We no longer live in a free country. Maybe you didn’t realize it.
Most of our lives are dominated by the bread and circuses, propaganda silos, and self-created virtual worlds of the 21st century, on top of centuries of American prosperity and stability made possible by nationalism. When superimposed on America, it’s easy to miss the totalitarian steam that pervades America. rule of law.
The rule of law is America’s answer to tyranny and totalitarianism.
The target of this early totalitarianism is a rather unlikely figure: a lawyer.
Lawyers don’t get much sympathy. But when you need to protect your life, liberty, and property, your lawyer is your shield, your defender, and your friend. Lawyers are important not only to individuals in crisis, but also to the rule of law more broadly. In the United States, the rule of law is under attack by the people and organizations that seek to uphold it.
The persecution currently unfolding against two American lawyers, John Eastman and Jeff Clark, illustrates this. This foreshadows problems not just for lawyers, but for the rule of law itself, and for all of us who live under the freedoms and protections it provides.
Eastman, a prominent conservative constitutional law scholar, was retained by President Donald Trump as his personal lawyer in late 2020. Clark served as an assistant attorney general at the Justice Department in the Trump administration. After the election, both men worked to uncover and correct election irregularities in battleground states that were so severe and potentially widespread that they could affect the Electoral College outcome and that Donald Trump There is a possibility that Joe Biden was mistakenly elected. .
I have known John and Jeff for 37 and 28 years respectively. Both men have been prominent lawyers in conservative legal circles for decades. The three of us practiced together at Kirkland & Ellis in the 1990s and early 2000s, and are currently involved in lawsuits seeking Mr. Eastman’s removal from office in California, the District of Columbia, and Georgia. Ironically, it plays an important role. He will remove Mr. Clark from the practice of law and prosecute them as criminals along with President Trump.
A California court ruled late last month that Mr. Eastman should be disbarred after one of the longest and most expensive legal battles in our nation’s history. Clark’s judicial trial began last week in the District of Columbia. These lawyers, even though they were both rightfully at the top of their professions, were indicted as criminal accomplices, stripped of their jobs and livelihoods, taken from their homes by the FBI, and handcuffed. It is being compulsorily executed. The culprit is on foot.” His house was destroyed. wives And children are harassed.
Not only that, but the Kafkaesque bureaucracy of their persecutors includes former law partners, colleagues in the Republican administration, clients, friends, and even co-clerks to Judge Thomas, Eastman, and my husband. This includes former federal judges who served as civil servants. He was a special personal friend.
All of these people are well aware that neither Eastman nor Clark ever “denied” or “attempted to overturn” an election. Neither of them ever misrepresented the facts or law regarding the 2020 election. They did not lie or commit fraud, but the court of justice labeled them guilty in the old-fashioned language of aggressively asserting a case that the election was seriously flawed. He is not guilty of “moral corruption,” as he is.
Lawyer’s duties
Eastman and Clark did what other leading American lawyers do every day. That means passionately advocating on behalf of our clients based on the facts and the law. We did it all day, every day at Kirkland & Ellis. Those who performed best were rewarded with large bonuses and promotions, and were not subject to disbarment or criminal prosecution.
Yes, the betrayal here is personal, representing a world where loyalty and friendship have lost meaning. But in a broader sense, betrayal is not just about individuals. It’s a principled thing. That principle is the rule of law.
New rules are forming. Avoid using aggressive or creative arguments against your client, especially when the law is vague or untested. Save your skins.
The rule of law means that public decisions are made regarding the neutral application of laws enacted by the sovereign, or in the case of the American administration, the people. The rule of law has always distinguished America from the norm in most times and places throughout history. There, laws were created out of raw power and exercised by those who held them to suit their own whims.
America’s unique rule of law was the way we chose to protect life, liberty, and property in this imperfect world. It is America’s answer to despotism and totalitarianism.
Lawyers and judges who litigate cases and resolve disputes based on the rule of law operate within the context of an “adversary system.” This system is premised on the belief that when two sides disagree about what the law states, each side will vigorously defend its position. It is possible through his lawyer (his defender and his friend) and before a neutral judge.
