One of the many great provisions in the American Constitution provides that everyone is entitled to a defense. The "right to counsel" is guaranteed by the Sixth Amendment and the "due process" clauses of the Fifth and Fourteenth Amendments.
What, however, are the implications when the lawyers who provide that defense are threatened with disbarment proceedings, crushing legal costs to defend their licenses, exclusion from participation in the broader legal and academic communities, and having their reputations smeared, all because they represented clients who were deemed unpopular or took on cases fraught with controversy?
Lawyers throughout America are being subjected to these very ordeals due to their participation in cases related to the 2020 presidential election. One of the principal groups pursuing this strategy operates under the name "The 65 Project."
The group targets lawyers who litigated 2020 election irregularities or represented President Donald Trump. It does this by filing complaints against them in state bar associations, contending not only that the lawsuits were meritless but that anyone involved in them should be sanctioned — up to and including disbarment.
This may be the first time in our nation's history that election controversies have denigrated into such "lawfare." Election controversies are not uncommon, and heretofore, they have not led to such actions by disciplinary bodies. Lawyers brought legal challenges in the contested 2000 Bush v. Gore election and the 1960 Nixon v. Kennedy election, for example. In 1876, still in the intense aftermath of the Civil War, Congress even created an Electoral Count Commission to resolve which of two slates of electoral votes from several southern States should be counted.
Litigation over election disputes has also been frequent in state elections. In a 1994 Pennsylvania state Senate race, for example, evidence of fraud uncovered after the certification of the election resulted in the election being de-certified, the previously-declared winner being removed from his seat in the Senate, and the actual winner being certified and seated instead. In 2018, an illegal ballot-harvesting scheme in a North Carolina congressional race resulted in that State's Board of Elections throwing out the results and ordering a new election. As recently as December 2023, a judge ordered a new election in the Caddo Parish, Louisiana race for sheriff due to extensive vote irregularities. Also in 2023, a Connecticut superior court ordered a new mayoral primary election in Bridgeport due to absentee-ballot fraud. Cases of election fraud continue to come to light, but those who challenged 2020 election activity in court filings have been marked for persecution.
The 65 Project website makes the claim that defending democracy and the rule of law informs and propels their efforts, but scrutinizing elections or challenging irregular and fraudulent activities through litigation threatens neither.
Democracy is the rule of the people. Publius, in Federalist Paper No. 39, invokes the spirit of democracy to define a republic as "a government which derives all its powers directly or indirectly from the great body of the people." Publius continues, "It is ESSENTIAL to such a government that it be derived from the great body of the society, not from an inconsiderable proportion, or a favored class of it." Voting for representatives to govern is one of the means by which the people exercise their sovereign authority and give their ongoing consent to be governed. Ensuring the integrity of elections is thus a fundamental requirement to support the legitimacy of the American democratic republic.
Not only is The 65 Project's mission misguided, it also strikes at the heart of deep-rooted and long practiced American legal traditions. Lawyers are an integral part of a larger judicial system that serves the functions of resolving disputes, administering justice, and maintaining social order. The American judicial tradition traces its roots to early colonial practices, which varied from a Magistrate who conducted trials, to plainly written laws that allowed for persons to plead their causes to systems of arbitration courts that had laymen (also called "common peacemakers") presiding, and eventually to the presence of judge, lawyers, and jury in the current adversarial system.
Do The 65 Project participants fear that the 2020 or future election irregularities would be exposed in fair courtroom hearings? Do they work to discourage or strike fear in lawyers who consider pursuing such cases by putting them in the crosshairs of bar associations that have prodigious resources and in some states one-party control of appointments that makes impartial outcomes questionable? We do not have to speculate about the motives of "The 65 Project." The head of the group has admitted that their goal is "to deter right-wing talent from signing on to any future GOP efforts" to challenge elections, not only by bringing bar complaints but to "shame them and make them toxic in their communities and their firms."
The 65 Project's straight-faced motto, incidentally, is, "Defending Democracy and the Rule of Law." If only!
The actions of groups like The 65 Project diminish and compromise the bar associations, the legal profession, the adversarial system, and the country. We are witnessing a shift in the legal system from lawyers representing and defending clients to lawyers becoming the accused and, as a form of pseudo-juridical destruction, being charged with unfounded claims. If we do not put a lid back on this pandora's box, controversial clients will not have the benefit of representation, disputed issues will not get a hearing, constitutional issues will remain unresolved, the legal system will lose worthy advocates, and due process will be effectively thrown out.
The efforts by The 65 Project need to be forcefully repudiated. Lawyers who are subjected to these frivolous bar complaints need to be supported financially and defended by their peers, and all claims of irregular and fraudulent activity in local, state, and national elections need to be heard thoroughly and resolved in the courts. The 65 Project website tracks their work. Use the information there to find the lawyers that they are targeting and, if possible, please send money to their legal defense funds.
Elizabeth Eastman holds a Ph.D. in Political Science from Claremont Graduate School, an M.A. in Liberal Education from St. John's College, and a B.A. in French Literature from Scripps College. She was the 2020-21 Senior Scholar in Residence at the Benson Center for the Study of Western Civilization at the University of Colorado, Boulder. John Eastman, her husband of 32 years, just finished a ten-week bar trial in California defending his bar license. A good summary is here.
judith grayson