Why the Justice Department must prosecute the lawyers who conspired with Donald Trump

The legal field is in need of serious redemption

Published August 11, 2023 9:00AM (EDT)

Donald Trump | The US Capitol Riot on January 6, 2021 (Photo illustration by Salon/Getty Images)
Donald Trump | The US Capitol Riot on January 6, 2021 (Photo illustration by Salon/Getty Images)

If Shakespeare had been born Jack Smith, then perhaps in "Henry VI, Part 2," the character Dick the Butcher would not have said, "First, let's kill all the lawyers," but rather, "First, let's name them all unindicted co-conspirators."

Smith's Aug. 1 indictment of Donald Trump lists six – six! — co-conspirators, and all have been identified as attorneys. This is a dark stain on the profession, but it should not completely blot out the light.

Two sides of the story of lawyers and American democracy have long co-existed. 

On one side, lawyers have the same vulnerabilities as any other citizen. As Alexis de Tocqueville, the unrivaled chronicler of 19th-century America, observed, "like most other men," lawyers "are governed by their private interests, and especially by the interests of the moment." But Tocqueville also recognized another side of the story. Indeed, he was more emphatic in noting the indispensable role that lawyers could, and he hoped would, play in the American story. 

"Men," he wrote, "who have made a special study of the laws derive from this occupation certain habits of order ." Tocqueville said that "When the American people are intoxicated by passion or carried away by the impetuosity of their ideas,"they are checked and stopped by the almost invisible influence of their legal counselors."

History has proved him right in both his worries about, and his hopes for, the legal profession. Lawyers have often been a bulwark of the American constitutional system. But when they, of all people, give in to "the interests of the moment" and betray that system, the wound is a deep one. 

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Americans learned this lesson during Nixon's Watergate scandal when lawyers aided and abetted the disgraced 37th president's crimes. As John Dean, Nixon's former White House counsel, once said, "I prepared a list of who was likely to be indicted. ... I put a little asterisk beside each lawyer, which was Mitchell, Strachan, Ehrlichman, Dean, Mardian, O'Brien, Parkinson, Colson, Bittman, and Kalmbach."

"[H]ow in God's name could so many lawyers get involved in something like this?"

Dean's fear that many of the lawyers who aided Nixon would be indicted proved to be well founded. Indictments of those people were brought by special prosecutors Archibald Cox and Leon Jaworski and their staffs, who, in Tocqueville's words, "valued legality" and vindicated it.

Lawyers have often been a bulwark of the American constitutional system. But when they, of all people, give in to "the interests of the moment" and betray that system, the wound is a deep one.

Sadly, it seems like déjà vu all over again as the nefarious role of lawyers in Trump's Big Lie campaign leaps from the pages of the Washington, D.C., grand jury's Aug. 1 indictment of the former president. Yet for good reason, the indictment did not charge the co-conspiring lawyers: to speed the trial of the alleged kingpin, Donald Trump. Indicting and trying the others as co-defendants with Trump would have complicated the trial, slowing a slugfest to a snail's pace.

But the unindicted conspirators are smart enough to see that their days in the docket are just over the horizon. For now, being named as participants in the alleged crimes is sure to have those six lawyers in a kind of mental purgatory.

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And we already have a good idea of what they will say when their indictment day comes. On Aug. 2, Harvey Silverglate, the lawyer for John Eastman, one of Trump's unindicted counsels, wrote that Eastman had "acted in the highest traditions of the legal profession to advise his client, even if some of his theories were at the very boundary of the law."

Eastman far exceeded the boundary of lawfulness, ignoring his lawyer's oath to support the Constitution. He did so when he wrote two memos claiming that Vice President Mike Pence, as presiding officer of the joint session of Congress, was "the ultimate arbiter" in deciding whether to accept or reject presidential electors' votes. 