As a result, while in theory, and in practice in the United States until recently, when “lawfare” (a seemingly milquetoast term) was unleashed against President Trump and his lawyers, the truth is out. And justice will prevail. There’s nothing like an adversary system to test arguments, shine a light on unearthed facts, and stack every fact and argument the advocate can think of on the client’s side of the scales of justice.
In law school, lawyers learn basic principles such as: Federal Rule of Civil Procedure 11: Lawyers advance arguments that are “justified by existing law or by frivolous arguments for extending, amending, or reversing existing law, or enacting new law” and are “supported by evidence or… You must make factual claims that are likely to be supported by evidence. After a reasonable opportunity for further investigation or discovery. ”
When a lawyer takes on a client, he or she has an obligation (not an option) to vigorously defend the client. It doesn’t matter if your client is Donald Trump, Joe Biden, a serial killer, or the United States government. In the past, a lawyer was considered a bad lawyer if he or she did not actively advocate for the client. If they were lazy, negligent, or more concerned about their property, they may even have committed a legal offense.
Dangerous new standards
But now new rules seem to be forming. Never use aggressive or creative arguments against your client, especially in areas where the law is vague or untested. Save your skins. Avoid being criticized, defeated, disqualified, or sent to prison. These are objects.
If the many lawyers who have argued for extensions of laws that are not yet on the books, advocated interpretations of the Constitution that had never been made before, and put forward “creative” arguments to put it bluntly, were taken from their homes. What would have happened if it had been? Was he disbarred by the FBI and criminally prosecuted?
What if the Eastman-Clark standard had been applied to Thurgood Marshall, who advocated overturning decades of Supreme Court precedent? Brown v. Board of Education Is it based on some social science research?
The Eastman-Clark standard was used by attorney David Boies, who argued for a statewide recount of Florida after the 2000 presidential election, using “voter intent” as an absurd rule for counting unconfirmed votes. What would happen if it were applied? Did Al Gore defeat President-elect Bush? The boys forced election officials to impose their will, disenfranchising legal voters by allowing credit votes that were not legally and properly cast. It would have damaged democracy. But Mr. Boies has been disbarred, tarred, feathered as an “election denier,” and labeled as a criminal for trying to overturn the election on an illegal basis on Al Gore’s behalf. No charges were filed.
None of this would have happened to Hillary Clinton and her lawyers who claimed she had really won the 2016 election — or would have won had it not been for her alleged collusion between Russia and President Trump. Dew. Even when her hoax was exposed, neither she nor her lawyer paid anything.
Just as there was absolutely no evidence that Hunter Biden’s laptop was a Russian propaganda ploy, contrary to the claims of Joe Biden, Antony Blinken, and the 51 intelligence officials who signed it, Trump and Russia There was no evidence of collusion. There was a letter.
The height of lawlessness
I will always remember what Justice Clarence Thomas, for whom John Eastman and I clerked, told us: To test what you think is the correct outcome, see if you would think the same thing if the positions were reversed. That way, you will know whether you are truly thinking fairly and based on the rule of law.
It is a great test from a wise man. If we don’t follow it, the rule of law will disappear, and then the people may start to realize. It’s already too late.
When I testified as a character witness at Eastman’s attorney trial, I told the judge how John had lived his life. Like Clark, it’s not because of lies. Both are devout Catholics. They live their faith. Not in the sense of imposing one’s faith on others, but in the sense of personal obedience of the Ten Commandments, the ninth of which is “Thou shalt not bear false witness.”
I’m sure neither John nor Jeff thought challenging the 2020 election was worth the hell of it.
I don’t think the judge appreciated my argument. I don’t think she understands that either.
This comes as Mr. Eastman’s disbarment judgment was handed down on the Wednesday of Holy Week, and while Mr. Clark and his attorney spent the Easter weekend preparing their defense against disbarment in the district, Mr. Eastman It became clear that he had only three days (the Easter Triduum) to draft a response to it. of Colombia. And because Eastman was stripped of his law license, he was also deprived of the means to raise the funds he needed to defend himself against pending criminal charges.
But totalitarianism and torts work just like that.
Editor’s note: A version of this article was originally published at: Annals.
