Why Attacks On Trump's Election Lawyers Are Problematic

Law360 (November 13, 2020, 7:28 PM EST) --
Pierce O'Donnell
Pierce O'Donnell
Every American should be deeply troubled by the ongoing campaign to pressure two law firms representing President Donald Trump in his voter fraud cases to dump their client.

The Lincoln Project — the Republicans who waged a withering campaign against the president's reelection — has vowed to spend $500,000 to turn its howitzers on Jones Day and Porter Wright Morris & Arthur LLP.[1] The political action committee is urging people to contact attorneys at the two establishment law firms and "ask them how they can work for an organization trying to overthrow the will of the American people."[2]

Promising a multiplatform campaign through television and digital ads and social media, the group's co-founder, Rick Wilson, stated that the Lincoln Project will "bring a light" on "[t]hese people [who] have now decided that attempting to undermine the outcome of a just and fair election is perfectly acceptable for their legal practices."[3] 

The "dump Trump" movement also is urging clients of the law firms to pressure them to drop their lawyers and the Lincoln Project is following suit.[4] Even lawyers inside the firms have been questioning the propriety of this engagement.[5]

A law student boycott movement has been launched at Harvard Law School.[6] Its goal is to block the pipeline of top graduates taking lucrative jobs at Jones Day. This 125-year-old powerhouse law firm — representing over half of the Fortune 500 companies — ranks 14th in the world with over $2 billion in revenues and more than 2,500 attorneys in 40-plus offices around the globe.

This public, sophisticated media war against lawyers for their representation of an unpopular client may be unprecedented in the annals of American jurisprudence.

In the past, we have witnessed attacks on lawyers for defending communists charged with conspiracy to harm the U.S., the Chicago Seven defendants accused of inciting riots protesting the Vietnam War, civil rights activists seeking to end discrimination and protect the right to vote, and Guantanamo Bay detainees accused of terrorism.

Another poignant profile in courage was the American Civil Liberties Union's controversial defense of freedom of speech and assembly by championing the right of a neo-Nazi group to march through Skokie, Illinois, where Holocaust survivors lived.[7] This principled representation — invoking the same legal authorities cited in the civil rights cases — caused ACLU members to resign.

What is different in this case of vilification of Trump's attorneys is the massive scale and viciousness of the onslaught.

In just a few days, besides the Lincoln Project initiative, articles chastising Jones Day have appeared in the mainstream media such as The New York Times, Washington Post, Reuters and The American Lawyer. In his Washington Post opinion, Greg Sargent took direct aim at Jones Day: "[A]s Trump tries to wreck as much of our democracy as possible on the way out, we all have more work to do in holding his enablers accountable for their role in it."[8]

The pressure campaign sadly appears to be working. Porter Wright has announced that it is withdrawing its attorneys from representing Trump in a Pennsylvania election lawsuit. Jones Day issued a statement that it is not "representing any entity in any litigation challenging or contesting the results of the 2020 general election."[9]

Why should all of us be disturbed by this attack on the lawyers? Because two fundamental democratic principles are being jeopardized.

First, elections are the most sacred institution in a civilized society. Their sanctity must remain inviolate lest we lose the electorate's essential confidence as the glue that binds us together.

In our system, the president has every right to petition the judiciary to examine his grievances. That is what distinguishes our 240-year old democracy from many other nations: We fight in the courts not in the streets.

The walls of American democracy are not going to crumble no matter how many lawsuits or recounts. This paroxysm of litigation may be quixotic since no credible legal observer believes that, even if successful, it will affect the ultimate result that Joe Biden will be the next president of the U.S. So, let's all take a deep breath and allow the president to have his day in court — just as Al Gore did in 2000.

Second, the attack on the president's counsel is an attack on the fundamental right to hire counsel of your own choosing. It matters not whether the plaintiff is a pauper or a president. Our justice system depends on lawyers to advocate for their clients' causes fearlessly and zealously within the bounds of the law.

We cannot endure as a constitutional democracy committed to the rule of law if attorneys are stigmatized by their mere representation of unpopular clients. There should never be guilt by association or coercion by intimidation. The Lincoln Project's misguided campaign is reminiscent of a ruffian in Shakespeare's "Henry VI, Part 2," shouting, "The first thing we do, let's kill all the lawyers."

America has been honorably served by courageous trial lawyers. In 1770, John Adams, a popular patriot and renowned trial lawyer, successfully defended British soldiers charged with murdering five unarmed civilians in the so-called Boston Massacre. Roundly condemned for his treachery in defending the enemy, Adams lost most of his law practice.

Yet, Adams never wavered in his conviction that even the most despised redcoats had a right to legal representation. He wanted to demonstrate to the British that the rule of law thrived in the civilized colonies and the soldiers' denial of due process would be a lasting foul stain upon this country.

Berkeley Law School professor Orin Kerr hit the nail on the head in a tweet: "Going after lawyers for representing unpopular clients in unpopular legal claims has a really bad history, and tends to not go well. Our legal system needs lawyers to take on unpopular clients."[10]

Trump has every right to counsel of his choice. Those lawyers should not be demonized or ostracized for representing him so long as they abide by their ethical duties to act in good faith and not make spurious allegations with no foundation in fact or law. We will have written the epitaph for the rule of law in a free society if we allow political correctness to dictate whether a lawyer should represent a reviled client.

This foul stain on our nation may end up being the most pernicious outcome of the 2020 election.

Pierce O'Donnell is a partner at Greenberg Glusker Fields Claman & Machtinger LLP and a fellow of the International Academy of Trial Lawyers.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] https://www.bloomberg.com/news/articles/2020-11-10/lincoln-project-targets-law-firms-working-for-gop-on-election?sref=ASdY3XsZ.

[2] https://twitter.com/ProjectLincoln/status/1326213514495741958.

[3] https://www.washingtonpost.com/opinions/2020/11/10/inside-lincoln-projects-new-campaign-targeting-trumps-law-firm/.

[4] https://www.law.com/americanlawyer/2020/11/11/representing-gop-trump-in-election-suits-is-risky-for-jones-day-and-porter-wright/?slreturn=20201012190516.

[5] https://www.nytimes.com/2020/11/09/business/jones-day-trump-election-lawsuits.html.

[6] https://uk.reuters.com/article/usa-election-jones-day/blowback-against-trump-campaign-law-firm-targets-clients-recruiting-idUSKBN27S24E.

[7] https://www.aclu.org/other/aclu-history-taking-stand-free-speech-skokie.

[8] https://www.washingtonpost.com/opinions/2020/11/10/inside-lincoln-projects-new-campaign-targeting-trumps-law-firm/.

[9] https://uk.reuters.com/article/usa-election-jones-day/blowback-against-trump-campaign-law-firm-targets-clients-recruiting-idUSKBN27S24E.

[10] https://twitter.com/OrinKerr/status/1326275319192412160.

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