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IN FOCUS – Lawfare Against Lawyers

Hands Pulling Strings

It was not until 1935 that the U.S. Supreme Court was provided its own building, located immediately behind the U.S. Capitol. Prominently inscribed over the entrance to the Supreme Court is high-sounding phrase “Equal Justice Under Law.”  Elsewhere is inscribed the legend “Justice the Guardian of Liberty.”  Although there are some circumstances in which individuals may represent themselves in court, such as in a small claims court and as criminal defendants, in most cases, even the chance to obtain “equal justice” is dependent on the availability of a licensed attorney.  That right to counsel is now under attack.

Attorney Availability

The American Bar Association reports that there were over 1,331,290 active lawyers in the United States as of the beginning of last year.  That may sound like an enormous number of lawyers from which conservative clients could choose to handle a case, but that would be wrong.  Good data on the number of lawyers in private practice is hard to come by, and then you need to subtract lawyers who do not litigate, those who have never handled a significant policy related case, and those too busy to take on a major new case.  As the American Bar Association forces law schools to become more diverse and woke in their admissions and curricula, those schools are churning out a stream of young Leftist lawyers who seek to fundamentally transform America, and share none of the traditional ethics of the profession, including the right to counsel.

Beyond those constraints, litigation surrounding mandatory COVID jabs has shown that there are few lawyers willing to represent individuals who would rebel against what the government claimed was “settled science.”  Many lawyers were told by their firms that they could not take those cases.  The same happened again when the establishment press repeatedly lied and told us the 2020 election was the most honest election ever, many of those lawyers who wanted to challenge the results were forced to leave their firms.  Law firms of any size do not want to offend their government, big business, or Leftist establishment clients.

So, the truth is that there are a small number of lawyers in each state who are available to represent conservatives to oppose the government in controversial cases.  This shortage of legal talent is bad enough, but Leftists have decided to make the problem worse.  There is no known precedent for a political faction in America seeking to win cases by depriving their political opponents of competent legal counsel.  But that is now a dominant strategy of Leftists.  It can include public shaming, hit pieces by Leftist websites and the establishment press, bar complaints seeking to suspend or disbar lawyers, and motions for large financial sanctions when conservative lawyers lose cases.

Project 65

A shadowy dark-money group called Project 65, connected to former Clinton strategist David Brock, announced plans in March 2022 to “spend millions of dollars to target 111 lawyers from 26 states, looking into attorneys from large national firms and some within smaller firms” who supported efforts by Trump and Republicans to challenge 2020 election irregularities.  The goal, Brock says, is to “shame them and make them toxic in their communities and in their firms.”  The group has filed scores of ethics complaints against former Trump attorneys, Texas Sen. Ted Cruz, Alan Dershowitz, and numerous Republican state attorneys general. 

“I think the littler fish are probably more vulnerable to what we’re doing,” said Brock.  “You’re threatening their livelihood.  And, you know, they’ve got reputations in their local communities.”  The Left makes no secret of its intent to deprive conservative candidates of legal representation by intimidation and forcing conservative attorneys out of business.  “It’s worked quite well,” Project 65 bragged on Twitter, “since few election attorneys now dare to represent Kari Lake and other conservative candidates who lost their races.”  In this ignoble cause, Project 65 is joined by the so-called States United Democracy Center, yet another well-funded Leftist group.

John Eastman 

Possibly, the most intense attack on any lawyer was brought against the nation’s premier conservative constitutional lawyer, John Eastman.  Project 65 has helped convince the California Supreme Court to take steps to disbar Eastman.  As two of Eastman’s children wrote for The Blaze, “a bar court judge who has continued to make donations to Democrat politicians even after taking the bench has recommended the disbarment of Eastman.”  The partisan Democrat judge faulted Eastman for, among other things, signing a motion to intervene for President Trump in Texas v. Pennsylvania, a case in which Justices Alito, Thomas, and Gorsuch stated that “‘there is a strong likelihood that [Pennsylvania] violate[d] the Federal Constitution,’ just as Texas and Eastman said.”  The Judge wants to ensure Eastman cannot defend Trump or other conservatives in the future or even afford his own legal defense.

As former federal prosecutor T.J. Harker writes, the judge “had to make these findings to justify taking Eastman’s law license.  So, she did.  The outcome was predetermined.”  Shortly before Biden’s inauguration, “more than one hundred Chapman University faculty mounted a pressure campaign to terminate John Eastman from his position as tenured professor and Dean of Chapman University Law School, his competent stewardship notwithstanding.”  The school caved to the Left, and Eastman lost his job.

Eastman’s children, Benjamin Eastman and Christina Wheatland, have urged conservatives to fight fire with fire:

There is no shortage of options to pursue an offensive or defensive lawfare strategy.  Pick one and get into the fight.  File bar complaints against rogue prosecutors.  Refer corrupt judges to state judicial qualifications commissions. Campaign for the impeachment of partisan judges.  Become involved with bar associations to ensure a more evenly balanced disciplinary process.  Provide counsel or legal defense funds to lawyers weathering this storm on your behalf — because Eastman won’t be the last.

The Georgia Indictments

Criminal charges were brought against 19 Trump supporters, including eight pro-Trump attorneys in deep-blue Atlanta, Georgia.  Three of these lawyers, facing hostile juries, entered guilty pleas to avoid the risk of harsher sentencing later.  However, guilty pleas tell us little about whether a person is guilty.  As District Judge Jed S. Rakoffexplains, only 3 percent of federal cases ever go to trial.  Federal prosecutors throw every charge in the book against defendants, and where a jury is politically hostile, the risk of going to trial and potentially being sentenced to years in federal prison is simply too significant for many defendants to risk.

The Arizona Indictments

Within the last week, the full scope of the massive effort to criminalize challenges to election results was revealed by Leftist Arizona Attorney General Kris Mayes.  Criminal charges were brought against 18 Trump supporters in a case called Arizona v. Ward.  Those indicted include the 10 Republican Electors, the former State Party Chairman, five pro-Trump lawyers, one campaign worker, and, for good measure, former Trump Chief of Staff Mark Meadows.

The five lawyers charged included Rudy Giuliani, who was served at his 80th birthday party in Florida.  On May 18, 2024, John Eastman was arrested in Phoenix even though he had literally no communication with the would-be alternative electors in Arizona.  “These charges should’ve never been brought.  I pled not guilty.  I had zero communications with the electors in Arizona.  Zero involvement in any of the election litigation in Arizona or legislative hearings.  I’m confident that if the law is faithfully applied I will be fully exonerated at the end of this process,” Eastman said.

As conservative writer and radio personality Mark Steyn notes, “there is so little equality before the law in America that a central tenet of that equality — the right to a lawyer — is utterly dead.  If you make the mistake of representing Trump, you’ll be disbarred and/or criminally charged.”  He adds, “This is the criminalization of opposition — a core definition of unfree societies….” And by targeting conservative lawyers’ livelihood, they hope to create a battle where one side is not even allowed to fight back.

Editor’s Note: To read the articles in this series, please click here.

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