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When Lawyers Attack the Rule of Law


Scott Cummings is Robert Henigson Professor of Legal Ethics at the UCLA School of Law. He is author of Lawyers & Movements: Legal Mobilization in Transformative Times.

In recent years, scholars have focused significant attention on the fading fortunes of democracy around the world. This decline has occurred at the hands of new legal autocrats who dismantle democracy not through violent coups but rather through ostensibly legal actions—like changing the rules of judicial selection and elections—that undermine institutional checks on executive power. Yet while this literature helpfully spotlights law as an essential tool of democratic backsliding, it has largely ignored the actors who wield this tool: lawyers. This is a significant omission since, as the Stop the Steal campaign to overturn the 2020 U.S. presidential election revealed, lawyers serve as crucial gatekeepers to legal institutions targeted by autocrats (like courts and the attorney general’s office) and are necessary to design and execute legal plans to circumvent constitutional requirements (like election certification and the peaceful transition of power). Precisely because lawyers are guardians of the legal legitimacy upon which autocratic legalism depends, the profession is a critical arena of democratic struggle that merits special attention.

In this essay, based on a newly published article, I examine the professional paradox at the center of democratic backsliding: why and how lawyers attack the rule of law. In doing so, I draw attention to the conditions in which professional networks are mobilized by illiberal movements and the legal strategies deployed by lawyers against rule-of-law constraints in moments of democratic crisis—using the 2020 election as a case study. I argue that understanding the underlying political economy of backsliding and the lawyerly tools used to effectuate it points toward regulatory and educational changes that could help build professional resilience in this dangerous political time.

How Autocratization Threatens Professional Independence

Rule-of-law attacks like Stop the Steal do not occur in a vacuum. They are manifestations of a deeper democratic malaise. That malaise is a product of structural forces that occur over long time horizons and affect the profession, reshaping lawyer norms and practices in ways that can create conditions of possibility for rule of law attacks to occur.

One such norm, central to the rule of the law, is professional independence. Because lawyers control access to legal institutions, they serve the critical role of screening legitimate legal claims. Public lawyers—prosecutors and government legal advisors—have special obligations in this regard, guaranteeing that when legal decisions have a policy impact, they are made in the public interest and not for partisan advantage.

Professional independence is targeted by autocrats, who seek to enlist lawyers in support of maneuvers to unshackle them from rule-of-law constraints. Inside government legal institutions, autocrats do this by pitting political loyalists against legal institutionalists, blurring the boundary between public lawyers and movement lawyers. While top government jobs have always been political, autocrats seek to make them purely political through attacks on traditional pipelines supplying legal talent. This was evident in the increasingly vigorous election attacks by Trump, who famously clashed with his first Attorney General, Jeff Sessions, for authorizing the Mueller investigation into Russian election interference in the 2016 campaign and railed against AG William Barr (who defended Trump against the Mueller report) for refusing to endorse spurious claims of election fraud in 2020. When Barr resigned, Trump recruited little-known DOJ attorney Jeffrey Clark, a Federalist Society member and former Kirkland & Ellis lawyer, then serving as assistant AG for the Environment and Natural Resources Division, to send an official DOJ letter falsely identifying election fraud. This effort was narrowly defeated by top DOJ and White House lawyers—mainstream conservatives who are now being sidelined in planning for a potential second Trump administration, led by Clark, who has drafted an analysis titled, “The U.S. Justice Department Is Not Independent.”

In addition to internal institutional subversion, autocrats also challenge government lawyer independence from the outside. A quirk of American democracy is that a president can maneuver around government lawyers—in the DOJ and Office of White House Counsel—selected to provide independent advice in the national interest by hiring private outside counsel to represent the president in his “personal” capacity, even when it blurs into official acts. As the 2020 case revealed, such outside lawyers may end up advising the president on key official decisions, as Rudy Guiliani did in guiding frivolous litigation challenging election results in battleground states, and John Eastman did in advising how to thwart Electoral College certification.

