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By Kimberly Wehle
professor of law, University of Baltimore School of Law
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The latest indictment of former President Donald J. Trump for four crimes relating to the scheme to illegally take the 2020 presidential election has significant implications for the legal profession. Three counts charge the former president with various forms of criminal conspiracy—essentially an agreement to do something illegal. To that end, the indictment identifies six unnamed individuals who were in on Trump's alleged plan "to overturn the legitimate results of the 2020 presidential election" through "pervasive and destabilizing lies about election fraud." All six co-conspirators appear to be lawyers.
Rudy Giuliani's lawyer, Robert J. Costello, told The New York Times that Giuliani "appears" to be co-conspirator 1, and John Eastman confirmed that he is co-conspirator 2, who is described as "an attorney who devised and attempted to implement a strategy to leverage the Vice President's ceremonial role overseeing the certification proceeding to obstruct the certification of the presidential election." Former Trump official Jeffrey Clark fits the indictment's description of "a Justice Department official who worked on civil matters and who, with the Defendant, attempted to use the Justice Department to open sham election crime investigations and influence state legislatures with knowingly false claims of election fraud." Sidney Powell, Kenneth Chesebro (who authored a memo published on Tuesday night which laid out the fake elector plot in December 2020), and Boris Epshteyn—all lawyers as well—are believed to be the other three alleged co-conspirators.
In a bizarre irony, one of Trump's attorneys in this case, John Lauro, has already outlined a defense strategy that includes the argument that Trump "got advice from counsel—very, very wise and learned counsel—on a variety of constitutional and legal issues." Although reliance on the advice of counsel can be the "basis for a jury instruction on whether ... defendant possessed the requisite specific intent" to commit a crime, this particular claim—that the advice of co-conspirators operates as a defense to the crime of conspiracy because the co-conspirators are lawyers—is as novel as it is mind-bending. The argument doesn't work when "acting within the framework of the law was not the reason [a defendant] acted to deal with members of the Bar." Committing a crime with a bunch of lawyers is still a crime.
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Up until the Trump years, the profession of lawyering largely held itself to high ethical standards. Every lawyer in the country is sworn in to take an oath to uphold a slew of professional obligations and to support both state and federal law, including the U.S. Constitution, or face monetary court sanctions and possible disbarment. By filing 60-plus lawsuits challenging the 2020 election results, all of them unsuccessful, Trump's band of attorney cohorts may have permanently changed the profession, tragically ushering in the practice of using the judicial system for political gain under the guise of legitimacy.
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In March 2022, U.S. District Judge David Carter called this tactic out in a decision forcing Eastman to turn documents over to the House Committee on Jan. 6, finding that the attorney-client privilege did not apply to his communications with Trump because Trump solicited Eastman's advice in an attempt "to obstruct an official proceeding by launching a pressure campaign to convince Vice President Pence to disrupt the Joint Session on January 6" (a crime that Trump is now charged within the indictment). Carter called that civil documents dispute "a warning about the dangers of 'legal theories' gone wrong, the powerful abusing public platforms, and desperation to win at all costs."
Other courts have raised alarm bells, too.
In August 2021, a federal judge in Michigan sanctioned Powell and eight other so-called Kraken lawyers for seeking a court order that would have compelled Michigan's election administrators "to transmit certified election results that state that President Donald Trump is the winner of the election." U.S. District Judge Linda V. Parker called the lawsuit "a historic and profound abuse of the judicial process," which was "stunning in its scope and breathtaking in its reach" by attempting to "disenfranchise the votes of the more than 5.5 million Michigan citizens."
Eastman and Giuliani are also facing disbarment.
Now consider the anticipated "my-lawyers-said-it-was-okay" defense. Each of the four crimes charged in the indictment requires proof that Trump had a corrupt state of mind when he engaged in a multi-tiered effort to take the election from the voters.
What Lauro is suggesting, for example, is that for purposes of the first count—conspiracy under 18 U.S.C. § 371—the advice of the likes of Eastman and Giuliani made it impossible for Trump to have known that it was an offense to obstruct the "bedrock function" of U.S. democracy by interfering with the collection, counting, and certifying of the Electoral College votes, or to have had the intent to commit that offense. Never mind that Trump's own White House counsel, top brass at the Justice Department (including former Attorney General Bill Barr), and numerous federal judges—all with law degrees—said the precise opposite. Somehow, the defense's theory nonetheless goes, criminal activity becomes immunized so long as it's endorsed by someone licensed to practice law who is also willing to commit crimes.
This defense should lose bigly. As Judge Carter explained, the law is already well-established that clients cannot hide behind attorney advice for the purpose of committing crimes. They shouldn't be able to hide behind corrupt attorney "advice" to avoid a criminal conviction, either. The fact that this question is now open for public debate means that Trump, once again, has managed to push the limits of the law to unforeseen and unimaginable places. And once again, it will be up to the members of the same profession—lawyers and judges—to instill order and common sense on the chaos and confusion.
Kimberly Wehle is a professor of law at the University of Baltimore School of Law and author of the book, How to Read the Constitution—and Why.
The views expressed in this article are the writer's own.
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