Lawyers and the Abuse of Government Power

The legal profession needs to amend the rules of professional conduct to protect our constitutional system of government from those most likely to effectively undermine it: lawyers. The historic federal indictment against President Donald Trump for conspiring to stay in power after losing the 2020 presidential election included five attorney co-conspirators: Rudy Giuliani, John Eastman, Sidney Powell, Jeffrey Clark, and Kenneth Chesebro. Eight lawyers were indicted in Georgia on similar charges. Lawyers weren’t just involved in Trump’s plot; they devised and enabled it. Rather than accurately advise Trump that he had lost and needed to concede, lawyers crafted a plan to circumvent court losses and subvert states’ certified electors—effectively disenfranchising seven entire states to enable Trump to win with only 232 electoral votes. To accomplish this end, lawyers recreated a faux version of the 1876 constitutional crisis by fabricating false electoral slates—manipulating law and fact to enable a coup and give it the trappings of legality and thus legitimacy. Only lawyers could have performed these services. Yet this advice usurped the States’ constitutional power to select the President and placed it in the hands of the federal executive branch to manipulate and control—with Trump and his team creating the false slates and the Vice President instructed to refuse to count the certified slates. Notably, the most problematic conduct came from private sector attorneys who owed all of their duties to Trump personally. Further, while attorneys are required in the litigation context to have a reasonable basis in law and fact for anything submitted in court, the same is not true for attorney advice and assistance. Lawyers only violate the rules on advising clients if they advise or assist in conduct they actually know is an actionable crime or fraud. Lawyers are not required to have a reasonable basis in law and fact for their advice and can even advise illegal conduct. Importantly, when advising government officials in the use of government power or position, lawyers enable and effectuate how government power will in fact be used. Specific rules and guidance are thus needed for government advisor lawyers—meaning lawyers, whether privately or publicly employed, who advise and assist government officials in the use of government power and position. Such lawyers must be required to ensure a reasonable basis in law and fact for their advice and assistance since government power will be employed based thereon. Moreover, given the fact that government officials generally have some level of immunity and may not be held accountable for their actions, lawyers should be required to adhere closely to both fact and law when advising government officials in the use of government power—power that actually belongs to the people of the United States and is only temporarily bestowed by them on an officeholder. Finally, government advisor lawyers, even if privately employed, should have an express and enforceable duty to the public to uphold the integrity both of our constitutional system and of the office being advised.