The litigation campaign also mobilized nonelite lawyers to transgress professional independence by filing questionable election lawsuits. Some—like business litigator Ian Northon from Grand Rapids, Michigan, whose case alleging official “malfeasance” in Detroit vote counting was voluntarily dismissed for lack of evidence—had practices outside of liberal urban centers and little or no election experience. Others—like Indiana-based conservative movement lawyer James Bopp, Jr., responsible for four voting fraud cases—appeared willing to assert dubious election claims (his cases were also voluntarily dismissed) in a show of solidarity to advance long-held policy goals (Bopp was a mastermind of the strategy to overturn Roe v. Wade). Still other lawyers appeared to bring bogus cases to burnish their political bona fides in pursuit of other career goals like running for public office. This seems to have been the case with Alex Kolodin, the now-sanctioned Arizona attorney who, after filing suits alleging voting machine problems (including the Kraken lawsuit with Sidney Powell), successfully rode Trump’s endorsement to the Arizona state house. As these cases suggests, legal attacks on the rule of law may depend on the recruitment of nonelite lawyers less concerned about the negative economic fallout associated with polarizing (and ethically dubious) cases, who see upside potential in alliance with illiberal movements.

How Lawyers Mobilize Law Against the Rule of Law

These lawsuits were part of a coordinated legal and media campaign, beginning before the 2020 election and increasing in intensity after, to promote a “cycle of distrust,” designed to undermine faith in the outcome and provoke a constitutional crisis to justify Trump’s staying in power despite losing. This cycle progressed through six stages:

(1) The 2020 election challenge built on a long-term Republican project, launched after the contested 2000 Bush-Gore election, to legitimize the notion of widespread voter fraud to justify a range of state voting laws that suppressed Democratic voter turnout. Pre-election legal challenges in 2020 tapped into this existing voting fraud narrative—laying a foundation for later litigation that cultivated conspiracy claims of election fraud from kernels of truthful concerns about election security.

(2) A critical piece of pre-election strategy was to mobilize a larger coalition of the conservative bar, under the banner of Lawyers for Trump, prepared to challenge the results of the election, while recruiting high-profile legal influencers credible among conservatives, like Rudy Giuliani, willing to enter the public sphere to disseminate information about lawsuits and raise dubious concerns about voting security.

(3) After the election, Lawyers for Trump weaponized election distrust by flooding courts in battleground states with cases that mixed legitimate and false claims to buy time and confuse the public. Although some individual cases immediately after the election raised legitimate claims of improper voting rules and ballot processing, lawsuits grew increasingly implausible as mainstream lawyers exited the scene. The suits painted a picture of a shadowy conspiracy to steal the election funded by powerful elites and implemented through illicit counting of fake votes by workers at secretive polling centers or hacked computer systems.

(4) This picture was reinforced through a media strategy that blurred the line between fact and fiction, cycling conspiracy claims through legal briefs and from legal briefs into the media sphere as confirmation of the very conspiracies upon which the briefs relied. While the claims failed on the merits, they succeeded in mixing enough fact with fiction that the fiction itself took on an aura of fact—or at least muddied the factual waters enough to obfuscate the truth.

(5) As legal cases failed, the campaign developed an alternative plan to organize fake slates of Trump electors in battleground states to be presented in lieu of legal Biden electors on January 6. To advance this plan, lawyers Ken Chesebro and John Eastman conducted legal research and drafted legal memoranda outlining steps for alternative electors to claim legal legitimacy and justifying the vice president’s authority to refuse certification.

(6) Because the elector plan relied on keeping alive the myth of a contested election, Eastman and other lawyers filed new lawsuits based on already-rejected claims of fraud. It is during this stage that Trump sought to coopt the DOJ by convincing leadership to legally endorse fraud claims that had been discredited in every other venue but that were essential underpinnings of the fake elector scheme.

In the end, the scheme was foiled by the decisions of judges to systematically reject the campaign’s post-election challenges and of some lawyers within the Trump administration who performed their gatekeeping roles under enormous pressure. It was a democratic “near miss”—but one that has galvanized more vigorous attacks, in which the legal tactics honed in Stop the Steal are being redeployed in Trump’s new run for power.

