Yesterday’s indictment of Donald Trump serves as an inflection point for this country. How we respond to a process that has no precedent in American history will send a message to the world about the strength of our democracy.
The indictment is a compelling read, describing with clarity and specificity the factual basis for the alleged charges. Special Counsel Jack Smith laid the foundation for his charges with these piercing words:
The Defendant, DONALD J. TRUMP, lost the 2020 presidential election. Despite having lost, the Defendant was determined to remain in power. So for more than two months following election day on November 3,2020, the Defendant spread lies that there had been outcome-determinative fraud in the election and that he had actually won. These claims were false, and the Defendant knew that they were false. But the Defendant repeated and widely disseminated them anyway – to make his knowingly false claims appear legitimate, create an intense national atmosphere of mistrust and anger, and erode public faith in the administration of the election.
The allegations set forth in the indictment describe an assault on democracy that was fueled by lies and an indifference to the scheme’s potential endangerment of the Vice President of the United States, the law enforcement officials trying to protect the Capitol Building, and the hundreds of elected officials and staff in that building on January 6.
The indictment also depicts the worst of the legal profession. Five of the six co-conspirators are lawyers. Based on reporting about their identity, Lawyers Defending American Democracy had previously filed ethics complaints before state licensing authorities against four of the five, alleging egregious violations of their ethical obligations and their oath to protect democracy: Rudolph Giuliani, John Eastman, Jeffrey Clark, and Kenneth Chesebro.
But the indictment also depicts the best of the profession – lawyers who tried to talk the Defendant/former President out of his schemes, including urging him to ask the rioters to leave the Capitol. These lawyers likely knew that if they were unsuccessful in convincing him to abandon his schemes, they themselves would be abandoned as trusted advisors and excluded from the inner circle.
Our colleague, Dennis Aftergut, wrote about the importance of this indictment: Jack Smith’s Jan. 6 Trump Indictment is a Prosecutorial Masterstroke. We urge you to read his article and the indictment itself to understand the compelling allegations and their historical significance.
In facing this inflection point, all lawyers should feel an obligation to be advocates for democracy and the rule of law, as well as activists for civil discourse. We must all help the public understand that this criminal process is not about politics or partisanship. It is about ensuring that our elections are secure and that no voter can be disenfranchised at the whim of a President who refuses to face his loss at the ballot box.
Our profession can no longer stay silent. Too much is at stake.