Jack Smith's Indictment of the Entire Legal Profession [View all]

[marmar]

(Slate) The indictment of Donald J. Trump filed by special counsel Jack Smith on Tuesday is remarkable in too many ways to count. As Richard Hasen has argued, it may be the most important prosecution for American democracy that the nation has ever seen. And its outcome will inform not just the 2024 election but also the likelihood that future elections will result in the orderly, peaceful transfer of power.

It is for this reason that the singular role of lawyers in this particular indictment should not go unremarked on. All six (apparently unindicted) co-conspirators who are unnamed in the document appear to be attorneys. Several have been subject to state investigations or disciplinary actions for misconduct and misrepresentations around the 2020 election. And some of the most damning lines in the indictment come from other attorneys in Trump’s orbit who steadfastly stood up for the rule of law in the midst of the conspiracy, up to and including the Jan. 6 insurrection. One of the most chilling details of the indictment is an allegation that top Justice Department official Jeffrey Clark would have deployed the military to quell protests against Trump’s coup. After White House deputy counsel Patrick Philbin told Clark, “There is no option in which you do not leave the White House on Jan. 20,” Clark allegedly responded: “Well … that’s why there’s an Insurrection Act”—a law that would let Trump activate the armed forces against American citizens to achieve his seizure of power.

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Pay attention, because that will be the cohort that determines the future of American democracy. We need to name that camp and understand it, because the right flank of the legal profession has adamantly refused to police itself, and the legal profession as a whole has hardly raced to hold its most destructive and dangerous members to account. Leading players in the Jan. 6 indictment, including Eastman and Clark, were once luminaries of the Federalist Society, a network of conservative lawyers who hoist one another into positions of power. Yet the Federalist Society has consistently refused to denounce their complicity, or revoke their membership, or even condemn the coup itself. Instead, the conservative legal movement has welcomed these men—who have expressed no remorse for their actions—back into the fold. Lawyers on the right appear uninterested in exploring how colleagues who were once deemed most likely to succeed have overnight become most likely to be indicted. Might it be a problem that the movement’s pipeline produced lawyers who fought to prevent the peaceful transfer of power? Might it be a timely exercise in self-scrutiny to try to understand how that transpired?

Anyone who was shocked by the details of Smith’s latest indictment might also be surprised to learn just how much worse it could have been—because rogue lawyers, including movement judges, just barely lost a series of pivotal battles. The Wisconsin Supreme Court, for example, came one vote away from nullifying thousands of ballots, thus overturning Joe Biden’s victory in the state and setting the stage for the Legislature to assign fake electors to Trump. It failed only because a single member of the conservative majority, Justice Brian Hagedorn, refused to go along with his hard-right Trumpist colleagues. We are lucky that Hagedorn was principled enough to reject this plot under immense pressure and criticism from his own party. But the fate of free and fair elections should not rely on sheer luck. (Wisconsin voters this spring elevated the liberal Justice Janet Protasiewicz to their state Supreme Court, sending a signal that they generally prefer jurists who do not facilitate coups; Protasiewicz was sworn in on Tuesday, shortly before the indictment was unsealed.) .................(more)

https://slate.com/news-and-politics/2023/08/rudy-giuliani-co-conspirators-jack-smith-indictment.html