To effectively respond to those tactics requires understanding what they were designed to achieve. A key takeaway from this analysis of Stop the Steal is that it did not reject law but rather sought to mobilize its symbolic power to shape public opinion by disseminating the false narrative that the legal system was not working, stymied by corrupt voting officials and judges, and could only be redeemed by authorizing Trump to override the flawed legal system in the national interest. The campaign, in short, made the case that it was on the side of legality. To make this case credible, it was essential to have lawyers as active conspirators willing to produce facially legitimate legal work product—briefs, opinions, and forms—that asserted illegitimate challenges to legal rules securing presidential elections and ensuring that losing candidates accept the results.

How to Strengthen Professional Resilience

In defense of their actions during the 2020 election, Trump lawyers have invoked the advocacy excuse. So far, this excuse has mostly failed. Bar disciplinary cases have advanced against key Trump lawyers, resulting in the recommended disbarment of Eastman in California and Rudy Giuliani in DC (Giuliani is also suspended in New York). Yet while these disciplinary cases are crucial for accountability and deterrence, they have also highlighted the need for proactive reform.

The slow-moving system of ethics prosecution, which can take years to conclude, is ill suited to the fast-paced demands of real-time election attacks, which threaten imminent democratic harm. While the bar alone cannot stop concerted attacks, it could, as an emergency measure, provide immediate injunctive relief, akin to a temporary restraining order (TRO), ordering suspension in cases where there is substantial evidence that a lawyer is engaged in conduct that threatens the integrity of an election or imposes other serious democratic harm.

Such tools could be buttressed by changes to ethical rules. Toward this end, the American Bar Association—which promulgates the Model Rules of Professional Conduct that all state bars generally follow—could exercise leadership to strengthen lawyers’ duty to investigate and authenticate the veracity of assertions made in legal proceedings and in the public domain. The bar could further make clear that when private lawyers, like Giuliani, are retained as outside counsel to public officials, performing functions analogous to government counsel, they should meet the higher public interest standards of government lawyer representation—negating the advocacy excuse. Finally, the ABA should seize the moment to give lawyers’ commitment to democracy more bite by elevating democratic responsibility to the status of an enforceable formal rule (not an aspirational ideal in the preamble) that requires affirmative conduct by lawyers to protect core democratic institutions—free elections and prosecutorial independence—such that interference with their functions would subject a lawyer to discipline. 

While bar reform can help, a key lesson from 2020 is that democratic resilience depends on coordinated efforts by legal actors across multiple points of vulnerability, which includes courts exercising a more proactive gatekeeping role by rigorously screening lawyers in election cases (there were forty-three instances of unlicensed lawyers admitted to court in the most extreme 2020 election cases), civil society organizations continuing to monitor and publicize lawyer involvement in election attacks, and private litigants challenging lawyer defamation (like the Georgia poll workers who forced Giuliani to rescind false and racist statements of their fraudulent conduct), which may prove to have the most significant deterrent effects.

Law schools must also take a leadership role in training future lawyers to be effective democratic citizens. Commentators have rightfully argued that Trump lawyering is a symptom of a broader disease that the profession incubates: an ideology that allows lawyers to pretend “evil deeds are not evil when done in the service of a paying customer.”

To address the root causes of the disease requires law schools to attend to lawyers’ democratic responsibilities not as a niche topic but as a core part of the curriculum supported at the highest levels of institutional leadership. Especially given the threat to truthful discourse highlighted by the Stop the Steal campaign, it is critical that legal educators reinforce and expand their commitment to training lawyers to produce rigorous, fact-based argument in an ecosystem of disinformation. It is also essential that schools stop treating professional responsibility as siloed, stand-alone course, but rather take this opportunity to finally create a culture in which ethics is taught throughout the curriculum, and the connection between individual ethics and public values is a central part of legal education.

American democracy has always been deeply flawed. But there are better versions of democracy worth struggling to achieve and in that struggle, lawyers have essential roles to play. An enduring lesson of the Trump election attack is that, in times of democratic peril, legal ethics matter on the margins—and that the margins matter.