• Show Notes

By Asha Rangappa

Dear Listener,

This is the wisdom that the former dean of Yale Law School, Harold Koh, used to bestow on the newly-arrived law students on their first day of school. Taken from a Korean proverb, the words are especially apropos for the legal profession, given that lawyers have the knowledge and skills to create legal justifications for nefarious — and even illegal — ends. That’s exactly what John Eastman, one of Trump’s lawyers, was doing when he drafted his six-point memo with a so-called legal blueprint for throwing out the 2020 election results. Eastman’s willingness to concoct this scheme under the guise of the law reveals not only how close we came to a coup, but how jealously we must scrutinize the guardians of our democracy — lawyers — moving forward.

The basic thrust of Eastman’s plot was that the vice president had the power to spontaneously depart from the Electoral Count Act during the certification of the Electoral College votes. His scenario envisioned Pence refusing to certify the votes from seven states, and, having invalidated those votes, declaring Trump the winner. If necessary, Pence would send the “dispute” to be resolved by both houses of Congress, where the Republican majority in each would gleefully go along with the plan and vote Trump as the winner. It’s worth noting here that Pence ultimately did not go along with this plan (Trump tried to get him on board), in part because former Vice President Dan Quayle told him that rejecting the Electoral College votes was not an option. To recap: Our democracy was saved by a guy who is best known in American history for incorrectly correcting the spelling of the word “potato” during a sixth-grade spelling bee.

Anyway, the reasons that Eastman’s scheme was completely bonkers are many, and have been explored in depth by respected legal scholars. But the fact that Eastman’s path to power rested on legal quicksand wasn’t even the most disturbing part of the whole enterprise. What made Eastman’s memo so dangerous was that it provided what would amount to a coup with a veneer of legality. This has two ramifications. First, it offered others, like members of Congress, permission — and legal cover — to become complicit in an illegal act. Second, it turned the rule of law on its head, weaponizing it against the very principles that the law, in fact, stands for. 

We have seen this play out before, with the “torture memos” written by the former head of the Office of Legal Counsel, John Yoo. Yoo’s memos used circular logic and questionable interpretations of the Constitution, U.S. laws, and international law to provide the legal justification for what the George W. Bush administration called “enhanced interrogation techniques.” Having received the green light that these techniques were legal, CIA officers and contractors needed only to follow the path of least resistance — that is, follow orders. Although Yoo’s legal reasoning was widely discredited following their release, the powerful legacy of those memos is reflected in the fact that Donald Trump was able to run in 2016 on a platform of reinstituting torture — with almost half of the American public agreeing with him.

I use Yoo’s memos in my law classes as a classical example of legal sophistry — making clever but misleading, and ultimately disingenuous, arguments. The word “sophistry” comes from the Sophists, a group of ancient Greek rhetoricians who taught people how to use the skills of oratory and persuasion to find the Truth, for a fee. Philosophers like Socrates and Plato distrusted the Sophists. They worried that those who weren’t truly interested in seeking the Truth, but rather in personal gain, might misuse these powerful skills and dupe less educated people using “base rhetoric.” In other words, they were worried that the Sophists’ skills might exceed their virtue. 

We’ve been taught in history classes that coups happen through something like a military takeover — like what happened in Myanmar last April. But as Professor Ruth Ben-Ghiat details in her book, Strongmen, military coups just aren’t “in” anymore in the twenty-first century. Most authoritarians these days — Bolsonaro, Putin, Orban — originally came to power through democratic means…and then just stayed there, using “law warfare.” (I should note that technically, a leader who uses extra-legal means to stay in power, rather than assume power from the outside, is called a “self-coup.”) If it happens here in the United States, expect it to look like democracy in action, except it will be the Evil Superman version — sort of “off,” and not really doing what it’s supposed to.

We are already seeing the groundwork being laid for this. Individuals who have demonstrated a willingness to subvert valid election results are running for Secretary of State in key states. In these same states, legislatures are passing voting restrictions to make the margins slimmer and more contestable, if not winnable outright. These states continue to push for “audits” of the 2020 election results, conditioning the public to doubt state-certified outcomes in the future. 

Lawyers are key to all of these efforts succeeding.  The Eastman memo is a wake-up call for America, and the legal profession in particular, that there should be mechanisms to hold lawyers ethically accountable. Although they exist, enforcement of them through meaningful repercussions is rare, and often takes a long time. We are starting to see some efforts to sanction lawyers who abused their knowledge, credentials, and authority to subvert democracy. But the stakes are too high. We need to see swift action against all lawyers who have demonstrated that their skill won’t be guided by their virtue.

Stay Informed,

Asha

Correction: Eastman’s plan was not to send the election dispute to both houses of Congress, but rather only to the House of Representatives, where the delegates from each state would receive one vote.