Since Election Day, lawyers acting on behalf of President Trump have lost nearly 60 election lawsuits. Even with the Electoral College’s vote on Monday confirming Joe Biden’s win, Trump has made it clear that he has no intention of ending his lawless efforts to overturn the election and upend our democracy.
But what about the lawyers fighting on his behalf? Their claims have been rejected as baseless by at least 86 judges — of all political backgrounds. In case after case, these lawyers have turned their backs on the professional standards they must meet and the oath they took to become a member of the bar.
If disciplinary authorities do not address the attorneys’ ethical violations, the rules of professional conduct will be regarded as a meaningless standard to other lawyers and to the public.
Those rules require lawyers to have a good faith basis to believe they will be able to prove the allegations advanced in a lawsuit. Yet many claims filed by Trump’s lawyers lacked any factual basis.
Consider the opinion of federal Third Circuit Court of Appeals Judge Stephanos Bibas, a Trump appointee: “Charges require specific allegations and then proof. We have neither here.” In Wisconsin, a federal judge called the Trump legal claim “bizarre.”
Attorney General Ken Paxton of Texas, who is under indictment for fraud, led 18 Republican state attorneys general and 126 Republican House members in filing a Supreme Court petition making preposterous assertions of one state’s right to challenge another’s election results. Constitutional scholar Garrett Epps called Paxton’s lawsuit “a deliberate effort to destroy American democracy for political advantage.”
Following the petition’s summary dismissal on Friday, Pennsylvania Attorney General Josh Shapiro said he might ask the Supreme Court to sanction the state AGs who filed the suit. Judges in Arizona and Pennsylvania cases have hinted that sanctions against the attorneys filing frivolous actions may be appropriate.
While judges often hesitate to impose financial penalties on lawyers for first-time offenses in their courtrooms, referrals to licensing authorities are more frequent. The American Bar Association’s Model Rules of Professional Conduct 3.1, adopted in one form or another by states throughout the country, provides: “A lawyer shall not bring or defend a proceeding unless there is a basis in law and fact for doing so that is not frivolous.”
In addition, all lawyers take an oath obliging them to uphold the Constitution. Unfounded legal actions on behalf of a losing presidential candidate to overthrow the most secure election in American history violate that oath.
Whether courts refer these attorneys or not, the licensing authorities within each state generally have the authority to examine attorney misconduct. They should investigate the state attorneys general, lawyers for the president, and members of Congress who are lawyers and who signed on in support of these frivolous suits.
A Dec. 14 statement from Boston-based Lawyers Defending American Democracy, a nonpartisan rule-of-law advocacy group we help lead, calls for such investigations. It also condemns the lawyers’ conduct, saying it “brings shame on the nation, our profession and the public officials who participated in this unethical and anti-democratic action.”
Such investigations would likely be unprecedented. But so is attorneys’ and elected officials’ abuse of the courts to undermine our most sacred democratic right: the vote. Trump and his lawyer enablers are trying to disenfranchise millions of fellow citizens.
Separate from these disciplinary efforts, one other critical tool remains for every citizen to exert their own opportunity for justice. When voters next go to the polls to elect their attorneys general and members of Congress, they should remember this shameful episode in our history. They should vote for candidates who will uphold their constitutional oaths.
Our Republic is endangered when its legal system is exploited by those seeking to enhance and retain their party’s power without regard to the legitimately cast votes of other Americans.
Scott Harshbarger was a two-term Massachusetts attorney general and former president of the National Association of Attorneys General. Lauren Stiller Rikleen is author of “The Shield of Silence: How Power Perpetuates a Culture of Harassment and Bullying in the Workplace” and a former president of the Boston Bar Association. Dennis Aftergut is a former federal prosecutor and Supreme Court advocate. All are steering committee members of Lawyers Defending American Democracy.