The Honor of the Legal Profession

Decades ago, when I went to law school, students were drilled about the importance of "process values" to the legal system and to society.  Citizens needed to be confident that a cause, win or lose, was heard with attention by competent and disinterested judges acting according to those general principles called "the rule of law."  Defeat would still sting, but not fester.

Inter arma enim silent lex is a familiar Latin aphorism meaning "amidst arms, law falls silent."

We need an aphorism expressing the complementary truth: "If law falls silent, arms will decide," because if process values are systematically ignored, then all hell can break loose.  In a recent article, the Serbian-American author said "as someone who (barely) lived through a civil war, [I know that they] begin when a faction decides it can no longer pursue its goals through the political, legal or economic means, as they have all been foreclosed to them."

My professors, who had seen the rise of the great totalitarian states, the consequent World War II, and the tensions of the Cold War, were very aware of the dangers. They regarded reverence for process values as fundamental to the honor of the legal professional.

Judging by the current election controversy, the legal curriculum has been reinvented according to woke principles, because the current legal establishment is not just indifferent to process values, but screechingly opposed.

Anyone who reads the complaint filed by Texas (and rejected by the Supreme Court) must conclude that there are serious reasons to believe that this election was characterized by massive fraud in certain swing states and that this fraud was prepared and executed by partisan party operatives who used litigation to erode mechanisms of ballot security and control of the counting to consummate the win.

Note that I do not claim that the evidence is conclusive, though I personally think it overwhelming.  I use the softer "reason to believe", which means only that it needs investigation.

A legal establishment dedicated to upholding process values would regard itself as honor-bound to demand an investigation of these charges.  If true, something must be done.  If false, their proponents need to be convinced and, even more so, the huge number of neutrals who don't know that to think.  Or, even if not convinced, social peace demands that these groups believe they lost only after fair, competent inquiry.

This is not the reaction of the real legal establishment, which is demanding not just that the charges not be investigated, but that any lawyer who represents the president be damned.

A group called Lawyers Defending American Democracy has collected 1,500 signatures on an open letter condemning lawyers who work for the president and calling for disciplinary action by bar authorities.  The letter, signed by prominent members of the legal profession, accuses the Trump team of making "wild fraud and conspiracy claims" that have been rejected by judges.

The financial base of LDAD is a mystery, but its head is a longtime Democratic operative and onetime D.A. in charge of the Amirault persecution, perhaps the most horrifying of the phony child abuse cases in the 1980s.  Another member of the Steering Committee is a retired partner of Covington & Burling, the elite D.C. law firm that billed General Michael Flynn millions of dollars while helping the government bludgeon him into pleading guilty to a crime that never occurred.  And so on — not exactly a good start for a group that wants to lecture on legal ethics.

The list of signers is indeed long, but I would bet that few of them have any serious knowledge of the controversy, given the blackout imposed by the MSM.  They are, with a high probability, calling for sanctions against other lawyers in a matter about which they are basically ignorant.  In any case, arguing that a cause is so benighted that no lawyer can ethically represent it violates a fundamental tenet of the profession that every cause should be represented, perhaps most especially those that the mob thinks benighted. 

LDAD is right that several judges have rejected the president's claims, but the judges have used procedural trumpery to avoid considering the claims on the merits and have expressed considerable irritation with the Trump team for raising them.

The Supreme Court dismissal of the Texas complaint was in the same vein.  The ruling said Texas lacked standing to defend its citizens' interest in an honest election in other states.  But every ragtag, foundation-funded group had been given standing to persuade judges to disrupt the election laws of many states.  No coherent law of standing exists, and the doctrine can, without undue cynicism, be seen as a tool by which politicized judges play favorites.  (See, e.g., Virginia House of Delegates v Bethune-Hill.)

LDAD is not the only entity that wants to suppress efforts to get to the truth of the allegations about the election, and one could easily compile a long list of calls for the professional disgrace of any lawyer who questions the election.  Any professor at any leading law school expressing sympathy for Trump's position, however qualified, could be a career-ender. 

And all the while, other appalling behavior by goes unnoticed.  Threats of economic harm and personal violence force lawyers for Trump to withdraw.  Witnesses to vote fraud are doxxed and blacklisted; state legislators are intimidated.  Lawyers are involved in all of this behavior, without censure by the establishment.

The legal establishment does not seem to grasp the long term consequences of its failure to uphold the profession's honor and integrity by supporting process values.

Millions of people believe, with good reason, that this election was stolen in the swing states. If the allegations receive an honest and searching inquiry from disinterested judges, these people will accept defeat, if that is how it turns out.

Other cases have been filed, and the courts, including the SCOTUS, may yet address the merits. If judges are too biased or cowardly to face the issues, then the law will indeed have fallen silent.

The consequences, not immediately but over the long term, will be ugly. Trump supporters will not rise in armed revolt, but the cynical betrayal of electoral honesty and legal honor will weaken the legitimacy of the legal and political systems.

For example, the U.S. electoral system depends on the integrity of thousands of local officials. My home county in Virginia is 70% red, but no one doubts that every election is run honestly. But how can this continue if it appears that the electoral systems of the cities are corrupt, and will not be fixed? Why should each election not become an exercise in competitive ballot stuffing? One must be a fool indeed to persist in being the only honest person in a crooked game.

Even more darkly, the loss of legitimacy will deprive our polity of the resilience needed to weather any serious crisis, and crises will indeed come, from some unexpected economic, foreign policy, or natural disaster.

At that point, we will also see the wisdom of the great lines from A Man for All Seasons:And when the last law was down, and the Devil turned around on you--where would you hide, Roper, the laws all being flat? This country's planted thick with laws from coast to coast--man's laws, not God's--and if you cut them down...d'you really think you could stand upright in the winds that would blow then? 

James V DeLong lives in the Shenandoah Valley. He is a former member of the board of editors of the Harvard Law Review.