By Greg Sargent
Columnist |
January 5, 2023 at 7:30 a.m. EST
John Eastman, left, and Rudy Giuliani during a rally for supporters of President Donald Trump on the Ellipse on Jan. 6, 2021. (Jim Bourg/Reuters)
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You are probably familiar with the term “mob lawyer.” It might now be time to inaugurate another, similar term: “coup lawyer.”
John Eastman and Rudy Giuliani were instrumental to the plotting and execution of President Donald Trump’s attempt to overthrow his reelection loss, and they corruptly abused their knowledge of the law to that end. Will they ever face real accountability?
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Eastman and Giuliani are facing disciplinary proceedings and might even get disbarred. But if they are disciplined on overly narrow grounds — say, for making false statements — it would be a highly insufficient outcome. They should also face professional discipline that declares in some way that their efforts to undermine our constitutional order were central features of their unscrupulous professional misconduct.
Yet good-government advocates are beginning to fear that opportunity will be squandered.
Right now, the state bar in California — where Eastman is licensed — is investigating whether he violated ethics rules governing attorneys. And the bars in New York and D.C. — where Giuliani is licensed — are currently weighing the former New York City mayor’s fate.
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In Giuliani’s case, a New York court temporarily suspended him from practicing law for making false statements in court — his lies about the 2020 election — and the D.C. bar appears focused on that charge as well. In Eastman’s case, it is unclear what misconduct the California bar is weighing.
But the option exists for disbarment on a broader basis, according to advocates urging this course of action. In California, New York and D.C., ethics rules provide for sanctions on the grounds of fundamental unfitness for the legal profession and deep contempt for the rule of law. Disbarment decisions should cite both lawyers’ efforts to help Trump subvert democracy as the basis for those violations.
“It’s important that any bar discipline encompasses the full range of that activity,” ethics expert Norman Eisen told me. “This was an attempted coup, not using soldiers but using lawyers. We have not seen anything like this by attorneys in American history. The bar discipline needs to be equally extensive.”
Eastman’s full range of misconduct was laid bare by the House select committee’s final report on the Jan. 6, 2021, insurrection. He helped hatch a scheme for Trump’s vice president to subvert the electoral count in Congress, knowing it was unlawful. He pushed for the appointment of sham electors from states Trump lost.
Eastman’s plotting with Trump led one White House lawyer to explode that Eastman was “out of your effing mind.” And a federal judge described those efforts as “a coup in search of a legal theory.”
As for Giuliani, the select committee demonstrated that he didn’t merely lie relentlessly in court to subvert a lawful election outcome, but he also pressured state officials to appoint sham electors for Trump on the basis of fake “theories” of fraud. He pressed Republicans in Congress to stop the electoral count to let that scheme unfold.
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The complication is that lawyers are expected to vigorously advocate for their clients. And it’s not always easy to determine where aggressive advocacy crosses into bad faith and deliberate abuse that violate the rules of the profession. Think of it this way: A good deal of what is popularly called “mob lawyering” appears morally reprehensible to many of us, but few experts would say lawyers should lose their licenses over it.
But in this case, Eastman and Giuliani arguably did much more than aggressively interpret the law to allow their client — Trump — to avail himself of all options open to him. They manipulated the law in service of a plot to subvert the foundations of our legal order and constitutional democracy.
Ian Bassin, the executive director of Protect Democracy, argues that this level of abuse demands multiple forms of accountability. The dishonesty of Eastman and Giuliani are grounds for discipline, Bassin argues, but the subversion of the rule of law requires its own form of accountability.
“The law is the system by which we have a constitutional order,” Bassin told me, noting that they should face sanctions for the express act of “using their law license to undermine that very system.”
Michael Teter, managing director of the bipartisan watchdog group the 65 Project, notes that the professional standards of conduct provide for such an outcome. “The rules in these states are designed to protect the integrity of the legal system and the rule of law,” Teter told me. “Lawyers who jeopardize the system itself are subject to discipline on those grounds.”
The select committee on the insurrection recommended that Eastman face criminal prosecution for obstruction of the official electoral count in Congress. It’s anybody’s guess whether the Justice Department will see that as valid or appropriate; the standard of proof for criminality is very high, and appropriately so.
Coup lawyering presents a novel set of questions, because we haven’t seen anything quite like it before. Can our system impose accountability for naked and deliberate subversion from within, in cases where explicit lawbreaking is not easy to prove?
If the misconduct of Eastman and Giuliani is deemed professionally disqualifying on those broad grounds, it would constitute a step in that direction.
