides.

Eastman, a prominent conservative constitutionalist academic, was retained by Donald Trump in late 2020 as a private lawyer. Clark served in the Department of Justice as an assistant attorney general in the Trump administration. In the wake of the election, they both worked to uncover and to remedy election illegalities in swing states that were so serious and potentially extensive that they may have affected the outcome in the Electoral College, causing it to erroneously elect Joe Biden rather than Donald Trump.

I’ve known John and Jeff for 37 and 28 years, respectively. Both have been prominent lawyers in the conservative legal world for decades. We three practiced law together at Kirkland & Ellis in the 1990s and early 2000s, along with a cast of attorneys who today — incredibly and ironically — figure prominently in the proceedings now under way in California, the District of Columbia, and Georgia to disbar Eastman and Clark from the practice of law and to prosecute them as criminals, along with President Trump.

A California court, after the most lengthy and expensive bar trial in our nation’s history, ruled late last month that Eastman should be disbarred. Last week, the bar trial of Clark began in the District of Columbia. These lawyers, both of whom were deservedly at the pinnacle of their profession, have been indicted as criminal conspirators, have been stripped of their jobs and their livelihoods, have been hauled from their homes by the FBI, have been handcuffed and forced to perform “perp walks,” and have had their homes vandalized and their wives and children harassed.

Not only that, but the Kafkaesque bureaucracy of their persecutors is peopled by former law partners, colleagues in Republican administrations, clients, friends, and even a co-clerk for Justice Thomas and a former federal judge for whom Eastman and my husband clerked and who had been a particular personal friend.

All these people know very well that neither Eastman nor Clark ever “denied” or tried to “overturn” the election. Neither of them ever misrepresented the facts or the law about the 2020 election. They did not lie or commit fraud and are not guilty of “moral turpitude,” as the bar court quaintly labels their offense of aggressively advocating the case that the election had serious problems.

A lawyer’s duty

Eastman and Clark did the same thing every other American lawyer worth his salt does every day: advocate zealously on behalf of their clients, based on the facts and the law. We did it all day, every day, at Kirkland & Ellis. Those who did it the best were rewarded with handsome bonuses and promotions, not disbarred and subjected to criminal prosecution.

The betrayal here is personal, yes: It bespeaks a world where loyalty and friendship have lost their meaning. But in a larger sense, the betrayal isn’t just of persons; it is of principle. That principle is the rule of law.

A new rule is forming: Don’t make any aggressive or creative argument for your client, particularly when the law is vague or untested. Save your own skin.

The rule of law means public decisions are to be made on the neutral application of the laws that the sovereigns — the people, in the American regime — have enacted. The rule of law was always what distinguished America from the norms in most times and places in history, where the law was created out of raw power and wielded by those who held it to suit their whims.

The rule of law, uniquely in America, was our chosen way to protect life, liberty, and property in this imperfect world. It is the American answer to despotism and totalitarianism.

Lawyers and judges, who litigate and resolve disputes under the rule of law, operate in the context of the “adversary system,” which is premised on the faith that when two sides disagree about what law provides, each side argues his case as vigorously as possible through his lawyer (his advocate and his friend), before a neutral judge.

The result — in theory, and in practice in the United States until quite recently, when “lawfare” (a deceptively milquetoast term) was unleashed against President Trump and his lawyers — is that truth will come to light and justice will prevail. There is nothing like the adversary system to test arguments, shine a light on unearthed facts, and pile up every fact and argument an advocate can think of on his client’s side of the scales of justice.

In law school, lawyers learn the basic precept embodied in Federal Rule of Civil Procedure 11: Lawyers are to advance arguments that are “warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law” and to make factual contentions that “have evidentiary support or … will likely have evidentiary support after reasonable opportunity for further investigation or discovery.”

When lawyers take on a client, they have a duty (it isn’t optional) to advocate zealously. It doesn’t matter whether the client is Donald Trump, Joe Biden, a serial killer, or the United States government. When lawyers fail to advocate vigorously for a client, until now, they were considered bad lawyers. It could even mean, if they were lazy, negligent, or concerned more with their own fortunes, that they had committed legal malpractice.

A dangerous new standard

But now, it seems, a new rule is forming: Don’t make any aggressive or creative argument for your client, particularly in an area where the law is vague or untested. Save your own skin. Avoid being criticized, losing, being disbarred, and going to jail. These are the objects.

What if the many lawyers who have argued for extensions of the law not yet on the books, for interpretations of the Constitution that had never been made, with arguments that were, to put it generously, “creative,” had been hauled from their homes by the FBI, disbarred, and criminally prosecuted?

What if the Eastman-Clark standard had applied to Thurgood Marshall, who argued for overturning decades of Supreme Court precedent in Brown v. Board of Education based on a few social science studies?

What if the Eastman-Clark standard had applied to attorney David Boies, who argued after the 2000 presidential election for a statewide recount in Florida using “the intent of the voter” as the absurd rule for counting unclear ballots, in the hope of wresting a victory for Al Gore over President-elect Bush? Boies would have let election boards impose their own will, credited ballots not cast legally and properly, disenfranchised legal voters, and undermined democracy. But Boies wasn’t disbarred, tarred and feathered as an “election denier,” or prosecuted as a criminal for trying, on behalf of Al Gore, to overturn an election with a lawless standard.

Neither did those things happen to Hillary Clinton and her lawyers who claimed she really won the 2016 election — or would have won if it weren’t for what she claimed was Russian collusion with Trump. Even when her hoax was exposed, neither she nor her lawyers paid any price.

There was never any evidence of Trump-Russia collusion, just like there was never any evidence that the Hunter Biden laptop was a Russian propaganda ploy, contrary to the claim of Joe Biden, Antony Blinken, and the 51 high-ranking intelligence officials who signed a letter saying there was.

The height of lawlessness

I will always remember Justice Clarence Thomas, for whom John Eastman and I both clerked, telling us: If you think you know how a case should come out, try flipping the parties around. To test what you think is the right outcome, see if you would think the same if the sides were reversed. Then you will know if you really are thinking impartially, based on the rule of law.

It’s a great test from a wise man. If we don’t heed it, the rule of law will vanish, and then citizens might start to notice. It will be too late.

When I testified as a character witness at Eastman’s bar trial, I told the judge about the way John has lived his life. Like Clark, it is not by lies. Both men are devout Catholics. They live their faith — not in the sense of imposing it on anyone else but in the sense that they personally abide by the Ten Commandments, the ninth of which is, “Thou shalt not bear false witness.”

I am certain that neither John nor Jeff thought that challenging the 2020 election was worth going to hell over.

I don’t think the judge appreciated my point. I don’t think she even understood it.

That became apparent when Eastman’s disbarment ruling came down on Wednesday of Holy Week, giving him just three days — the Easter triduum — to draft his response to it, while Clark and his lawyer spent their Easter weekend preparing the defense to his disbarment in the District of Columbia. And now that Eastman has been stripped of the ability to practice law, he has been deprived of the means to earn the money it will take to defend himself from the pending criminal charges.

But that’s just how totalitarianism and lawlessness work.

Editor’s note: A version of this article appeared originally at Chronicles.