Dear Reader,

The right to legal counsel in all criminal prosecutions is enshrined in the Sixth Amendment to the Constitution. And the Supreme Court has interpreted that right to include the right to counsel of one’s choice.

But President Donald Trump signed an executive order last week targeting that hallowed right. The order directs relevant government agencies to suspend the security clearance of attorney Peter Koski and all other attorneys at his law firm, Covington and Burling, “pending a review and determination of their roles and responsibilities, if any, in the weaponization of the judicial process.” The order also ordered agencies to terminate any government contracts with the law firm, though it has none. Lest anyone miss the reason that the president was singling out this particular law firm, Trump said at the signing ceremony that he wanted the moment to be known as “the Deranged Jack Smith signing.”

The firm’s lawyers came into Trump’s crosshairs when former special counsel Jack Smith disclosed that he had received $140,000 in pro bono legal services from them. Koski and another Covington lawyer had agreed to represent Smith, whom Trump has targeted for retribution for his work as special counsel during the last administration. Smith, of course, obtained grand jury indictments, one alleging Trump interfered in the 2020 presidential election and another that he unlawfully retained national defense documents after leaving office in 2017. Smith moved to dismiss both cases when Trump was elected to a second term in November in light of the view of the Department of Justice that sitting presidents cannot be prosecuted.

The effect of the executive order on Covington seems clear: If none of the firm’s lawyers can obtain a security clearance, it will be difficult for them to defend Smith if he is charged with a crime for his work as special counsel. Defending him would certainly require review of all of the documents involved in the two cases against Trump, at least one of which will involve classified government documents that Trump allegedly possessed at his home at the Mar-a-Lago resort in Florida. Providing an effective defense in the case likely would require an attorney to have a security clearance to be able to review those documents. By yanking the clearances of Koski and his law firm colleagues, Trump has all but guaranteed that Smith will have to look elsewhere for lawyers to represent him if he should face charges based on his work.

But the executive order resonates even beyond Covington and Burling. Every law firm will get the message that representing Smith means that they, too, may find themselves in the line of fire. Punishing his rivals with a disproportionate response is part of Trump’s longtime strategy. As, he once explained, when people wrong him, he retaliates “times maybe 10.” The goal is not just to punish his perceived wrongdoer, but to send a warning to anyone else who might be inclined to cross swords with him.

I will be surprised if Trump’s Justice Department comes up with charges against Smith in light of the complete lack of public evidence of any criminal misconduct. While Trump, like every defendant, is presumed innocent, Smith’s legal theories appeared sound, and the evidence described in the indictments seemed sufficient to obtain and sustain a conviction. In my view, Smith did his job diligently, and is being targeted solely out of vengeance.

But if Smith were to be charged, he would be entitled to retain the counsel of his choice under the Sixth Amendment. Trump’s intimidation tactics are effectively denying Smith not only the lawyers of his choice, but potentially any lawyer who might be qualified for the task. If any lawyer who agrees to represent Smith will lose or be denied a security clearance by the Trump administration, then no lawyer will be able to render effective assistance of counsel. The chilling effect of Trump’s thirst for revenge might mean that Smith is unable to find any lawyer at all who is willing or even able to represent him.

Trump’s petty vindictiveness and disrespect for the rule of law stands in stark contrast to our nation’s proudest traditions. Before he was elected president, John Adams famously represented the British soldiers charged with crimes for their roles in the 1770 Boston Massacre. According to the John Adams Historical Society, Adams was well aware of the dangers of taking on such an unpopular case in the lead-up to the American Revolution, when passions against the Redcoats were high. Adams himself was a devout patriot opposed to the rule of King George III, and would later sign the Declaration of Independence. But he set aside his personal views and risked his livelihood and the safety of his wife and young children to take the case because he believed that everyone was entitled to a fair trial and deserved equal justice. He later reflected that his representation of the British soldiers was “one of the most gallant, generous, manly and disinterested Actions of my whole Life, and one of the best Pieces of Service I ever rendered my Country.”

But of course, Trump sees his role less as service to his country than as service to himself. Even if it means trampling on the Constitution he has sworn to uphold.

Stay Informed,

Barb

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