Less than a week after the election was called for Joe Biden, supporters are turning to Henry the Sixth with their first priority. “The first thing we do, let us kill all the lawyers.” That lawless fantasy of the character “Dick the Butcher” seems to have gained ground not only among some of the public but some lawyers themselves. The media and legal analysts have declared no evidence of voter fraud to change the outcome.
The problem was that we had not even seen the evidence from the Trump campaign. As these lawyers started to file cases, alleging everything from deceased voters to biased authentication, the solution became clear. Get rid of the lawyers. No lawyers, no lawsuits, no Donald TrumpDonald TrumpOhio Republican who voted to impeach Trump says he won't seek reelection Youngkin breaks with Trump on whether Democrats will cheat in the Virginia governor's race Trump endorses challenger in Michigan AG race MORE. What is very unsettling is that this effort has been undertaken by lawyers.
Take Washington Post columnist Randall Eliason, who gained notoriety in supporting an array of theories for the impeachment of Trump, such as a bribery interpretation rejected for the Supreme Court and not even used in the House Judiciary Committee. Eliason wrote a recent opinion column arguing that going after law firms that represent Trump is “fair game.” He shrugged off the notion that attacking attorneys, rather than positions, is beyond the pale and called such prominent law firms “big business” that can be held accountable by the public and their customers.
However, the law is not like any other business. Lawyers speak for others, including some of the least popular among us. I have represented clients ranging from judges, members of Congress, and whistleblowers to spies, terrorists, and polygamists. Many of these clients were very much hated with the public, who demanded I be fired from my law school. Yet I have never seen such a campaign led by lawyers against lawyers.
Our legal system works best when competent lawyers present cases to objective judges. In this scenario, some 72 million Americans voted for Trump, and many believe that changes in the process, most notably the massive increase for mail voting, undermined election integrity. That is why such cases are important. Faith in our legal system depends on fair access to and representation of all Americans in the courts.
As in the past, there is a disturbing symbiosis of the media and activists feeding off each other. When Biden was viewed as the likely winner, the theories of voting irregularities swiftly turned into conspiracies. Groups such as the Lincoln Project targeted law firms and created a campaign to force lawyers to abandon the current president as a client.
This effort has resulted in Twitter blocking the Lincoln Project for targeting lawyers in a tweet that was denoted as abusive. The Lincoln Project is said to have also joined Democrats in targeting law firms like Porter Wright and threatening its attorneys with ruin. It claimed that any law firm working for Trump with election litigation is a “dangerous attack” over our democracy. But trying to strip people of counsel is the real attack. The law firm bucked and cited new internal struggles and at least one resignation.
This campaign to intimidate the lawyers who represent Trump is not about vengeance but rather insurance. Even if the success of these cases is very small, his opponents do not want to risk the judicial scrutiny of the ballots. Posts on social media targeted clients of law firms such as Jones Day, and the Lincoln Project pledged $500,000 to make the lives of these lawyers a living hell. It is the kind of tactic which is used by antifa and other activists to “deplatform” speakers or harass individuals at their homes.
Trump is unpopular with many Americans so it is popular to harass anyone who supports or represents him. It is mob justice of the justice system. Yet lawyers like Eliason back the effort. He justifies such harassment by saying the Trump campaign and Republican groups “filed lawsuits that appear to contain baseless allegations of fraud and which seek to have lawful votes rejected.” The word “appear” means that he has not seen the evidence as neither have I. It is the difference between wanting something to be true and knowing something to be true. It is what courts decide.
Yet there is little patience to debate, let alone litigate, such issues. I talked about these challenges, including a Michigan district where thousands of Trump votes were first tallied as Biden votes using the software that is the subject of much national debate. While I said that the mistaken tabulation resulted from human error, it is unclear whether such software or systems might be vulnerable to human error. Despite my stating that there was no evidence with systemic problems, law professor Paul Campos denounced me as akin to a “Holocaust denier” who should also be fired.
The person most undermined is Biden. Instead of asking for the review of these cases to affirm his legitimacy as the next president, his backers are harassing lawyers and running a retaliation campaign. It is an ironic twist since many of us marveled at how guilty Trump looked in his acts to bully his accusers and derail the Russia investigation. The best thing for Trump would have been to support a full investigation. There is also no evidence of systemic election fraud. The best thing for Biden would be to support a full investigation. The threats and biased media coverage only worsen the suspicions of the 72 million Americans who voted for Trump.
There is an alternative. We can concur that every ballot must be counted and every case be heard. This crisis of faith has moved from the political system to the legal system. The courts are supposed to be where reason transcends the rage outside. However, it still needs lawyers.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.