As John Eastman prepared to surrender last week to authorities in Georgia accused of trying to overturn the outcome of the 2020 presidential election in that state, he released a statement denouncing the criminal case. According to him, the action aimed to target lawyers “because of the diligent defense of their clients”.
Another defendant, Rudy Giuliani, made a similar statement. He said he was being sued because he was doing his job as Donald Trump’s lawyer. “I never thought that I would be sued for the fact that I performed the duty of a lawyer,” he said.
Fulton County District Attorney Fannie Willis used the Organized Crime Corrupt Organizations Act, known as RICO, to indict Mr. Trump and 18 other defendants on suspicion of participating in a conspiracy. broad, aimed at overturning the result of the 2020 elections in this state.
Among the 18 defendants charged along with Mr. Trump in Fulton County are more than six attorneys. The statements by Mr. Eastman and Mr. Giuliani appear to preface the tactics they intend to defend themselves with in an attempt to argue that they were merely doing their job as lawyers when they maneuvered on behalf of Mr. Trump to undo the election result.
The approach of the two lawyers suggests an opportunity to turn, at least part of the prosecution, into a ‘referendum’ on the boundaries of what is ethical or not in lawyering, starting with a case that once again highlights how they are confused over the years Mr. Trump’s lawyers, with his legal problems.
But while lawyers have ample opportunity to make unproven or unconventional arguments, experts say the “lawyers are just lawyers” defense will be challenging to prove a winner at a time when prosecutors can directly link them to the alleged criminal schemes, which are presented in the indictment. That includes efforts to set up false electors in Georgia and other states, who would falsely claim that Mr. Trump, and not Democrat Joe Biden, had won the election.
“The legal files are replete with examples of lawyers who have faced disciplinary action for allegedly representing their clients’ interests,” says Barry Richard, who represented George W. Bush’s 2000 presidential campaign when and was elected to the White House, after a legal dispute over which the Supreme Court ruled.
“Lawyers are required to follow very strict rules and there are certain things they cannot do for their clients. They cannot present to the court facts that they know are not true.”
A more complicated question, however, is how far lawyers can go in advancing legal theories, even those that do not enjoy strong support, to achieve a desired result for their client, says Stephen Saltzburg, professor of of Law at George Washington University and former Justice Department official.
“Bad advocacy” itself is not a crime, nor is “taking the pulse” when it comes to legal arguments, he says.
“The question that arises is, when does a lawyer cross the line, who knows that the legal theory he is supporting has never been accepted anywhere, and yet he says that this is okay,” Saltzburgu says. “This is a blurred border,” he adds.
Of course, lawyers are expected, as Mr. Eastman noted in his statement, to diligently represent clients—though he has admitted in private conversations that he expected the Supreme Court to unanimously reject a legal theory he advanced that Then-Vice President Mike Pence had the right to reject the electoral vote count.
The history of election-related lawsuits is long, but none is more famous than the 2000 battle in Florida between Democrat Al Gore and Mr. Bush. Prosecutor Jack Smith acknowledged the same in his federal indictment against Mr. Trump, saying he had the right, like any candidate, to file a lawsuit challenging the election results or procedures but through legal means.
In the Georgia indictment, prosecutors allege the lawyers went beyond traditional legal protections and engaged in criminal activity.
The indictment alleges, for example, that former Justice Department official Jeffrey Clark, who has denied the allegations, drafted a document he wanted to send to officials in Georgia, falsely claiming that tampering had been identified, that could have affected the outcome of the election in that state.
Another attorney, Sidney Powell, is also charged with conspiracy to illegally gain access to voting equipment in a rural county in Georgia.
