Trump Lawyer In Philly Says He Was Used To Aid 'Crime'

Law360 (January 7, 2021, 11:33 AM EST) -- Jerome M. Marcus of Marcus & Auerbach LLC, one of the attorneys who had represented President Donald Trump in his Philadelphia electoral challenge, told the federal court he wanted to withdraw from the now-dormant case Thursday, claiming he was used to "perpetrate a crime."

Marcus' motion to withdraw comes the day after pro-Trump rioters stormed the U.S. Capitol and seeks out of the case where the president had challenged how close the campaign's observers could get to watch the opening, verification and tallying of votes in Philadelphia.

"The undersigned respectfully requests leave of this court to withdraw as counsel ... inasmuch as the client has used the lawyer's services to perpetrate a crime and the client insists upon taking action that the lawyer considers repugnant and with which the lawyer has a fundamental disagreement," the motion said.

Marcus was citing the Pennsylvania Rules of Professional Conduct, rule 1.16, which outlines when an attorney can decline or terminate representation of a client.

Thursday morning, U.S. District Judge Paul S. Diamond said Marcus had to serve a copy of his motion to the campaign if he hadn't already, and allowed up to 14 days for any parties to file a response.

"Any and all peaceful protests and any well-founded legal challenge against potential election improprieties are not only appropriate but the right thing to do. The case I filed on behalf of the Trump campaign was factually based, because in Philadelphia the Trump campaign was not given equal access to observe the counting of absentee ballots," Marcus said in a statement to Law360. "Yesterday the filing of that and other cases were used by President Trump to incite people to violence ... I want absolutely no part of that. Therefore, I have asked the court to allow me to withdraw as counsel."

Trump had rallied his followers Wednesday with his unsupported claims that the election was "stolen" from him, which have included his false claims that observers were blocked in Philadelphia. His supporters then marched to the Capitol, where some broke in and disrupted the official tallying of electoral votes for President-elect Joe Biden; one woman was killed in the riot.

Trump's campaign had been denied closer access by a Philadelphia state court and was allowed to get as close as six feet by an intermediate appellate court. When election officials allegedly did not comply pending an appeal to the state Supreme Court, the president then appealed to the federal court, where Marcus represented the campaign. The state Supreme Court ultimately denied the campaign.

The federal court held a hearing Nov. 5 where the judge pressed Marcus on whether there were actually any Trump campaign observers in the counting room.

"They're saying that your people are in that room. Are they in that room or not?" the judge had asked.

"They're not giving equal access. ... There's a nonzero number of people in the room," Marcus had replied.

The campaign and the Philadelphia Board of Elections eventually worked out a deal at that hearing on how many observers could be in the room; the court then denied the campaign's request for an injunction without prejudice in light of the agreement.

Days later Marcus had an article published in The Federalist, titled, "I Was In Philadelphia Watching Fraud Happen. Here's How It Went Down," but his allegations focused entirely on how close watchers could get and the court fight to get them closer. Despite the headline and other parts of the article where he called the access issue "fraud," Marcus made no claims that votes were illegitimate or illegally counted, but he asked, "Why all the hiding? What's being hidden?"

The Trump campaign did not immediately respond to requests for comment Thursday.

The case is Donald J. Trump for President Inc. v. Philadelphia County Board of Elections, case number 2:20-cv-05533, in the U.S. District Court for the Eastern District of Philadelphia.

--Additional reporting by Matt Fair and Suzanne Monyak. Editing by Katherine Rautenberg.

Update: This story has been updated with additional information and comment.

For a reprint of this article, please contact reprints@law360.com.

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Case Information

Case Title

DONALD J. TRUMP FOR PRESIDENT, INC. v. PHILADELPHIA COUNTY BOARD OF ELECTIONS


Case Number

2:20-cv-05533

Court

Pennsylvania Eastern

Nature of Suit

Civil Rights: Other

Judge

PAUL S. DIAMOND

Date Filed

November 05, 2020

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