Making lawyers "toxic in their communities" is a tactic of The 65 Project. The group files ethics complaints against lawyers who represented clients raising challenges to the 2020 election, despite a substantial body of evidence that presidential election results have been frequently challenged throughout our nation's history, including most recently by Democrats in 2000 and 2016. Indeed, the election of 1876 famously yielded multiple slates of electors from several southern states, and the dispute took months to resolve by a special commission created by Congress for the task.
While The 65 Project makes the claim on their website of defending democracy and the rule of law, they do exactly the opposite. Their actions, for instance, strike at the heart of the ability of Americans to freely associate with fellow citizens — one of the pillars of America's successful democratic republic — by isolating, financially crippling, and destroying the careers of those in the legal profession who dared challenge the government-endorsed narrative that the 2020 election was the most secure in our nation's history.
The tactics used to make lawyers "toxic" include filing ethics complaints, misrepresenting their legal work in the press, refusing to look at the evidence of election irregularities, demonizing those who raise the claims to keep the evidence from seeing the light of day, and encouraging professional associations to isolate or distance themselves from these lawyers.
The ancient Greeks ostracized citizens for political reasons. Among the most famous was Thucydides, author of History of the Peloponnesian War, who was ostracized because he failed to prevent the capture of Amphipolis while commanding a fleet in the war. The ancient Romans exiled citizens. Cicero, the great Roman orator, philosopher and lawyer, was exiled due to a retroactive law passed by his political enemies for his actions related to the Catiline Conspiracy. A more recent example from the Soviet Union is that of Aleksandr Solzhenitsyn, who was sentenced to a labor camp and subsequently internal exile for criticizing Stalin. Because of the importance of free association in America, these examples differ from what is being perpetrated by The 65 Project, which poses a far greater danger.
Efforts to exclude learned citizens — or making them toxic, as The 65 Project is attempting to do — is to the detriment of democratic institutions and the nation's constitutional republic.
In 1835-40, Alexis de Tocqueville, author of Democracy in America, highlighted Americans' extraordinary practice of forming political and civil associations. He observed that citizens in a democratic republic are weak when acting as individuals and more likely to have a limited or narrow perception. Those in a group or association, however, expand the scope of the vision or goals, and are far stronger and more effective acting in concert when they associate to advance a common cause. Efforts to exclude learned citizens — or making them toxic, as The 65 Project is attempting to do — is to the detriment of democratic institutions and the nation's constitutional republic.
Association is part of the bedrock of American experience. Beyond the comradery or shared interests that bring people together, the goal of seeking solutions to local or national problems and advancing initiatives also drives the practice. Associations cannot make law, but they have the power to direct and influence opinion, make policy recommendations, and propose legislation. They can also expose wrongdoing and advance remedies. Examples abound of American citizens forming associations: Anti-Slavery groups, Civil Rights groups, Mothers Against Drunk Drivers, the Tea Party, and Election Integrity groups, to name just a few. These associations cross political and social divides and perpetuate America's democratic foundations through broad-based civic participation. Smearing individuals — making them toxic — because of their legal representation of unpopular clients or causes limits or prevents the participation of some of the most qualified people, and thus diminishes this vibrant practice of association to advance shared political goals. In Pakistan, for instance, attorneys are killed or threatened with death (here and here) for representing persons whose views are not liked. Is a version of that really what we want to see normalized here?
Preserving the integrity of elections calls for the greatest safeguards and vigilance.
A strong response to these unwarranted and unjustified attacks is necessary. There are many ways to help fight back against this undermining of the judicial system, where everyone is entitled to legal representation. This includes lending financial support to the lawyers who are being attacked. Others with expertise or knowledge of the relevant facts should offer to testify at the bar trials or hearings in support of these lawyers, or file amicus briefs in support of those charged and defend their legal interpretations in court filings and the press. Lawyers can also go on offense and file ethics complaints against those who are bringing these unethical charges.
The inability to hold to account those who make defamatory statements against these lawyers and misrepresent their legal arguments is due in part to the 1960's case New York Times v. Sullivan, which stated that public figures can only prevail against those who defame them if they prove the defamatory statement was made with actual malice. That ruling has incentivized toxic rhetoric in American politics. Supreme Court Justices Clarence Thomas and Neil Gorsuch have recently urged that the case be reconsidered.
Dissenting from denial of certiorari in Berisha v. Lawson, Justice Gorsuch wrote:
"What started in 1964 with a decision to tolerate the occasional falsehood to ensure robust reporting by a comparative handful of print and broadcast outlets has evolved into an ironclad subsidy for the publication of falsehoods by means and on a scale previously unimaginable."
Justice Thomas added in his own separate dissent:
"This court's pronouncement that the First Amendment requires public figures to establish actual malice bears no relation to the text, history or structure of the Constitution."
Overturning Sullivan would make it easier to bring defamation suits and discourage lying and misrepresentation about the legal arguments related to the 2020 election.
The 2020 election was fraught with irregularities. It is essential for the continued integrity of our elections and the public's trust in them, to give those who have evidence a platform to present their cases. It is crucial to bring to light the courts' refusals to examine the evidence of election irregularities. These lawyers ought to be out front during this election year. Instead, they are targeted and shunned, which only serves to stop review of the evidence and even worse, future improprieties.
Elections give effect to the consent of the governed. Preserving the integrity of elections calls for the greatest safeguards and vigilance. The lawyers who step up to litigate election matters, or who defend clients whose views may not be popular, should be applauded for working within a constitutional framework to support a pillar of America's constitutional republic.
Are those who remain silent tacitly approving of The 65 Project's efforts to render these lawyers toxic? Are they fearful?
Finally, it is crucial that individuals, major organizations and non-profit groups on the other side of the lawfare divide participate in a broad defense of these targeted individuals by publicly embracing them through invitations to public fora and programs and to serve on boards of organizations. Highlight their careers, the work they did related to 2020 election challenges, and why their arguments are worthy of debate. Do not allow groups like The 65 Project to dictate who is acceptable. Do not sanction efforts to treat those standing up against false government narratives like pariahs, but instead recognize their accomplishments. A recent example is the Courage Award that the David Horowitz Freedom Center gave to one of these targeted lawyers for his legal work.
In academia, organizations such as Foundation for Individual Rights in Education and National Association of Scholars have defended faculty members who have been targeted for their speech and positions. Where is the equivalent response among professional associations of lawyers, think tanks, and academic institutions? Where are those organizations who pride themselves on debate? Are those who remain silent tacitly approving of The 65 Project's efforts to render these lawyers toxic? Are they fearful? Do they choose not to defend the fundamental practices of fairness, debate, and dissent?
Tocqueville recognized during his visit in the 1830's that Americans' freedom to associate for political good was unlimited. Does the effort to make lawyers toxic call that into question? Tocqueville also saw associations as a guarantee against tyranny of the majority and party dominance. Given our government's increasing tendency toward authoritarianism, America needs robust associations more than ever before.
