As John Eastman prepared to surrender to Georgia authorities last week in an indictment related to efforts to overturn the 2020 presidential election, he issued a statement denouncing the criminal case as targeting attorneys “for their zealous advocacy on behalf of their clients.”
Another defendant, Rudy Giuliani, struck a similar note, saying he was being indicted for his work as Donald Trump’s attorney. “I never thought I’d get indicted for being a lawyer,” he said.
The 18 defendants charged alongside Trump in this month’s racketeering indictment in Fulton County include more than a half-dozen lawyers, and the statements from Eastman and Giuliani provide early foreshadowing of at least one of the defenses they seem poised to raise: that they were merely doing their jobs as attorneys when they maneuvered on Trump’s behalf to undo the results of that election.
The argument suggests a desire to turn at least part of the sprawling prosecution into a referendum on the boundaries of ethical lawyering.
But while attorneys do have wide berth to advance untested or unconventional positions, experts say a “lawyers being lawyers” defense will be challenging to pull off to the extent prosecutors can directly link the indicted lawyers to criminal schemes alleged in the indictment. That includes efforts to line up fake electors in Georgia and other states who would falsely assert that Trump, not Democrat Joe Biden, had won their respective contests.
“The law books are replete with examples of lawyers who were disciplined for claiming they were representing their clients,” said Barry Richard, who represented George W. Bush’s winning presidential campaign in 2000 in a dispute ultimately decided by the Supreme Court. “Lawyers are required to follow very stringent rules of propriety. And there are certain things you can’t do for your clients. You cannot tell the court facts you have reason to know are not true.”
A more complicated question, though, is how far lawyers can go in advancing legal theories — even poorly supported ones — to achieve a desired outcome for a client, said Stephen Saltzburg, a George Washington University law professor and former Justice Department official.
“Bad lawyering” in and of itself is not a crime, nor is “testing the waters” of legal arguments, he said.
“The real question is, at what point does a lawyer who knows that the legal theory that that lawyer is espousing has never been accepted anywhere — when does the lawyer cross the line if the lawyer suggests sort of that it is OK, that it’s clearly OK?” Saltzburg said. “And that’s a fuzzy line.”
Of course, attorneys are expected, as Eastman noted in his statement, to zealously represent clients — though he did privately acknowledge that he anticipated the Supreme Court might unanimously dismiss a legal theory he advanced that then-Vice President Mike Pence was entitled to reject the counting of electoral votes.
There’s also a long history of election-related lawsuits, none more famous than the 2000 Florida fight between Democrat Al Gore and the Bush campaign. Justice Department counsel Jack Smith acknowledged as much in his own federal indictment against Trump, saying he was entitled like any candidate to file lawsuits challenging ballots and procedures and contest the results through other legal means.
But the Georgia indictment lists numerous acts in which prosecutors allege that lawyers went beyond conventional legal advocacy and engaged themselves in criminal activities.
It alleges, for instance, that former Justice Department official Jeffrey Clark — who has denied any wrongdoing — drafted a memo he wanted to send to Georgia officials falsely claiming that fraud had been identified that could have affected the election outcome in that state. It also accuses another lawyer, Sidney Powell, of plotting to illegally access voting equipment in a rural county in Georgia in an attempt to prove voting fraud claims.
And the indictment says multiple other lawyers — including Kenneth Chesebro, Giuliani and Eastman — were involved in discussions about enlisting fake electors in battleground states won by Biden in place of the legitimate ones. A lawyer for Chesebro has said that each allegation against him related to his work as an attorney; lawyers for Powell declined to comment Tuesday.
“The difference here is between recommending to the client that it may be possible to appoint electors other than those identified by the secretary of state, and then the client does it or doesn’t do it,” said Stephen Gillers, a legal expert at New York University. “It’s different when the lawyer himself or herself proceeds to follow that advice.”
He added: “The lawyer as actor, as opposed to the lawyer as advocate, gets less freedom to trespass on legal principles.”
Richard, who represented the Bush campaign in 2000, said there was no fair comparison to those legitimate court challenges of that era and the alleged misconduct 20 years later. The fighting then was done in court, and once the Supreme Court ruled, the matter was considered resolved.
When it came to that decision, Richard said, “I remember people said to me, ‘How is anybody going to govern after this?’ I said, ‘The Monday after this is over, everybody will go back to work, and everybody will acknowledge that we have a president’ — and that’s exactly what happened.”