Stripping Conservative Right to Representation
By Bill Connor
One of the most fundamental rights as Americans is to be represented by an attorney at a trial or hearing. This right was so fundamental, it was included in our cherished Bill of Rights, along with the right to free speech, freedom of religion and right to bear arms. Our common law legal system, being an adversarial legal process, works with each side being allowed (within court rules) to “fight it out” in court. An impartial jury then renders a verdict through the adversarial process. If one side has legal counsel and the other does not, Lady Justice’s scales are tipped substantially to the represented side. It’s a reason we appoint legal counsel in criminal cases (and in some civil matters) for those who cannot afford it. The first, and primary, professional ethical rule for lawyers is to “zealously represent the client” and do everything within the ethics rules on behalf of the client. In America we are (or should be) taught to respect lawyers’ ethical duty of zealous representation, regardless of who is being represented. When that ethic is violated, all other rights are at risk, and justice is not served. With the 2020 elections challenge, and the impeachment trial of Donald Trump, that ethic has come under assault unlike any other time in American history, and we all must agree to stop it. Let me explain.
First, the 2020 presidential election challenges were the legitimate right to judicial redress of alleged elections illegalities. Despite media hype about “all cases being tossed out in court for lack of evidence”, that just wasn’t what has happened. Of all the elections challenges on Trump’s behalf, two-thirds (16 of 21) of the cases in which the courts reviewed the evidence (versus being dismissed on procedural grounds) were won by Trump’s side. Cases are still ongoing, and five cases are waiting to be heard by the Supreme Court (follow this link to the status of all the hundreds of cases filed in on behalf of Trump’s campaign, including the 17 cases won by Trump’s side). Despite the legitimacy, lawyers bringing these suits have been attacked unmercifully. Trump’s lawyers have had to endure withering assaults, not only in the media but by threats and grievances against their law licenses. As one example, the attorney general tweeted the following threat against attorneys representing challenges in Michigan: “Fun fact: Lawyers who practice in Michigan are required to take an oath to support the M.I. and U.S. Constitutions, not to file unjust and/or frivolous actions or mislead the court. The spate of Trump lawsuits in our state violates each of these tenets. It demeans our profession.” She posted the code of professional ethics to further elaborate her threat. Interestingly, that same attorney general tried to fight against the forensic audit of Antrim County voting machines, which turned out to have an exponentially higher ballot rejection rate than required. She also failed to investigate after the many sworn statements to suspected ballots arriving (by van) to the main counting center in M.I. around eight hours after voting ended. Through Freedom of Information Act requests, the video of the Nov. 4, 3:30 a.m. white van was released in Feb. 2021.
When Donald Trump began looking for attorneys to represent him in his impeachment trial, he ran into the results of the threats against lawyers taking his cases. From Bloomberg News: “Another reason for good lawyers remaining on the sidelines is the pressure being applied to law firms by interest groups such as the Lincoln Project, said Jonathan Turley, a constitutional-law professor at George Washington University Law School. Just days after the election was called for Biden, elite law firms such as Jones Day were being publicly berated for filing election challenges on behalf of Trump. ‘The harassment and doxing of lawyers has been unprecedented,’ Turley said. ‘What’s most concerning is that groups like the Lincoln Project have been funded heavily by lawyers who have supported the targeting of bar members for representing the president. It will be difficult for the president to assemble the legal team because of that intimidating environment.’ Big law firms admitted they would not allow associates to take elections challenge cases or Trump’s defense. Trump finally settled on three attorneys from big firms who were independent and willing to face the consequences.
Despite the advantage of the House managers over the tiny and unprepared Trump team, they sent over their evidence only after they had started their arguments supported by the evidence. This gave the Trump team only a few hours to review and became the equivalent of a legal ambush. The Trump team later discovered that the House managers had doctored evidence, including the changing of years on Tweets, doctored marking of Tweets and editing videos. The Trump team ultimately won acquittal for their client but paid a huge price for their “underdog” representation. According to Trump attorney Michael van der Veen, when asked about the consequences: “My home was attacked. I’d rather not go into it because it would encourage other people to do it more, but you know, I’ve had nearly 100 death threats … My home was attacked last night — windows broken, spray paint, really bad words spray-painted everywhere.” This included someone spray-painting the word “traitor” on Van der Veen’s driveway, which is in a residential section of Philadelphia. He also mentioned that his practice was “under siege.”
The media not only didn’t help Trump’s lawyers by discouraging the harassment: The day after this story broke, CNN ran a story reminiscent of the threats to the Michigan attorney general: “There may be Penalties for Trump’s lawyers. Here’s why.” In that story by CNN’s John Avlon, he alleged that Trump’s lawyers put forth falsehoods during the impeachment trial, like repeating Trump’s alleged false claims of elections fraud. Avlon argued that Trump’s lawyers violated Pennsylvania’s rules of professional conduct and put themselves at risk of punitive sanctions. Avlon’s claims are ironic considering the doctoring of evidence by the House manager attorneys. During the trial, Van der Veen had lamented the threats by a group of law professors who claimed that Van der Veen’s First Amendment arguments were “legally frivolous” and therefore could result in punitive sanctions against Trump’s lawyers. In publicizing this alleged unethical conduct of Trump’s lawyers, they are telling millions how to make a grievance against them and harm their careers — clearly a message to other lawyers.
These threats and harassment against conservative lawyers for representing clients is dangerous. Throughout history, we have praised the bold attorney willing to take an unpopular cause, like Atticus Finch in To Kill A Mockingbird, for the simple reason that we all want our fair day in court if accused. By stripping away representation through threats against attorneys, both justice and freedom are undermined in the gravest of ways. People become afraid to exercise rights that might be considered unpopular by a certain group for fear of unjust and unfair prosecution. Those in power are able to crush opposing political parties or views, and those in the crosshairs will be alone in court. With the coinciding attacks on free speech, liberty is under siege like never before. It’s up to all of us, from all political persuasions, to demand that when it comes to our courts we all get the same chance for justice.
Bill Connor is a 1990 Citadel graduate, 30-year Army infantry colonel and combat veteran. He is a writer and attorney and lives in the Charleston area.