Beware of Bad Lawyering

Jason Rosensweig is Director of Chicago for the Shalom Hartman Institute of North America, and a Commissioner on the Illinois Commission on Discrimination and Hate Crimes. He holds a PhD from the University of Chicago.

Bad law and bad lawyering have become a problem for our country. Lawyers are responsible for much of what makes our country great, prosperous, and powerful – but they also hold the keys to our undoing.

This point was seen and emphasized with perspicacity as far back as 1835, by Alexis de Tocqueville, who wrote that “the authority [Americans] have entrusted to members of the legal profession, and the influence which these individuals exercise in the Government, is the most powerful existing security against the excesses of democracy,” and that by its nature the legal profession has a tendency to lean aristocratic (now we might say “elitist”), and anti-democratic.

It is a common refrain among many the last few years that the law is only as meaningful as the following of the norms that uphold it and make it possible. And that, thus, often those laws can be cast aside by the indifference of well-placed actors – say, a state Secretary of State, a vice president, or an attorney general.

But a less common idea is that it is often the work of corrupt lawyers that makes such law-negating events possible. The case of John Eastman is both concerning and illustrative. 

Eastman has recently gained notoriety as the brain behind much of Trump’s post-election scheming, and, it would seem, is one of the people in Trump’s inner circle currently most vulnerable to prosecution for the events of Jan 6.

He comes well-credentialed in the trappings of the legal and academic elite, with premier graduate degrees, clerkships with Clarence Thomas and Michael Luttig, a professorship and deanship (until-recently)at Chapman University, and a key position at the Claremont Institute. But he is also a cautionary tale about the uses and abuses of those credentials and the attendant expertise they generally indicate.

In August of 2020, just days before two major parties were set to hold their conventions at which they would officially nominate their candidates for president and vice president, Eastman, at the time fairly obscure outside conservative legal circles, wrote an op ed for Newsweek about the eligibility of one of those candidates. In this op ed, which caused a brief stir, John Eastman put forth the legal argument that Kamala Harris was ineligible for the presidency on the grounds that she wouldn’t pass the native-born test from Article II of the Constitution, despite her being born in Oakland.

Without going fully into the legal technicals, Eastman argues that regardless of Harris being native-born, if her parents were not citizens or lawful permanent residents of the United States at the time of her birth, she wouldn’t count as native-born – despite long-settled jurisprudence and precedent to the country, as well as the 14th Amendment’s clear statement that “all persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States.” 

In this Newsweek piece, Eastman’s xenophobic worldview is clear, if thinly veiled, and he explicitly invokes the fear of “dual loyalty,” not only as a concern that some might have for Harris, but (baselessly) also that this concern was the motivation for the original clause in Article II.

I found that article deeply alarming, seeing again the moral turpitude of birtherism and dual-loyalty fear-trafficking — issues of potence and with much history in the Jewish community, the Asian-American community, and numerous others. He puts forth this argument, at a crucial and sensitive point in our political process, despite plain textual reading and precedent to the contrary. Part of the defense is surely that proposing arguments is part of the game of ideas, especially in a free society. I take to heart the beautiful vision of such an organic and positive shared liberty. But that does not mean that individuals cease to have responsibility for the things they say, propose, circulate, and the ways that they try to contort the letter and the spirit of laws.

Within weeks of publishing that piece, Eastman began advising President Trump in the lead up to the election. It is Eastman who, aided by another well-known legal mind bent on serving a president’s personal will, helped come up with such clever ideas as that it was “legal” for the vice president to decide to reject states’ elector slates. As a pretty pure illustration of “bad faith law,” according to Mike Pence’s former counsel Eastman acknowledged that the Supreme Court would reject the idea unanimously, 9-0, but did not see that as a reason Pence shouldn’t refuse to certify the results. 

