June 28, 2021
November 10, 2020
Editorial credit: Jim Lo Scalzo / EPA-EFE / Shutterstock
We, the undersigned, are attorneys from all regions of America, representing a myriad of political and ideological backgrounds. We join in this letter to demand that public office holders and lawyers uphold their oath to defend the Constitution. To do that, they must cease making false or unfounded claims and implementing actions – including those actions taken by Attorney General William Barr on November 9 – that undermine our presidential election process.
The right to a fair and free election is sacred in this country. As the Supreme Court has written: “The right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restriction on that right strikes at the heart of democratic government . . . [A]ny alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized.” Reynolds v. Sims, 377 U.S. 533, 555 (1964).
Every candidate has a right to ensure that an election is conducted lawfully. However, court challenges, if any, must be based on facts, on evidence. These principles are fundamental to securing every citizen’s right to vote and to our democracy.
The President of the United States has directed the filing of court cases seeking to stop ballots from being counted on the ground that there has been widespread ballot fraud. His sons have sharply criticized Republicans who are not backing their father’s claims. Following these comments, Senators Ted Cruz and Lindsey Graham, both attorneys, and House Minority Leader Kevin McCarthy participated in interviews where they echoed the President’s allegations of fraud.
But these claims of widespread fraud are without evidence and false. As preeminent Republican election lawyer Benjamin Ginsberg recently wrote, though Republicans have spent more than thirty years searching for evidence, “Proof of systematic fraud . . . doesn’t exist.”
Stopping the counting of eligible ballots would effectively nullify those citizens’ fundamental right to vote. Since there is no factual basis – no evidence – to support President Trump’s claim of widespread fraud, his actions grossly interfere with the right to vote and cannot withstand any scrutiny, let alone the “careful and meticulous scrutin[y]” demanded by the Supreme Court.
In effect, the President seeks an unconstitutional “restriction on the right to vote” under Reynolds v. Sims. He is violating his duty to defend the Constitution.
The United States Constitution requires the President to take an oath to “preserve, protect and defend the Constitution”, Art. II, Sect. 1, Cl. 8. Federal law requires all other federal office holders to take an oath to “support and defend the Constitution”. 5 U.S.C. 3331. Lawyers take a similar oath.
Lawyers who represent the President, or his campaign, in challenges to this election – like all lawyers who appear in court – have an ethical obligation of candor to the court. As embodied in the American Bar Association’s Model Rules of Professional Conduct 3.3, “the lawyer must not allow the tribunal to be misled by false statements of … fact or evidence that the lawyer knows to be false.”
This duty applies fully to Justice Department employees who respond with legal action to Attorney General Barr’s November 9 precedent-breaking memo authorizing investigations of election fraud during the immediate, post-election period. This latest action only adds to the Attorney General’s shameful legacy.
A lawyer’s oath is a sacred vow. Americans have a right to expect, and courts must require, that those who undermine the Constitution by perpetuating false allegations to prevent citizens from having their vote counted – effectively denying them the right to vote – be held to account.
This unprecedented moment transcends partisanship. The country and the world are watching to see how America responds to the President’s shameful attack on the legitimacy of America’s voting process.
There has never been a more important time for America’s lawyers to acknowledge the importance of these solemn commitments, and to demand accountability for those lawyers and federal officials who do not live up to their oaths and ethical obligations.