Your Monthly Constitutional

Lincoln Memorial University Duncan School of Law

Okay, we’ve all been there: in a conference room with a client who is pushing us—hard—to do something unethical. Nothing we say persuades him otherwise. He threatens to take his business elsewhere. And then we wonder whether what he wants is, you know, really so unethical, after all.

When we represent politicians, such pressures can be a daily affair, especially if we’re not doing it just for the money, but because we truly believe in the politician’s cause. To paraphrase a partner at a big DC firm, it’s dangerous to believe your own BS.

There’s a great overlap between politics and law. Constitutional law, which I’ve taught for close to two decades, is just politics written down.

That’s what I tell my students, anyway, and it’s what I reluctantly believe. Because it’s true. As much as we might like to consider our Constitution to be holy writ—note the capital “C”—it is, in fact, the flawed product of political compromise between flawed human beings.

Much the same can be said of all statutory law and, arguably, most common law—it is the rare judicial opinion that is entirely free of political and personal bias, although we tend to call such things by other names: “policy considerations” or perhaps “judicial philosophy.” Our current Chief Justice, John Roberts, promised to act only as an umpire, calling balls and strikes, but he has undeniably led the Supreme Court to the right, while occasionally trimming the sails (individual mandate, anyone?) to preserve the Court’s aura of apolitical legitimacy.

Understandably, many lawyers are fascinated by politics, and often participate, personally or professionally, in elections. When they do so, especially when they represent partisan interests, they risk committing ethical violations. Just ask Bill Clinton. As a sitting president, Clinton was forced to defend against a sexual harassment claim by Paula Jones, despite claiming presidential immunity.1 During videotaped deposition testimony, Clinton lied about his involvement with another woman, Monica Lewinsky, leading to his impeachment and, perhaps, the election of his successor, Republican George W. Bush. Often overlooked, however, is that his lies also led to his being fined $90,000 for civil contempt, as well as the suspension of his law license.2

Similarly, Richard Nixon’s Attorney General, John Mitchell, was disbarred3 after being convicted of (among other crimes) committing perjury during his testimony before the United States Senate Select Committee on Presidential Campaign Activities.

And then there’s John Dean, former White House Counsel, and advisor to Nixon, allegedly the mastermind of the Watergate coverup, who flipped on his boss and ended up in the slammer. He lost his law licenses, too.

It’s said that history doesn’t repeat itself, but it rhymes. These days, the rhyme seems strongest in the person of our current president’s most prominent lawyer, Rudy Giuliani, who recently announced with great fanfare at the Four Seasons Total Landscaping company that election fraud was occurring in Philadelphia. He offered no evidence, unless you count the unsubstantiated allegations of his first witness, convicted New Jersey sex offender Darryl Brooks.4

Rudy will not likely be sanctioned for his press conference—there is that First Amendment thing, after all. But if he goes into court with such a witness, and nothing more, well then there’s that whole Rule 11 thing. Trump’s other lawyers are clearly aware of this danger, as well as the harm they do by alleging widespread voter fraud in court filings

without any factual basis:

Some senior lawyers at Jones Day, one of the country’s largest law firms, are worried that it is advancing arguments that lack evidence and may be helping Mr. Trump and his allies undermine the integrity of American elections, according to interviews with nine partners and associates, who spoke on the condition of anonymity to protect their jobs.5

Indeed, with regard to one Pennsylvania case, several “Jones Day lawyers said that given the small number of late-arriving ballots involved in the litigation, and the fact that they already had been segregated, the main goal of the litigation seemed to be to erode public confidence in the election results.”6 Improper purpose, anyone? Beyond ethical considerations, the involvement of Jones Day in Trump’s election litigation has garnered the unwelcome attention of the Lincoln Project, famous for its attack videos, which will soon launch television ads critical of the firm.7 Let’s be clear: If, in fact, there has been widespread election fraud, well then, all Americans should be concerned. We should root it out, punish those responsible, and prevent such transgressions going forward. But . . . evidence? Georgia’s Secretary of State, Brad Raffensberger, a Trump-endorsed Republican, has insisted that the election in that state has been fair and transparent. Nonetheless, Georgia’s two Republican Senators, both in close runoff elections, have called for his resignation.8 Meanwhile, Gabriel Sterling, one of Georgia’s key election officials, sought to debunk the various allegations that have circulated and said, “[t]he facts are the facts, regardless of outcomes.”9

Shades of John Adams: “Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence.”10

Facts. Truth. Wise words. Thanks, John.

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10 Clinton v. Jones, 520 U.S. 681 (1997). In Re: William Jefferson Clinton, Arkansas Bar ID #73019, Arkansas Supreme Court, Committee on Professional Conduct, Notice of Suspension of Attorney’s License to Practice Law, February 21, 2001. Mitchell v. Association of the Bar, 40 N.Y.2d 153, 351 N.E.2d 743, 386 N.Y.S.2d 95 (1976). Man featured at Giuliani press conference is a convicted sex offender, Politico, Nov. 9, 2020, available at: https://www.politico.com/states/new-jersey/ story/2020/11/09/man-featured-at-giuliani-press-conference-is-a-sexoffender-1335241. Growing Discomfort at Law Firms Representing Trump in Election Lawsuits, New York Times, Nov. 10, 2020, available at: https://www.nytimes.com/2020/11/09/ business/jones-day-trump-election-lawsuits.html. Id. Inside the Lincoln Project’s new campaign targeting Trump’s law firm, The Washington Post, Nov. 10 2020, available at: https://www.washingtonpost.com/ opinions/2020/11/10/inside-lincoln-projects-new-campaign-targeting-trumps-lawfirm/. Georgia Senators Ask Election Official to Resign in G.O.P. Squabble, New York Times, Nov. 10, 2020, available at: https://www.nytimes.com/2020/11/09/us/kellyloeffler-david-perdue-raffensperger.html. Id. Adams’ Argument for the Defense: 3–4 December 1770, available at: https:// founders.archives.gov/documents/Adams/05-03-02-0001-0004-0016.

Stewart Harris is the host of Your Weekly Constitutional, available for streaming and downloading on iTunes and Spotify.