Professor Bruce Green co-authored an op-ed with New York Law School Professor Rebecca Roiphe that examines and recognizes the lawyers that uphold democracy and protect laws despite personal and political interest.
On March 2, the January 6 Select Committee filed a brief demonstrating that former President Trump relied on the advice of a lawyer, John Eastman, in an attempt to prevent Vice President Pence from counting the electoral votes as the law required. While this incident involves a lawyer who abandoned professional norms, a far greater number of attorneys encountering unsubstantiated allegations of election fraud did their job, proving these norms’ resilience in the face of enormous pressure.
It is hard not to recoil at Eastman’s conduct and to blame him for feeding Trump’s seemingly insatiable desire to remain in power. If the events are as the documentary record seems to show, this is an entirely appropriate reaction. But it is even more noteworthy that in the stress of the moment, under fire from the most powerful man in the world, Vice President Mike Pence’s attorney, Greg Jacob, condemned Eastman and insisted that the vice president follow the law.
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This is not the only moment in which a lawyer abiding by his obligation to provide independent advice and assistance within the bounds of the law helped to preserve and protect our institutions. Immediately after the election, the president plotted to appoint Acting Deputy Attorney General Jeffrey Clark to lead the Department of Justice, knowing that Clark would advance a false narrative that the election had been stolen and that Clark would attempt to use this fabricated story to convince states to rescind certified election results. The president might have succeeded but for top Justice Department lawyers who threatened to resign if Trump replaced the acting attorney general with Clark.
As we rightly criticize the lawyers who failed to live up to professional commitments, it is worth pausing to recognize the remarkable power of professional identity in the face of pressure and incentives running in the opposite direction. Lawyers who risk their own political future and sacrifice an ideological agenda that they believe is in the best interest of the country to protect laws and institutions deserve our praise.