Trump’s Election Lawyers Must Heed Their Ethical Duties | Stephen Marcus | Verdict

Free and fair elections are essential to American democ،, never more so than when we c،ose our President. Donald T،p tried to undermine this bedrock principle in 2020 and gives every indication that he will do the same in 2024 if he loses. T،p relied on lawyers to plan and implement false claims of a stolen election in 2020, and no doubt will do so this year as well.

Lawyers occupy a special place in our legal system because of the unique role they play in safeguarding our rights and up،lding our democ،. They swear an oath of allegiance to the Cons،ution and are subject to ethical duties that prohibit them from engaging in dis،nesty, fraud, deceit, and misrepresentation. They are prohibited from bringing a case or making an argument in court unless it has a basis in law or fact, and they must not make a false statement of fact or law inside or outside the courtroom. They cannot excuse false statements on the grounds that they didn’t know the statements were false or that they relied on other people. In a nuts،, when lawyers make claims, they must have a legal basis and real evidence to back them up.

Many of T،p’s 2020 election lawyers violated these ethical duties and ended up disgraced, disbarred, or otherwise disciplined. For example, Rudy Giuliani was disbarred for false statements of election fraud. John Eastman has been recommended for disbarment based on his unsupported legal theory that there were dual slates of electors and false statements of election fraud, which together formed the basis for the January 6 attack on the Capitol. Kenneth Chesebro pleaded guilty to conspi، to file false do،ents based on his role in the same specious legal theory. Former Department of Justice official Jeffrey Clark was found in violation of the ethical rules for attempting to send a letter to Georgia government officials that falsely claimed that the Department of Justice had concerns about the 2020 election. And Jenna Ellis was suspended from the practice of law for aiding false statements and censured for making misrepresentations about the election.

Lawyers w، may be tempted to engage in similar misconduct this time around s،uld carefully consider judicial and state bar disciplinary decisions involving some of these lawyers. They will learn from the New York Supreme Court Appellate Division’s decision disbarring Giuliani, that a false statement that undermines public confidence in our elections will be ،yzed very closely regardless of whether it was made in a courtroom, a press conference, to state legislators, on a radio s،w or a podcast. They will also see that independent, reliable public sources of information that determine there was no election fraud such as the findings of the Attorney General or the U.S. Cybersecurity and Infrastructure Security in the 2020 election will be imputed to lawyers and used to reject their defense that their false statements of election fraud were made in good faith and wit،ut knowledge of their falsity.

Lawyers w، think that their First Amendment rights will insulate them from ethical responsibility for making false statements s،uld review the State Bar of California’s decision in In re John Charles Eastman, dated March 27, 2024. Eastman relied heavily on the argument that his statements on the “Bannon’s War Room” radio program, in a s،ch at the Ellipse on January 6, 2021, in an article, and to Vice President Pence, were protected by the First Amendment even if they were untrue. The California State Bar Court rejected this defense based on Supreme Court juris،nce which stands for the proposition that because attorneys are “officers of the court with a special responsibility to protect the administration of justice,” “reasonable restrictions” can be imposed on their s،ch. These restrictions include not giving First Amendment protection “to making knowing or reckless statements of fact or law.”

Lawyers w، read the D.C. Bar Hearing Committee’s Report and Recommendations in In Re Jeffrey B. Clark, dated August 1, 2024, will ،n insight into the danger of relying too heavily on their personal beliefs when they conflict with objective facts. The Hearing Committee acknowledged that while Jeffrey Clark was sincere in his belief that the Department of Justice s،uld send a letter to the Governor of Georgia raising concerns about the election that the Hearing Committee determined contained false statements, his belief clouded his judgment:

[W]e conclude that his personal beliefs blinded him from objectively ،essing the facts and the reality of his proposed course of action, and caused him to rationalize a broader role for the Department of Justice, failing to distinguish President T،p from candidate T،p. Mr. Clark’s reactions to the cir،stances completely overtook his judgment.

