21st February 2024

The indictment of Donald J. Trump filed by special counsel Jack Smith on Tuesday is remarkable in too many ways to count. As Richard Hasen has argued, it may be the most important prosecution for American democracy that the nation has ever seen. And its outcome will inform not just the 2024 election but also the likelihood that future elections will result in the orderly, peaceful transfer of power.

It is for this reason that the singular role of lawyers in this particular indictment should not go unremarked on. All six (apparently unindicted) co-conspirators who are unnamed in the document appear to be attorneys. Several have been subject to state investigations or disciplinary actions for misconduct and misrepresentations around the 2020 election. And some of the most damning lines in the indictment come from other attorneys in Trump’s orbit who steadfastly stood up for the rule of law in the midst of the conspiracy, up to and including the Jan. 6 insurrection. One of the most chilling details of the indictment is an allegation that top Justice Department official Jeffrey Clark would have deployed the military to quell protests against Trump’s coup. After White House deputy counsel Patrick Philbin told Clark, “There is no option in which you do not leave the White House on Jan. 20,” Clark allegedly responded: “Well … that’s why there’s an Insurrection Act”—a law that would let Trump activate the armed forces against American citizens to achieve his seizure of power.

For those who have been writing and thinking about the role of lawyers in the Trump years, this exchange is emblematic of how deeply corroded the practice of law and the profession have become. A group of attorneys grew so besotted with Trump and Trumpism that they were willing to work against the law—to break the law—in order to produce false documents, make unsubstantiated public claims, file meritless litigation, and suborn perjury, all in a desperate bid to keep Trump in power. What makes Tuesday’s indictment so remarkable is that it represents a kind of red line for the practice of law itself: a still life in what can and cannot be allowable for a practicing attorney, even in a robust marketplace of radical political speech and ideas, and even in service of a client who refuses to comprehend that the rule of law constrains the president as much as, if not more than, it enables him.

Earlier this year, professors Robert Tsai and Mary Ziegler posited a difference between regular conservative judges (think Chief Justice John Roberts) and “movement judges” (think District Judge Matthew Kacsmaryk). A movement judge will ruthlessly pursue ideological and partisan goals at the expense of reason and restraint. That disparity maps perfectly onto the differential that emerges in the lawyers who surrounded Trump in the lead-up to the Jan. 6 insurrection. Many of the lawyers who are not implicated in the indictment—including those in Trump’s own White House and Justice Department—are dyed-in-the-wool conservatives who believe wholeheartedly in the movement’s goals and objectives, yet balked at the proposition of a straight-up coup. Former Attorney General Bill Barr, Vice President Mike Pence, and former White House counsel Don McGahn fall into that category. The lawyers who star prominently in the indictment fall into another camp: those willing to break democracy for Trump and Trumpism. Those are the unnamed but publicly identified co-conspirators: John Eastman, Clark, Sidney Powell, Kenneth Chesebro, Boris Epshteyn (reportedly), and Rudy Giuliani. It’s also the crew of lawyers who signed their names to the flurry of bogus complaints attempting to overturn the election by nullifying millions of votes and legitimizing fake electors—people like Harry MacDougald, Emily P. Newman, Julia Z. Haller, Lin Wood, and Howard Kleinhendler.

Pay attention, because that will be the cohort that determines the future of American democracy. We need to name that camp and understand it, because the right flank of the legal profession has adamantly refused to police itself, and the legal profession as a whole has hardly raced to hold its most destructive and dangerous members to account. Leading players in the Jan. 6 indictment, including Eastman and Clark, were once luminaries of the Federalist Society, a network of conservative lawyers who hoist one another into positions of power. Yet the Federalist Society has consistently refused to denounce their complicity, or revoke their membership, or even condemn the coup itself. Instead, the conservative legal movement has welcomed these men—who have expressed no remorse for their actions—back into the fold. Lawyers on the right appear uninterested in exploring how colleagues who were once deemed most likely to succeed have overnight become most likely to be indicted. Might it be a problem that the movement’s pipeline produced lawyers who fought to prevent the peaceful transfer of power? Might it be a timely exercise in self-scrutiny to try to understand how that transpired?

Anyone who was shocked by the details of Smith’s latest indictment might also be surprised to learn just how much worse it could have been—because rogue lawyers, including movement judges, just barely lost a series of pivotal battles. The Wisconsin Supreme Court, for example, came one vote away from nullifying thousands of ballots, thus overturning Joe Biden’s victory in the state and setting the stage for the Legislature to assign fake electors to Trump. It failed only because a single member of the conservative majority, Justice Brian Hagedorn, refused to go along with his hard-right Trumpist colleagues. We are lucky that Hagedorn was principled enough to reject this plot under immense pressure and criticism from his own party. But the fate of free and fair elections should not rely on sheer luck. (Wisconsin voters this spring elevated the liberal Justice Janet Protasiewicz to their state Supreme Court, sending a signal that they generally prefer jurists who do not facilitate coups; Protasiewicz was sworn in on Tuesday, shortly before the indictment was unsealed.)

And if you are tempted to read Smith’s indictment as proof that the era of election suppression and democracy subversion is well and truly behind us, consider moves taking place right now, from efforts to unseat democratically elected officials in Tennessee, to ending majority rule for ballot initiatives in Ohio, to Alabama’s refusal to enact racially representative maps as required by the Supreme Court. The line between antidemocratic lawyers and movement lawyers as demarcated in the Trump indictment grows blurrier by the day as lawyers who claim to be Republicans work to undermine the popular vote. The indictment serves as a template for a growing divide between movement conservatives and MAGA lawyers, yes, but also between lawyers who respect the basic ethical rules of their profession and those who think rules are for suckers. The six attorneys who stand as unindicted co-conspirators are avatars for lawyers across the country who see it as their task to push democracy past the breaking point, and then beyond that, while claiming that they are merely practicing law.

In a few weeks, a new class of students will begin law school. These 1Ls will be taught, at orientation, to conduct themselves honorably in the legal profession—then taught how to manipulate the legal system to enrich and empower their clients. These 1Ls need only glance at the news to see that there is a deep sickness in their profession, an obsession with pretending that evil deeds are not evil when done in the service of a paying customer. They will see that they are learning many of the same skills that Trump’s lawyers repurposed to sabotage an election and subvert the law. They will see that, even now, only a tiny fraction of the lawyers involved in the insurrection have faced meaningful consequences. And they will have to choose which path aligns best with their ambitions. Smith’s indictment serves as the rare reminder that one of those paths leads to criminal corruption.


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