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Trump's Lawyers Are Just Doing Their Jobs

Bloomberg logo Bloomberg 11/13/2020 Stephen L. Carter
a group of people holding a sign: Trump’s baseless claims have found an audience. © Photographer: Ethan Miller/Getty Images Trump’s baseless claims have found an audience.

(Bloomberg Opinion) -- President Donald Trump’s lawyers are under siege. The New York Times reports that mega-firm Jones Day is facing pressure from its own attorneys to withdraw from representing him in lawsuits claiming voter fraud. Piling on, the Lincoln Project plans to spend half a million dollars in a public relations campaign attacking the firm. Firms in Arizona and Pennsylvania have changed their minds about taking up the president’s cause. In four decades of teaching law, I’ve never seen anything quite like this.

And it scares me.

Let me be crystal clear: I’m no Trump fan. I’ve been harshly critical of the president, including in this publication, particularly on issues of race, and there’s nothing I have said that I would unsay. I also don’t care for the causes his lawyers are pursuing. Absent invidious discrimination, I’m a strong skeptic of recounts, and I don’t like lawsuits to force them, whichever party happens to be the plaintiff. Swift, graceful concessions, even when a recount is possible, do far more for democracy than drawn-out bitter endings.

So why am I frightened? Because we go down a dangerous path when we pressure lawyers to reject as clients those we revile. The representation of the unpopular has long been a core component of the integrity of the profession. The moments in our history when lawyers have lost that focus have not been happy ones.

The McCarthy era was perhaps the most notorious. Lawyers who represented accused Communists found themselves accused of professional misconduct, hauled before disciplinary hearings, even jailed for contempt of court. They lost business. They lost their jobs. Eventually the bar got the message, and cravenly backed down.

“I am obliged to appear ... without assistance of counsel,” Robert Truehaft testified in 1958, “because of the fact that the repressive activities of this committee have made it impossible for me to secure the assistance of attorneys of my choice.” Truehaft listed the rejections he had received from no fewer than seven prominent and upstanding members of the profession, who told him they were worried about their own careers.

The historian Ellen W. Schrecker, in her 1986 book “No Ivory Tower: MCarthyism and the Universities,” reminds us that finding lawyers was particularly tough for witnesses who intended to take defiant positions rather than do the bidding of the dominant anti-Communist right. When my great-uncle, a Tennyson scholar and hard-left activist, faced prison for refusing to name names, few members of the bar were willing to take up his cause.

For the legal profession of the time, all of this was routine. Even the American Civil Liberties Union was reluctant to represent accused Communists. As for Truehaft’s charges, the House Un-American Activities Committee responded by placing into the record a resolution endorsing its nefarious work. The resolution was from a committee of the American Bar Association.

One might respond that Trump is worse than the Communists. No doubt readers could have a lively debate on this proposition. Even if true, however, the assertion would strengthen rather than weaken the case for leaving his lawyers alone. Just last year, the outgoing president of the American Bar Association argued that lawyers “should not be ostracized or face penalties such as loss of business or abuse” because they have chosen to represent “a reviled client.”

Certainly, I do not argue that every lawyer need take on every client. Rule 6.2(1) of the Model Code of Professional Conduct is clear: “A lawyer ordinarily is not obliged to accept a client whose character or cause the lawyer regards as repugnant.” True, the rule goes on to require each attorney to take on “a fair share of unpopular matters or indigent or unpopular clients,” but there are plenty of ways to fulfill that mandate without representing Trump. And more important, the rule says nothing about lawyers rejecting clients whose character or cause others find repugnant.

To take the obvious example, I wouldn’t represent the president (not that he’d ever ask me). Among other reasons, I regard his allegations of fraud as farcical. But that’s my choice. Other lawyers get to make their own. I wouldn’t object if one of my faculty colleagues joined Trump’s legal team. If I were in a law firm, I wouldn’t try to dissuade a partner who wanted to take him on as a client.

But suppose one regards this particular representation — challenging the election results — as particularly dangerous. That’s fine, as long as it’s a consistent principle. One who sincerely believes that lawsuits challenging the ballot counts delegitimize the democratic process must be equally willing to condemn, for example, the Hillary Clinton supporters who sued to recount Michigan’s ballots in 2016; and Al Gore for filing suit to demand a third recount in Florida in 2000. And if the answer is, “No, they had good grounds,” then the criticism boils down to an assessment of the evidence.

Which is what courts are for.

This leaves us with Trump himself. I agree that his erratic bombast and vindictiveness create an atmosphere of fury and division. But that, too, was an argument made during the McCarthy days. In her biography of former Supreme Court Justice Abe Fortas, Laura Kalman quotes his law firm’s statement that it would not represent Communists because the antics and of such clients “would not permit them to discharge the obligation of their profession in a creditable manner.”

 Yes, the era is different. Trump is the president, at least for the next two months. As a boisterous billionaire with powerful friends, he’s hardly the object of suppression. But the revolt of the bar rests on neither his billions nor his power; it rests on a general revulsion for him and what he stands for. One can share the revulsion and yet understand that it’s the worst reason to go after someone’s lawyers.

Again, let me be clear. I strongly believe that Trump would do the nation a service by dropping his lawsuits and conceding the election with whatever ill grace he can muster. But I wish much the same thing after every close race. I’m not prepared to condemn my fellow lawyers because they disagree.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Stephen L. Carter is a Bloomberg Opinion columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall. His novels include “The Emperor of Ocean Park,” and his latest nonfiction book is “Invisible: The Forgotten Story of the Black Woman Lawyer Who Took Down America's Most Powerful Mobster.”

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