Indeed, in March 2022, federal district court Judge David Carter found it more likely than not that Eastman had gone beyond merely offering legal advice and moved into a conspiracy with Trump to obstruct congressional proceedings. 

It both helps redeem the legal profession and is a rule of law nation's necessary antidote to ensure that other attorneys stay on the path of integrity.

Constitutional scholar Steve Vladeck has explained specifically why any claim that Eastman's advice was lawful will not pass muster. Under the 12th Amendment, Vladeck has emphasized, "There's no discretion on [the vice president's] part, nor has any Vice President previously claimed the power to reject any properly formatted certificates." 

Inside the White House on Jan. 4, 2021, Eastman himself admitted, according to testimony given by Pence lawyer Greg Jacob to the House Jan. 6 committee, "we would lose 9-nothing" in the Supreme Court.

The unlawful and unethical schemes in which other unindicted conspirators allegedly participated could put them in the same boat as Eastman. For example, co-conspirator No. 5 (identified as attorney Kenneth Chesebro) wrote an email to Eastman proposing that Supreme Court Justice Clarence Thomas declare the Georgia election in doubt. Co-conspirators No. 1 (identified as Rudy Giuliani) and No. 6 (identified as Boris Epshteyn) were reportedly allies in running the Trump campaign's fake elector campaign in seven states. 

Here again, if a member of the bar encourages others to sign fraudulent electoral certificates claiming to be official, they are not acting as a lawyer but someone who is, as Tocqueville said, "governed by their private interests." Because the conspiring attorneys' wanted to curry favor with Donald Trump, they apparently became aiders and abettors of crime — subverting, not protecting, the constitutional order.

In parallel today, for the lawyers now in Trump's orbit, trouble almost certainly lies ahead. His legal team, according to the New York Times, "is marked by a tangled web of potential conflicts and overlapping interests."

Jack Smith's classified document and obstruction of justice case that is unfolding in Florida federal court has highlighted those conflicts in a motion questioning lawyer Stanley Woodward's representation of Trump co-defendant Walt Nauta and at least seven other witnesses in the case. Woodward previously represented Yuscil Taveras, who is expected to be the key witness against Nauta.

In the short run, Woodward may not be disqualified from representing Nauta. Trump's valet is free to state that he understands the potential conflicts and wants Woodward to stay on as his lawyer. After all, Trump's Save America super PAC is reportedly paying Woodward's fees. But should convictions later occur, clients can change their mind and attack their lawyer's representation: "Oops, when I waived the conflict there was something the lawyer failed to tell me."

That is among many reasons behind a recent Boston Globe headline: "The most dangerous job for lawyers is being on Trump's legal team."

For the rest of us, Trump has taken a blowtorch to Americans' faith in elections, and he's now aiming it at "anyone who goes after me," including the legal system and the legal profession itself. 

This brings us back to the primary reasons why the Aug. 1 indictment matters. It is a striking reminder that on one side of Tocqueville's two stories lies skilled and vigilant lawyering in pursuit of accountability. It both helps to redeem the legal profession and is a rule-of-law nation's necessary antidote to ensure that other attorneys stay on the path of integrity. 

The lawyers in the special counsel's office are not alone in vindicating Tocqueville's hope. Attorneys from nonpartisan groups like Lawyers Defending American Democracy (with which co-author Aftergut is affiliated), the States United Democracy Center and the 65 Project have also done a real service to the legal profession and the country as a whole by initiating professional accountability via disciplinary complaints naming most, if not all, of the D.C. grand jury's unindicted conspirators.

Stay tuned. Criminal accountability is soon to follow.

By Austin Sarat

Austin Sarat is William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. His most recent book is "Lethal Injection and the False Promise of Humane Execution." His opinion articles have appeared in USA Today, Slate, the Guardian, the Washington Post and elsewhere.

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By Dennis Aftergut

Dennis Aftergut, a former federal prosecutor, is currently of counsel to Lawyers Defending American Democracy.

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