Eastman’s behavior and thinking in both these cases combine a forceful legalism (and legal casuistry) with no-holds-barred, ends-justify-means, power-partisan politics. In both cases Eastman is trying to play within the rules of the law game, or at least appear to be, with indifference to the bad-faith lawyering and partisanship. 

I do not know John Eastman, but the common thread between these two moments — using spurious legal theories to delegitimize an upcoming election, and using spurious legal theories to delegitimize a past election, illustrates something profound of which I urge us to take note: the law is a beautiful thing, as is the American legal system in all its flawed glory, as is the (however flawed) way in which our vast country by-and-large follows those laws. And, like a mole at a spy agency or in a military command, small numbers of well-placed bad lawyers can wreak a lot of sabotage.

When bright lawyers with great expertise turn their legal training and talents to find minimally viable arguments and distortions of law and legal tradition in service of narrow ends, forsaking any concern for the other consequences and the effect on the whole and the common good, it poses a deep threat to our legal system and social order. When I see political parties and campaigns, of all flavors, preemptively marshaling squadrons of lawyers with the intent to indiscriminately contest any coming results, I feel this particular strain of legal dismay.

The law *can be a powerful force against chaos and for justice, good, and virtue. And the law can be a great place of commonality, where we all feel respected and can exercise our rights, manifesting the power of collective organization and shared participation in the same endeavor. But bad faith law and appeals to rules and arcana sow mistrust and degrade the integrity of all our shared institutions and government.

We must take this responsibility held by attorneys, legal scholars, and judges seriously. Many lawyers have refused to represent these clients and causes, and some who have faced discipline from bar associations. Law schools, bar associations, ethics boards, and potentially state legislatures should make meaningful investments in educating lawyers in the importance of the purpose of law and the virtues required to uphold it, and in holding lawyers accountable for their unethical behavior and bad-faith conduct. 

The danger of bad-faith lawyering is not only that it can lead to such manic and dangerous events as January 6, but also that it undermines law and the social order itself. This sin is a bipartisan affliction that seems to be growing, perhaps aided by the concurrent decay of public trust and faith in our institutions. People need to have at least some faith that the system will hold, laws will be followed and people will be, mostly and especially when it matters, held accountable for breaking them.

One thought on “Beware of Bad Lawyering

  1. I agree with Mr. Rosensweig the Professor Eastman gave the advice that Mr. Trump wanted to hear rather than sound legal advice. However, the 14th Amendment provides poor guidance regarding US Citizenship, and he’s wrong to dismiss Eastman’s challenge to the Citizenship of Kamala Harris as being purely in bad faith. In 1868 most members of the Indigineous Tribes were not classified as US Citizens, even though they were born on US soil. That’s why the clause “and subject to the jurisdiction thereof” was included as a qualifier to the citizenship clause.

    Even before the 14th amendment, Article 1, Section 2 instructs that “Indians not taxed” are excluded from the census in the determination of representation in the House. Of course, that clause is moot today, but it wasn’t until 1924 that all Indigineous were made citizens, despite being born on US soil!

    Therefore, the legislative history on US Citizenship is not as clear cut as Mr. Rosenweig casually assumes. Even though precedence and stare decisis leaves no doubt that Vice-President Harris is a US Citizen, it’s not an open and shut case worthy of summary dismissal.

    John McCain was born on a US Army base in Panama, and both his parents were US Citizens. He was not born on US Soil, but he was still classified as a citizen. Under a strict reading of Section 1 of the 14th Amendment, he was not a US-born Citizen, but rather by naturalization under laws enacted by Congress. Therefore, a strong case could be made that he was less eligible for the Presidency than Ms. Harris because naturalized citizens are not eligible to become President.

    Let’s look at another case. If a woman who is a Russian Citizen working in the Russian embassy delivers her child at a US hospital, is that child a US Citizen? Is this child “subject to the jurisdiction thereof”? Would it be a case of “corrupt lawyering” to claim that the child was not a US Citizen, Mr. Rosenweig?

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