The New York Times reports that partners and associates at some law firms are expressing their discomfort about some of their colleagues representing the (reluctantly) outgoing President of the United States:
Jones Day is the most prominent firm representing President Trump and the Republican Party as they prepare to wage a legal war challenging the results of the election. The work is intensifying concerns inside the firm about the propriety and wisdom of working for Mr. Trump, according to lawyers at the firm.
Doing business with Mr. Trump — with his history of inflammatory rhetoric, meritless lawsuits and refusal to pay what he owes — has long induced heartburn among lawyers, contractors, suppliers and lenders. But the concerns are taking on new urgency as the president seeks to raise doubts about the election results.
Some senior lawyers at Jones Day, one of the country’s largest law firms, are worried that it is advancing arguments that lack evidence and may be helping Mr. Trump and his allies undermine the integrity of American elections, according to interviews with nine partners and associates, who spoke on the condition of anonymity to protect their jobs.
At another large firm, Porter Wright Morris & Arthur, based in Columbus, Ohio, lawyers have held internal meetings to voice similar concerns about their firm’s election-related work for Mr. Trump and the Republican Party, according to people at the firm. At least one lawyer quit in protest.
[…]
Before the 2020 campaign, some partners at Jones Day said, they had to reassure clients that the firm’s representation of the Trump team would not influence the rest of the firm’s work, according to four partners. Lawyers at the firm have worked to promote gun control and have represented unaccompanied minors, including many detained by the federal government.
But partners generally swallowed their concerns about the close relationship with Mr. Trump.
Then the president and his allies, down in the polls, began fanning fears about voter fraud, part of a broader effort to sow doubts about the integrity of the election.
“Many of the GOP’s litigation concerns are meritorious in principle. But the president’s inflammatory language undercuts the claim that Republicans seek merely to uphold statutory safeguards needed to validate the results’ credibility,” Benjamin L. Ginsberg, a longtime Republican elections lawyer who left Jones Day in August, wrote in The Washington Post the following month.
The Lincoln Project, whose anti-Trump ads I’ve enjoyed tremendously, are taking aim at Jones Day for representing the Bad Man, and appear to have gone all-in on the premise that harassing individual lawyers is okay because democracy:
Attacking lawyers for representing unpopular clients is one of the oldest tricks in the demagogue’s playbook. Republicans went after Hillary Clinton for her representation of a sexual assault defendant. Even here in Canada, a Conservative Party candidate (himself a lawyer, no less) attacked NDP leader Jagmeet Singh for “keeping criminals out of jail.”
And as a lawyer myself, I take this kind of thing personally - even when it’s a giant corporate law firm being attacked for representing a politician I despise.
One of the foundations of our legal system is that anyone with a case to make should have the opportunity to do so. This doesn’t mean every lawyer is obliged to take on every client who comes his or her way, but if a law firm is to be blackballed and shamed, and its lawyers harassed, because of who they represent - not because they’re making specious legal arguments, but just the very fact of taking on a controversial client - that is frankly dangerous and undemocratic.
And in response to the obvious counter-argument - that there’s a fundamental difference between representing a defendant in a criminal matter and a litigant in a civil matter - sorry, I don’t agree. If people believe their rights are being violated by the government, or if the state is not following the constitution or its own laws, a civil proceeding is sometimes the only way to get the matter before the courts. Whether it has any merit is for the courts to decide, not some easily-outraged randos on social media.
(In any event, I expect The Lincoln Project to extend its harassment campaign against Trump’s criminal lawyers if/when he is indicted. It’s a war, you know!)
For a group that named itself after Abraham Lincoln, you’d think they’d know about his 1838 Lyceum Address:
I hope I am over wary; but if I am not, there is, even now, something of ill-omen, amongst us. I mean the increasing disregard for law which pervades the country; the growing disposition to substitute the wild and furious passions, in lieu of the sober judgment of Courts; and the worse than savage mobs, for the executive ministers of justice. This disposition is awfully fearful in any community; and that it now exists in ours, though grating to our feelings to admit, it would be a violation of truth, and an insult to our intelligence, to deny.
One of my biggest fears during the Trump era was that his own illiberalism, disregard for norms, bullying and harassment would become the norm for every side even after he’s defeated. And I see it coming true already.
Now that I’ve said all that, Jones Day and other large law firms representing Trump are should by no means be free from criticism at all. A lawyer’s duty is not just to represent the client, but also to give the client full and frank advice about whether their case has any merit and whether their instructions are reasonable. We aren’t “mouthpieces” but officers of the courts who have to make sure our representation is not throwing the justice system into disrepute.
I do not believe all of Trump’s legal arguments are per se unreasonable. I don’t think they’ll work, but as Benjamin Ginsburg notes in the Times story quoted above, some of them may have an air of reality to them. If Trump’s legal team wishes to put these before the courts, I say good luck (though not too much good luck) to them. If they’re thrown out, no harm done. If anything, Team Trump bring smacked down by the courts, over and over again, should ultimately confirm that he lost fair and square.
If they’re going to put forward legal arguments that they know have absolutely no chance of success but are just meant to assuage their sad, deeply sensitive and easily hurt client, and especially if they go on Fox News and OANN to publicly promote arguments they know to be completely false and without merit, then I agree that these lawyers shouldn’t escape consequences - though I don’t think these consequences should include spamming second-year associates on LinkedIn. From what I’ve seen so far it’s the real hangers-on and shills, like a certain once-great mayor of New York City, who’ve been doing this, not the biglaw heavy hitters.
Meanwhile, for Jones Day’s sake, I hope they got paid up front.
There is an increasing tendency to attempt to control others by harassment, rudeness, disinformation, and violence. These methods cannot be allowed to work, or everyone’s basic right to make their case in potentially any area of life - no matter how minor or major - will be affected. Just as we should not allow university students to smash things because they don’t like a speaker intending to talk about their group (Antifa, UBC), we must not allow online harassment of lawyers for accepting a particular client. In both cases, means of making people feel threatened or coerced are being used as a replacement for reasoning and reason-based discourse. Allowing this behaviour effectively condones and therefore spreads it. If this is allowed to continue, when does it get to the point at which we cannot even *talk* about the need to act reasonably?