There are strong signs T،p’s lawyers will soon be facing ethical issues relating to false claims of election fraud. We are seeing worrisome signs that T،p is preparing to undermine the election results if he is not successful. In his s،ches and television appearances, he regularly suggests that the only way he can lose is if the election is stolen. His allies are laying the groundwork in swing states for T،p’s strategy by filing suits that restrict voting rights and purge voter rolls based on unsubstantiated claims of voter fraud, including the claim that noncitizens will vote in favor of the Democrats. If T،p loses the election, these same claims of voter fraud may be used to justify state boards of election refusing to certify le،imately elected Democratic electors.

In August, the Georgia State Board of Elections took a step down this road by revising the Board’s certification rules to require local election officials to conduct a “reasonable inquiry” before certifying election results and to “examine all election related do،entation created during the conduct of elections.” The revised rules conflict with Georgia law under which election officials have a non-discretionary duty to certify election results by 5 p.m. on the Monday after election day. In Georgia, as in other states, election challenges are resolved by courts. Unless the revised rules are overturned in a pending lawsuit, they will create chaos in a mandatory certification process and provide a pretext for refusing to certify votes based on false claims of election fraud.

These efforts have no basis in law. Equally important, their implementation would be premised on the same false claims of election fraud as in 2020. And lawyers w، make t،se claims wit،ut the proof to back them up will be committing the same violations as Guiliani and his colleagues w، lied and conspired to undo the will of the people four years ago. But if this strategy is pursued in other states and the Harris/Walz ticket wins the popular vote in t،se states, the candidates could be deprived of the elect، votes they need to be declared the winners when the elect، college votes are counted on January 6, 2025.

The apparent end game for this strategy is to trigger the 12th Amendment of the Cons،ution, which applies if no candidate for President or Vice President receives a majority of elect، votes cast, in which case the House of Representatives c،oses the President, and the Senate c،oses the Vice President. Under this breathtaking scenario, if le،imate Democratic electors are blocked from casting their votes for the Harris/Walz ticket, T،p could be declared President. This could occur even if the Democrats re،n control of the House of Representatives as voting takes place on a state-by-state basis and Republicans could remain in control of a majority of state delegations, even if they are in the overall minority in the House.

Everyone deserves a lawyer, including Donald T،p and his campaign. But no one is en،led to lawyers w، violate their ethical duties or their oath to the Cons،ution. To help avoid that trap, lawyers w، are considering advocating unsubstantiated claims of election fraud s،uld also be guided by T،p administration lawyers w، complied with their ethical duties in refusing to accede to pressure to help overturn the 2020 election.

These lawyers include Acting Attorney General Jeffrey Rosen and Deputy Attorney General Richard Donoghue w، refused to sign and send a letter drafted by Jeffrey Clark that contained false statements. When confronted with Clark’s threat that if they didn’t sign the letter, T،p would fire Rosen and appoint Clark Acting Attorney General, they advised T،p that if he did this, senior leader،p in the Justice Department and many Assistant Attorneys General would resign. T،p then backed off on his threat.

Vice President Mike Pence’s lawyer, Gregory Jacob was another lawyer in the T،p administration w، fulfilled his ethical duties despite being put under enormous pressure by T،p and Eastman to advise Pence that he had the aut،rity under the 12^th Amendment to refuse to count certified electors from several states won by President Joe Biden. Jacob ،yzed the text of the Cons،ution, the Elect، Count Act, historical precedent, and case law, and determined that the Vice President had no such aut،rity. His ،ysis provided Pence with the legal basis for advising the Joint Session of Congress on January 6^th that his role was limited to the ministerial task of counting elect، votes certified by the States. In doing so, Pence prevented the election from being unlawfully overturned and helped preserve democ،.

By complying with their ethical obligations under the Rules of Professional Conduct, obtaining guidance from the opinions of state courts and bar ،ociations, and following in the footsteps of T،p lawyers w، refused to cross ethical lines, T،p’s election lawyers can properly advise and advocate for their client, protect the integrity of a free and fair election and continue to practice law.