The left’s goal is to publicly shame lawyers who assisted in legal challenges to the 2020 presidential election and to deter legal talent from assisting in any future GOP election challenges.
“The first thing we do, let’s kill all the lawyers!”
Dick the Butcher’s famous line in Shakespeare’s play King Henry VI, Part 2 was an acknowledgment that despots – in that case, Jack Cade, an anarchist seeking to overthrow the government – must sideline those who defend the rule of law in order to achieve their authoritarian goals.
Today’s political left has adopted this view with a twist – they want to eliminate all lawyers who represent anyone right of center.
They may not be trying to literally kill those lawyers, but they are targeting them with the goal of extinguishing their ability to practice law.
Over the years, this effort has gained steam.
In 2020, then-Attorney General Bill Barr was the subject of a disciplinary complaint brought by a leftwing organization called Lawyers Defending American Democracy. Among other things, that complaint alleged that Barr violated attorney ethics rules by “overseeing and ordering the forcible dispersal of peaceful protesters in Lafayette Square by police and military forces” so President Trump could have a “photo op” at St. John’s Church.
Of course, that allegation was blatantly untrue.
The following year, the New York State Bar Association expelled Rudy Giuliani from its membership for representing Trump in connection with several post-election challenges. New York State and the District of Columbia suspended his law license soon after, after Lawyers Defending American Democracy filed a disciplinary grievance against him.
Then, Michigan Attorney General Dana Nessel and Governor Gretchen Whitmer, and Secretary of State Jocelyn Benson, all Democrats, requested that the State Bar of Texas disbar Trump attorney Sidney Powell.
More recently, the House Jan. 6 Committee subpoenaed thousands of emails that Trump attorney John Eastman sent to to the president regarding the counting of electoral votes. When Eastman sued to block the disclosure, asserting attorney-client privilege, the House Committee responded that Eastman’s communications with President Trump fell within the “crime-fraud” exception to the privilege, and therefore could not be shielded from disclosure.
In other words, the government took the position Eastman’s legal advice not only a violated attorney ethics rules (so far, two bar complaints have been filed against him – see here and here) but that it also constituted criminal activity.
Now, Axios reports that a dark money group with “ties to Democratic Party hea vyweights” is working to disbar over 100 lawyers who worked on President Trump’s post-election lawsuits.
The organization is called “The 65 Project,” and is named after the number of lawsuits that were brought challenging the 2020 presidential election.
On their website, The 65 Project describes itself as “bipartisan,” yet the advisory board of the group is overwhelmingly made up of far left zealots and Clinton acolytes.
The organization was created by Utah attorney Michael Teter, a former civil rights attorney, advisor to the ACLU of Utah and Democratic Party activist.
Its advisory board includes former Democratic U.S. senator Tom Daschle. Daschle is currently the Chair of the Board of Directors at the progressive Center for American Progress, a George Soros-funded think tank founded by John Podesta, the former White House Chief of Staff for President Bill Clinton and chair of Hillary Clinton’s 2016 presidential campaign.
The board also counts among its members retired Utah Supreme Court Chief Justice Christine Durham – an ultra-liberal jurist – and a former president of the far left American Bar Association, Roberta Cooper Ramo.
Law professor Renee Knake Jefferson also serves on the board. Jefferson authored a law journal article last year pressing for the disbarment of lawyers who dared challenge the 2020 presidential election and asserting that “[l]awyer lies” were “a hallmark of the Trump Administration.”
One of The 65 Project’s “senior advisors” is David Brock, a close confidant of Hillary Clinton and a prolific fundraiser for the Democratic Party. Brock is also the founder of Media Matters for America – a leftwing media watchdog organization whose very raison d’etre is to assail conservative journalists and media outlets. He’s also the founder of the super PAC American Bridge 21st Century, which conducts opposition research for the Democratic Party.
The other “senior advisor” for the group is Melissa Moss, a former Clinton administration official and former finance director of the DNC.
In order to justify the “bipartisan” label, this group of radicals added Paul Rosenzweig, a former George W. Bush administration official, to its advisory board. But Rosenzweig’s inclusion hardly renders the group bipartisan in any true sense. He is a proud “Never Trumper” who left the Republican Party in 2016 when Trump was elected president. He signed on to a letter from 1,000 former federal prosecutors asserting that Trump committed criminal obstruction of justice, and he publicly called for President Trump’s impeachment and removal.
The group plans to invest $2.5 million in its first year as it targets 111 lawyers across 26 states who were involved in Trump’s post-election lawsuits.
In their opening salvo, The 65 Project hit 10 lawyers with ethics complaints. These included D.C. attorney Cleta Mitchell, who was one of three lawyers representing President Trump during his Jan. 2, 2021 phone call with Georgia Secretary of State Brad Raffensberger, and Wisconsin attorney Michael Hitt, who served as the chairperson for Wisconsin’s set of alternative Republican electors.
