The Role of Attorney Speech and Advocacy in the Subversion & Protection of Constitutional Governance

59 Pages Posted: 12 Jan 2022

See all articles by Margaret Tarkington

Margaret Tarkington

Indiana University Robert H. McKinney School of Law

Date Written: January 3, 2022

Abstract

Attorneys who advised and assisted in Trump’s Big Lie that the 2020 election was stolen have raised and are raising the First Amendment as a defense to sanctions and discipline for their speech and advocacy. So far, the courts to consider this defense have given it very short shrift. Too short, in fact. The appropriate analysis is not to assert that attorneys lack First Amendment rights, but, rather, to recognize that those rights, while essential, are attuned to the role of the attorney in the justice system. So attuned, attorneys lack First Amendment rights to speech, association (meaning they may be required to refuse representation or withdraw), petitioning, and public advocacy that undermines the system of justice, the rule of law, or—as relevant in the context of overturning the 2020 election—constitutional governance. The First Amendment should protect attorneys for Trump who filed non-frivolous suits, who refused to assist in illegal or fraudulent activities, who avoided engaging in false and misleading public advocacy or otherwise assisting in the fraud of Trump’s Big Lie. Nevertheless, Trump-supporting attorneys should find themselves bereft of a First Amendment defense—not because their views are unpopular or even wrong—but when and to the extent that they are using the state power delegated to them to practice law to thwart the justice system or undermine constitutional governance.

Importantly, lawyers were not merely villains in Trump’s power grab for the sovereignty and soul of the United States. Indeed, we likely owe the fact that we currently still live in a constitutional democracy to lawyers—including Bill Barr, Jeff Rosen, Christopher Krebs, BJay Pak, the DOJ and White House lawyers who threatened to resign en masse if Trump went through with his plans to try to install a new Attorney General who would keep him in power, the numerous lawyers who resigned rather than bring lawsuits that were frivolous or fraudulent, state and federal judges (including Republican and even Trump appointees) who heard and dismissed scores of election fraud cases (including the Justices of the U.S. Supreme Court), and Mike Pence, who has a law license, and chose to complete his constitutional duty as Vice President and count the certified electoral votes, confirming Biden's win.

The central ideal of our constitutional government is that political power is ultimately vested in the people—and that “We, the People of the United States” had and have the collective power to create the government. When a government official tries to wrest that power from the people by making an autocratic bid to stay in power contrary to the will of the people as determined by an election, that official is undermining our basic governmental foundation and should not be able to employ the aid of attorneys (who are delegates of state power derived from the people) to advise or assist in such activity. While a decent contingent of lawyers recognized this fact and resigned or withdrew rather than assist Trump in overturning the election, another contingent was willing to come to his aid both publicly and privately—and even advise him in how to commandeer the governmental power bestowed upon his office (and the office of the Vice President) to his personal ends. The First Amendment does not protect from discipline lawyers who use their association, advice, and advocacy to undermine our constitutional system of government.

Keywords: First Amendment, Donald Trump, Big Lie, 2020 Election, Lawyer First Amendment Rights, January 6, Capitol Insurrection, Save America Rally, Professional Responsibility, Lawyer Regulation, Rudy Giuliani, Sidney Powell, John Eastman, John Clark, Pretrial Publicity, Public Advocacy, Legal Ethics

Suggested Citation

Tarkington, Margaret, The Role of Attorney Speech and Advocacy in the Subversion & Protection of Constitutional Governance (January 3, 2022). Washington University Journal of Law and Policy, Forthcoming, Available at SSRN: https://ssrn.com/abstract=4002068 or http://dx.doi.org/10.2139/ssrn.4002068

Margaret Tarkington (Contact Author)

Indiana University Robert H. McKinney School of Law ( email )

530 West New York Street
Indianapolis, IN 46202
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
104
Abstract Views
374
rank
349,264
PlumX Metrics