The Lincoln Project’s Shameful Attack on the Legal Profession

T he Lincoln Project, the anti-Trump group of ex-Republicans founded by George Conway, Steve Schmidt, John Weaver, Rick Wilson, and others, has sunk to a new low: personal harassment of lawyers representing Donald Trump and Republicans in post-election lawsuits:

What the Lincoln Project is doing is both a frontal assault on longstanding professed ideals of the legal profession and a tactic of personal harassment and intimidation that stands in clear violation of Twitter’s stated rules. Moreover, the harassment initiative aimed at Jones Day and Porter Wright attorneys openly extends to pressure campaigns against the other clients of Jones Day, an enormous global law firm with a roster of blue-chip clients:

“These people have now decided that attempting to undermine the outcome of a just and fair election is perfectly acceptable for their legal practices,” Rick Wilson, a GOP strategist and co-founder of the Lincoln Project, told me, in a reference to Jones Day and other firms representing Trump and the GOP. Wilson said the Lincoln Project will “bring a light on that,” noting that such efforts help Trump in “waging lawfare against the American people.” … Wilson said the campaign against Jones Day includes TV ads already in production, and will include a large social media push against the firm and its partners. He said the effort would also target some of Jones Day’s largest clients. “I’d like to know how General Motors justifies working with a company that’s aggressively seeking to undermine the validity of a free and fair democratic election,” Wilson told me.

Greg Sargent’s report of this interview adds an ironic disclaimer, “Jones Day represents The Washington Post on labor and employment law matters.” Norman Ornstein of the American Enterprise Institute, who has become a reliable voice in support of assaults on longstanding norms of American governance, wants bar associations to get involved against lawyers who file such lawsuits:

The New York Times reports on the pressure being placed on Jones Day:

In recent days, two Jones Day lawyers said they had faced heckling from friends and others on social media about working at a firm that is supporting Mr. Trump’s efforts. A lawyer in Jones Day’s Washington office felt that the firm risked hurting itself by taking on work that undermined the rule of law. “To me, it seems extremely shortsighted,” the lawyer said.

This is an old left-wing tactic, and Conway in particular — as a big-firm lawyer married to Trump’s former campaign manager and senior counselor — should know better. Abraham Lincoln would be ashamed to see his name associated with such tactics. Once upon a time, the legal profession prided itself on providing representation for any client, no matter how unpopular or controversial — the innocent and the guilty, the rich and the poor, the American and the anti-American. Even the Times gives a nod to that old value:

Like many big law firms, Jones Day … has prided itself on representing controversial clients. There was Big Tobacco. There was the Bin Laden family. There was even the hated owner of the Cleveland Browns football team as he moved the franchise to Baltimore. Now … [post-election work for Trump] is intensifying concerns inside the firm about the propriety and wisdom of working for Mr. Trump, according to lawyers at the firm.

It is fundamentally illiberal to sic internet mobs and pressure campaigns on lawyers merely because their cause is unpopular or their lawsuits unlikely to succeed. As recently as 2019, the president of the American Bar Association invoked John Adams’s famous defense of the redcoats accused of murder in the Boston Massacre to defend the virtue of taking on controversial causes:

Equating the bad acts of the accused with the attorney representing them can be a natural human impulse, especially when the crimes alleged are heinous and the defendants are unpopular. Lawyers, however, should not be ostracized or face penalties such as loss of business or abuse if they choose to defend a reviled client. Lawyers are not defending the crime. They are defending rights and liberties—to which we all are entitled—that are enshrined in the Constitution. They are ensuring that the procedures are fair, that the accused has not been mistreated and that the government has met its burden of proof beyond any reasonable doubt. These safeguards ensure that justice is there for the innocent and the guilty, the sympathetic as well as the unsympathetic defendant.

This is true as well in civil suits, including election contests. We all want free and fair elections. We all want to ensure the right to vote, and the right not to have that vote swamped by illegal ballots or by errors or malfeasance in vote-counting. We should want every court case over such allegations to be fairly adjudicated, and that includes having the contending sides properly represented. At least one Lincoln Project donor, Berkeley Law School professor Orin Kerr, has criticized the tactic:

For the most part, however, the asymmetry in how this principle is applied is glaring. When big law firms represented terrorists detained at Guantanamo Bay or murderers on death row, the profession closed ranks around them and handed out awards. When Paul Clement, one of the biggest stars in appellate practice, represented the United States House of Representatives defending a federal statute signed into law by Bill Clinton (the Defense of Marriage Act), he was effectively forced to resign his firm (which he chose to do rather than abandon his client) by a pressure campaign. Nobody would dream of launching this kind of campaign today against a Democratic candidate trying to prove voter suppression in court. Should they start doing so? Two can play at this game, after all.

In fact, it is a good thing to have responsible lawyers engaged in a legal process to challenge fraud and other forms of misconduct in the 2020 election. Their role is even more important when their client is the president, and he is throwing around wild and irresponsible allegations. Like it or not, many Americans mistrust the process and its result. Given the unusual nature of this election, in which so many votes were cast by mail in states with no history of handling large-scale mail-in balloting, that mistrust is inevitable and understandable. What is the alternative? Have the president sow doubt with no venue to test his claims? Encourage voters to take to the streets, as if this were a third-world country? We are supposed to be proud to be a nation of laws, in which leaders submit to the judgments of law rather than call on force to stay in office. We do that for the same reasons why we put criminals on trial even when their guilt is obvious, rather than lynch them.

The Internet, talk radio, and cable television are full of conspiracy theories. Many of those theories have not been raised in court filings because the lawyers do not want their names behind them. Others will be put to the test in court. Lawyers can, of course, be held responsible — in their professional reputations and in sanctions by the bench and bar — if they themselves misbehave, such as by making knowingly false filings and frivolous legal arguments. Those forms of discipline are not used very often in the law, and the standards should not be changed now simply because liberals in the profession want to strike at Trump. But they ensure that the system can handle this.

We do not have a legal system only in order to ensure fairness. We also have it to promote the peaceable resolution of disputes and the acceptance of outcomes after everybody has had their day in court. We have civil lawsuits so that we do not have vendettas and duels. Trying to hound the lawyers out of the picture is asking something worse to fill the vacuum. There is a reason why Shakespeare’s famous line from Henry IV — “The first thing we do, let’s kill all the lawyers” — comes from Dick the Butcher, a conspirator looking to throw society into chaos in order to collapse the government.

There are two sides here. The Lincoln Project’s founders, staff, and donors and elected Democrats should be asked whether they approve of attacking lawyers for taking sides in election lawsuits. And they should not be surprised if the same tactics are used against their own side by people on the right who do not respect the legal profession’s values or who see that in practice those values are yet another insincere sham that only applies to fashionable causes that are actually popular within the legal profession itself.