Former Trump campaign lawyer Joseph diGenova also has been targeted by the group because he remarked hyperbolically that U.S. cybersecurity official should be “shot” for saying that the 2020 election “was the most secure in American history.” Trump attorney Jenna Ellis and special adviser Boris Epshteyn made the hit list, too.
The group’s ethics complaints against these lawyers predominantly condemn them for engaging in political speech that is protected under the First Amendment. To be sure, certain categories of speech – fighting words, true threats, obscenities and defamation –land outside the ambit of the First Amendment, but the remarks for which these lawyers are being targeted were none of these. Rather, they addressed the most political of topics, the U.S. presidential election and the integrity of the voting process.
(And even if some of these statements were later found to be untrue, they still were constitutionally protected. In Hustler Magazine v. Falwell, then-Chief Justice Rehnquist, writing for the majority, explained that falsehoods “are inevitable in free debate, and a rule that would impose [punishment] for false factual assertions would have an undoubted chilling effect on speech.”)
Nevertheless, The 65 Project claims that these and other varmint GOP lawyers must be disbarred for “engag[ing] in fraudulent and malicious lawsuits to overturn legitimate election results and fuel insurrection.”
But this presupposes that the GOP lawyers involved in these lawsuits actually believed that the election results were legitimate in the first place, and that they brought litigation as part of a deliberate misinformation campaign to deceive the American public into believing that the election had in fact been stolen. And, oh yeah, that they did so purposefully to foment an insurrection.
These allegations could never be proved, but that’s beside the point. The 65 Project’s primary objective is simply to intimidate Republican lawyers from prospectively providing legal assistance to their party’s candidates.
David Brock said as much. He told Axios that a main purpose of the group is “not only bring the grievances in the bar complaints, but [to] shame [lawyers] and make them toxic in their communities and in their firms.” He added, “I think the littler fish are probably more vulnerable to what we’re doing,” because The 65 Project is “threatening their livelihood …. [a]nd, you know, [their] reputations in their local communities.”
Simply put, the group’s goal, as Axios correctly described it, is “to deter right-wing legal talent from signing on to any future GOP efforts to overturn elections — including the midterms or 2024.”
In that regard, the group is engaging in what’s known as “lawfare” – using legal challenges as a weapon of conflict. They’re not doing so to “protect democracy” as they self-righteously declare, but to protect the Democratic Party.
Indeed, if these lawyers were truly committed “to protect democracy from the threat posed through abuse of the legal system”– as their website claims with high dudgeon they are – or if they were legitimately bipartisan, they would have brought grievances against attorneys Hillary Clinton, Marc Elias, Michael Sussman, and Kevin Clinesmith among others, for their roles in promoting the Russian Collusion hoax, abusing the FISA process, and spying on a U.S. president.
Don’t hold your breath.
The 65 Project’s attacks against GOP lawyers lines up neatly with other Democratic Party initiatives, like pushing D.C. statehood, partisan gerrymandering, eliminating the Electoral College, and invoking the Fourteenth Amendment to knock Republican candidates off the ballot – all of which are designed to give the Democrats electoral advantage without having to compete in the marketplace of ideas.
But this particular strategy is not without its Achilles’ heel. The use of the attorney grievance process to intimidate lawyers from helping Republican candidates it is itself tortious and sanctionable.
At common law, a person engages in malicious abuse of process when he: (1) employs legal process to compel performance or forbearance of some act; (2) with an intent to do harm; and (3) in order to obtain a collateral objective outside of the legitimate ends of the process.
By initiating disciplinary proceedings against GOP attorneys in order to harass them and chill their assistance in future election contests, The 65 Project’s members appear to be actively engaging in multiple instances of abuse of process for which they can and should be sued in court for compensatory and punitive damages.
Moreover, such behavior transgresses the ethical canons to which lawyers are obliged to adhere – and most of The 65 Project’s advisors are attorneys.
For example, Model Rule 8.4 provides that it is professional misconduct for a lawyer to “engage in conduct that is prejudicial to the administration of justice.” The 65 Project’s activities fit that bill. Similarly, certain states’ disciplinary rules provide that attorney conduct can be sanctioned if “it is undertaken … to harass or maliciously injure another.” That certainly seems to be what The 65 Project is doing here.
The Ninth Circuit has declared that “there are two, or more, sides to a story or a situation,” and that having lawyers on each side is “not merely a necessity but a blessing.” Without them, said the court, “the justice system itself will wither.” But for The 65 Project, that’s a small price to pay for leftwing entrenchment.
It’s time for the lawyers being targeted by this hateful group to take a lesson from President Trump and start counterpunching hard.DONATE
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