Above (and around) the law

Many of the lawyers who are not implicated in the indictment—including those in Trump’s own White House and Justice Department—are dyed-in-the-wool conservatives who believe wholeheartedly in the movement’s goals and objectives, yet balked at the proposition of a straight-up coup. Former Attorney General Bill Barr, Vice President Mike Pence, and former White House counsel Don McGahn fall into that category. The lawyers who star prominently in the indictment fall into another camp: those willing to break democracy for Trump and Trumpism. Those are the unnamed but publicly identified co-conspirators: John Eastman, Clark, Sidney Powell, Kenneth Chesebro, Boris Epshteyn (reportedly), and Rudy Giuliani. It’s also the crew of lawyers who signed their names to the flurry of bogus complaints attempting to overturn the election by nullifying millions of votes and legitimizing fake electors—people like Harry MacDougald, Emily P. Newman, Julia Z. Haller, Lin Wood, and Howard Kleinhendler.

Pay attention, because that will be the cohort that determines the future of American democracy. We need to name that camp and understand it, because the right flank of the legal profession has adamantly refused to police itself, and the legal profession as a whole has hardly raced to hold its most destructive and dangerous members to account. Leading players in the Jan. 6 indictment, including Eastman and Clark, were once luminaries of the Federalist Society, a network of conservative lawyers who hoist one another into positions of power. Yet the Federalist Society has consistently refused to denounce their complicity, or revoke their membership, or even condemn the coup itself. Instead, the conservative legal movement has welcomed these men—who have expressed no remorse for their actions—back into the fold. Lawyers on the right appear uninterested in exploring how colleagues who were once deemed most likely to succeed have overnight become most likely to be indicted.

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Anyone who was shocked by the details of Smith’s latest indictment might also be surprised to learn just how much worse it could have been—because rogue lawyers, including movement judges, just barely lost a series of pivotal battles. The Wisconsin Supreme Court, for example, came one vote away from nullifying thousands of ballots, thus overturning Joe Biden’s victory in the state and setting the stage for the Legislature to assign fake electors to Trump. It failed only because a single member of the conservative majority, Justice Brian Hagedorn, refused to go along with his hard-right Trumpist colleagues. We are lucky that Hagedorn was principled enough to reject this plot under immense pressure and criticism from his own party. But the fate of free and fair elections should not rely on sheer luck. (Wisconsin voters this spring elevated the liberal Justice Janet Protasiewicz to their state Supreme Court, sending a signal that they generally prefer jurists who do not facilitate coups; Protasiewicz was sworn in on Tuesday, shortly before the indictment was unsealed.)

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[C]onsider moves taking place right now, from efforts to unseat democratically elected officials in Tennessee, to ending majority rule for ballot initiatives in Ohio, to Alabama’s refusal to enact racially representative maps as required by the Supreme Court. The line between antidemocratic lawyers and movement lawyers as demarcated in the Trump indictment grows blurrier by the day as lawyers who claim to be Republicans work to undermine the popular vote.

  Slate