The American Bar Association says that attorneys who helped former President Donald Trump try to overturn the 2020 election should be held accountable by state bar associations, and that the legal profession must protect democracy during the 2024 election.
The bar association − the world's largest voluntary organization of lawyers − is calling on the nation’s 1.3 million lawyers to lean on their legal training to volunteer as poll workers and to provide free legal advice to local election officials instead of taking action to undermine democracy.
It’s all part of a bipartisan effort co-led by former Secretary of Homeland Security Jeh Johnson, who served under President Barack Obama, and retired Judge Michael Luttig, who was appointed to the Court of Appeals for the Fourth Circuit by President George W. Bush.
The bar association put the pair in charge of leading the profession’s response to the Jan. 6, 2021 attack on the U.S. Capitol. Johnson and Luttig gave USA TODAY an exclusive interview before they release their recommendations to the rest of the field at a nationwide summit on Friday.
“They are uniquely qualified and are uniquely obligated to defend America’s democracy and the rule of law, among other things,” Luttig told USA TODAY. “Lawyers take an oath to do just that. And then, by way of almost a footnote, lawyers were largely responsible for the effort to overturn the 2020 presidential election.”
Luttig and Johnson have been holding events in swing states to find out how lawyers can apply their training to restore faith in American elections.
Lawyers aided efforts to overturn the 2020 election
Luttig’s former law clerk, John Eastman, was the architect of former President Donald Trump’s plan to send fake slates of electors to the National Archives and then-Vice President Mike Pence to pressure Pence to refuse to certify Biden's win on Jan. 6, 2021. Eastman faces disbarment over his actions.
Trump and his allies filed 64 lawsuits in six battleground states seeking to overturn the election. In a 2022 report called, "Lost, Not Stolen," Luttig and several other judges and experts went through each case and concluded, "Donald Trump and his supporters had their day in court and failed to produce substantive evidence to make their case."
Rudy Giuliani also lost his license to practice law in New York over lies he told while representing Trump in the aftermath of the 2020 election, and an ethics board in Washington, D.C. recommended his disbarment. Another Trump ally, Kenneth Chesebro, who pleaded guilty to charges stemming from his role in Trump's effort to overturn his 2020 loss in Georgia, had his law license suspended in Massachusetts.
Other lawyers who were charged in Georgia for their actions related to the 2020 election include former Department of Justice official Jeffrey Clark, former federal prosecutor Sidney Powell, and campaign lawyer Jenna Ellis. Stephanie Lambert was charged in Michigan for actions related to a voter data breach. There were also lawyers who signed onto fake electors certificates in swing states.
Representatives for Trump, Eastman, Giuliani, Chesebro, Clark and Ellis did not provide comment for this story by deadline.
“In 2020 and 2021, you had lawyers opportunistically signing on to making spurious, ridiculous, false arguments, false assertions of fact that gave credibility to the effort, and as a profession, we have to turn that ship in a different direction,” Johnson said.
‘It’s the lawyer’s obligation’
Ellis, who pleaded guilty in Georgia, told a judge through tears, “What I did not do but should have done, your honor, is to make sure the facts that the other lawyers alleged to be true were in fact true. In the frenetic pace of attempting to raise challenges in several states, including Georgia, I failed to do my due diligence.”
She said she erred in relying on “lawyers with many more years of experience” to provide her true information and would not have represented Trump if she had known what she knows now. A court in Colorado censured Ellis, meaning a judge wrote in a formal, public document that she engaged in misrepresentations about the 2020 election.
Luttig specifically referenced Eastman, his former clerk, calling the underlying legal theory for blocking Biden's win “tenuous.” He said if he had been in the Oval Office with Trump, he would have told Trump, “This is not a course that you should ever pursue, and I will not support you if you choose to pursue this course.”
“And that’s what lawyers should be saying every day of the week in every context,” Luttig said. “There’s nothing at all wrong, generally, with a client pressing the lawyer to make any possible argument that can be made. They don’t know. It’s the lawyer’s obligation to say to the client, ‘This is not something that we can argue or that I will argue on your behalf.’”
Luttig said he’s “under no illusion” about the state of the legal profession, and that there are hundreds if not thousands of lawyers out there who will do whatever a client asks them to do.
Johnson added: “You’re going to find a lawyer under some rock some place who’s willing to make a ridiculous argument as long as he gets his money up front, and we want to try and steer the profession away from this.”
‘Disagree better’
Johnson said lawyers are often leaders in their communities, and they should use that standing in order to instill faith in elections, not doubt, and that means providing information to people to dispute false claims.
He pointed specifically to training that lawyers receive in conflict resolution and mediation, and the decorum they’re required to show in courtrooms. He said that training can help them discuss difficult issues with ordinary people, helping the country “disagree better” and “turn the temperature down on our political rhetoric.”
“Speak to community groups, churches, school boards, parent meetings,” Johnson said. “Take a leadership role in talking about how elections work, how elections don’t work. Be an advocate for democracy. Shoot down misinformation that gets ricocheted around social media.”
“Just like doctors responded to the call in COVID-19, we want lawyers to do the same for democracy,” he said.
