Outlaw lawyers and outlaw presidents: A brief history of legal perfidy

State crimes committed by outlaw lawyers who endanger the rule of law on behalf of a president (or, in the current instance, a former president) are not without precedent in modern American history. Most recently, such crimes have happened under the “law and order” administrations of Republican Presidents Richard Nixon, Ronald Reagan, George W. Bush and Donald Trump. 

To be specific, “outlaw lawyers” describes attorneys who have abandoned the practices of representing or counseling clients consistent with their oaths to support the Constitution and laws of the United States as well as those of all states where they are licensed to practice.

For the purposes of this examination, Reagan and his vice president, George H.W. Bush (the chief architect of the Iran-Contra affair), along with George W. Bush more than a decade later, are bracketed and set aside. That’s primarily because their state crimes were international in scope — which certainly is no excuse, but posed no viable or practical threat to the domestic rule of law or to American democracy as such. 

Let’s consider the two relevant domestic case studies, one of them still very much a work in progress. With respect to the threat to the rule of law and American democracy, Nixon’s Watergate scandal pales in comparison to Trump’s failed coup. We can also say that in the case of Nixon and his outlaw lawyers, justice was swift and relatively unforgiving. In the case of Trump’s outlaw lawyers, justice has already been delayed too long, and the verdict is still out on how much legal accountability will materialize.  

There are at least five lawyers among the unindicted co-conspirators mentioned in Jack Smith’s Aug. 1 indictment of Donald Trump on charges related to the Jan. 6 Capitol attack and the attempt to overturn the 2020 presidential election. In addition, the related Georgia RICO indictments of Trump and 18 co-defendants on Aug. 14 involve a roster of alleged lawless lawyers, including but not limited to Rudy Giuliani, John Eastman, Jenna Ellis, Sidney Powell and Kenneth Chesebro. The multiple overlapping conspiracies laid out by Fulton County District Attorney Fani Willis, supported by a broad array of evidence, appear far more threatening to our rule of law and constitutional democracy than were the Watergate crimes.

What makes the failed coup attempt by Trump and his co-conspirators much more serious than any previous threat to American democracy since the Civil War is that the Republican Party’s infrastructure and its majority in the House of Representatives, along with many members of the U.S. Senate, are all-in on defending these crimes and in supporting an anti-democratic and authoritarian agenda. 

This anti-democratic agenda is visible not only in the fact that Trump has already more or less secured the 2024 GOP presidential nomination (whether or not he is convicted of a crime and sent to prison), but also in the continuing “extracurricular” activities in red states, including disenfranchisement, restricting voter access, and overtly racial or partisan gerrymandering in Alabama, Wisconsin and various other states. 

To be sure, serious crimes were committed during Watergate. Nixon’s team of former CIA operatives broke into Democratic Party headquarters (at the Washington office complex that lent the scandal its name), and then Tricky Dick and his lawyers worked to cover up the president’s connection to the burglary with a list of criminal activities that included wiretapping, political spying, sabotage and the destruction of evidence.

As with the financing of Trump’s Jan. 6 coup effort, still under investigation by Jack Smith, the Watergate break-in was largely financed from illegally laundered contributions channeled through Nixon’s re-election campaign and directed by its officials. The final outcome, of course, was the first and only presidential resignation in our history, the penultimate chapter of an apparent deal to avoid criminal prosecution that concluded with a presidential pardon from Gerald Ford, Nixon’s successor.  

In the current context, it’s well worth reviewing the punishments applied to Nixon and his band of outlaw lawyers, as well as the implications of the meager criminal sanctions with respect to its deterrent value in the Trump era. Presumably the goal was, or at least should have been, to set the value of sanctions at a level sufficient to ensure that future presidents would find it more difficult to convince outlaw lawyers to come up with ever more innovative ways to steal an election or overturn the government.   

Of the 15 Watergate lawyers who faced criminal charges, most were suspended from practicing law for at least some time, while a number, including former White House counsel John Dean — who became an important witness against the president — were disbarred. Nixon himself was also disbarred, although after Ford’s pardon he could not be charged with any alleged crimes committed as president. 

Some of the disbarred attorneys sought to rejoin the legal profession, without much success. Most notably, former Attorney General John Mitchell tried to get his law license back while appealing his convictions on numerous charges, including obstruction of justice, conspiracy to defraud the United States, and making false statements to Congress and the grand jury. In denying his request in 1976, a New York appellate court wrote that for Mitchell “to continue to appear in our courts and to continue to give advice and counsel” would “invite scorn and disrespect for our rule of law.”

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Three years after the Watergate convictions, U.S. District Judge John J. Sirica reduced the prison sentences of Mitchell, former White House chief of staff H.R. Haldeman and former Nixon aide John Ehrlichman, cutting their maximum terms in half. All three were eventually paroled after serving one year in federal prison. 

As we begin to lurch forward and perhaps out of the Trump era, his outlaw lawyers, if and when convicted, should face ethics proceedings, legal sanctions, permanent disbarment and more than token punishments. None of the attorneys involved in Trump’s “fake elector” schemes has yet faced trial, but four of the five unindicted co-conspirators identified by Jack Smith’s federal indictment already face ethics proceedings likely to end their legal careers. The one exception is Kenneth Chesebro, who is also a defendant in the Georgia RICO case, although New York officials have already barred him from practicing law in that state.

Giuliani, Eastman, Powell, Ellis and several others face current disbarment proceedings in New York, California and Washington, D.C. 

For the moment, Trump’s outlaw attorneys have all pleaded not guilty in Fani Willis’ RICO case. Time will tell how many of them may later adjust their pleas in order to stay out of prison. There is considerable speculation in that regard surrounding the aforementioned Kenneth Chesebro, who faces trial next month alongside alleged co-conspirator Sidney Powell.

Now that Judge Scott McAfee has severed the Chesebro-Powell trial from those of Trump and the 16 other co-defendants, it may be a long time before we see other accused defendants cutting deals or turning state’s evidence. 

In the final analysis, Trump’s attempted subversion of democracy would not have been possible without his posse of accomplices and enablers, as Steven Levitsky and Daniel Ziblatt argue in their new book, “Tyranny of the Minority: Why American Democracy Reached the Breaking Point.”

While more than 1,000 people have been charged so far for the Capitol insurrection of Jan. 6, with more than 700 convicted and sentenced — including long prison sentences for leaders of the Oath Keepers and Proud Boys — the majority of House Republicans who voted against the certification of Joe Biden as president have not been held accountable. They and the rest of the GOP continue to support the antidemocratic, authoritarian and criminal behavior of Donald Trump, as well as that of his outlaw attorneys.  

If and when the day finally dawns when Trump and his lawless lawyers are found guilty of crimes against American democracy and the rule of law, their punishments must be severe. Not out of any desire to seek revenge or inflict individual suffering, but simply in order to deter future wannabe dictators and their criminalized attorneys.