Prosecuting Lawyers for Their Legal Representation Is Dangerous to Us All | Opinion

"How in God's name could so many lawyers get involved in something like this?"

That question, asked by John Dean about Watergate half a century ago, is again being asked about the Jan. 6 indictments involving lawyers who were associated with Donald Trump's wrongheaded attempts to challenge the 2020 presidential election. But there are considerable differences among the roles lawyers were alleged to have played in the two situations: the Nixon lawyers were generally accused of conduct outside of their professional roles as advice-givers and litigators. They were charged largely with participating in crimes such as bribery, planning and covering up an illegal break-in and other acts of obstruction of Justice. Some of them just happened to be lawyers, but they could just as easily been lay people committing criminal acts. They didn't commit their crimes as lawyers.

The lawyers who are currently indicted or were included as unindicted co-conspirators were, at least in part, accused based on their rendering legal services: giving legal advice, filing lawsuits on behalf of clients, and making statements, both oral and written, as part of their legal representation of clients. That is why these charges are much more questionable and controversial than the ones that were brought against former Attorney General John Mitchell, former White House counsel John Ehrlichman and other Nixon aides who were lawyers.

It is true, and important, that a license to practice law is not a license to commit crimes. But it is a license to explore and press controversial, even extreme, legal claims and to challenge existing legal precedents in the interests of one's clients. Creative lawyers generally lose their cases because law is a conservative enterprise that relies on past precedents and is resistant to change. But lawyers should be encouraged to push the envelope. That is how progress (and sometimes regress) is achieved in the legal system. The adversary system of justice is based on constant confrontation and challenge.

To be sure, lawyers can sometimes go too far in failing or refusing to accept binding and well-established precedents or existing rules, by bringing lawsuits for improper purposes, such as delay or extortion, or by lying to the court.

But the lines between acceptable and unacceptable legal challenges are generally too uncertain to warrant criminalizing what in retrospect may have been a mistake in judgment or overzealousness.

Thomas Jefferson once quipped that for a criminal law to be fairly applied, it must be so clear that a reasonable person could understand it if he read it "while running." Well, I have read, while comfortably sitting, the criminal charges against attorneys John Eastman, Kenneth Chesebro, Rudolph W. Giuliani, Sidney Powell and others, and based on 60 years of teaching and practicing criminal law, I do not understand in all cases the line between zealously mistaken advocacy and criminal conspiracy on which these indictments seem to be based. Yes, the courts rejected the legal challenges based on current law but losing a case—even losing badly—should not be a crime. To criminalize advice and advocacy that turns out to be wrong, misguided, or even false will chill lawyers from bringing out-of-the-box lawsuits that might someday prevail and change the law.

Lawyers, like the law itself, tend to be cautious, especially regarding their own tolerance of risks to their careers. If they must consider not only their client's best interest, but their own possible exposure to criminal liability, they will refrain from giving risky advice or bringing questionable lawsuits. Judges can quickly reject improper suits—as most did with regard to the Trump suits—so little harm beyond inconvenience is caused by their being brought. But a lawyer failing to bring a questionable suit that might have changed the law could have serious, if largely invisible, consequences for all Americans.

So, the balance of public interest lies with more not fewer challenges to existing law, even if some are unmeritorious. It also lies with not expanding the criminal law to reach questionable conduct that is not clearly illegal under existing precedent. The irony is that the current prosecutions of lawyers for giving advice and commencing litigation that is beyond existing civil law, are themselves based on prosecutors creatively seeking to expand existing criminal law beyond current precedents. And there is more justification for seeking to expand the civil law than for retroactively stretching the criminal law.

The prosecutions against Trump's former lawyers will be vigorously defended against by their lawyers. But bar associations and civil liberties groups should be heard as well, because the unjustified prosecution of lawyers for advising their clients and litigating on their behalf—even if overzealously—endangers the adversary system of justice and thus the rights of all Americans. (I am litigating against a bar complaint brought against me by The 65 Project—an organization that targets lawyers who have defended Trump or anyone associated with him—based on a sanction for challenging the future use of voting machines by a company that refuses to subject them to adversarial testing).

The Shakespearian villain Dick the Butcher advised: "The first thing we do, let's kill all the lawyers." Tyrants such as Hitler, Stalin, Russian President Vladimir Putin, Pol Pot, and Fidel Castro took that advice and targeted lawyers who challenged them. Prosecuting opposition lawyers for challenging the incumbent administration is a dangerous first step away from the rule of law. So, the law and facts should be crystal clear before such prosecutions are authorized. There is real doubt whether this standard has been met in these criminal prosecutions.