by Jeffrey Clark, Former Assistant Attorney General at the U.S. Justice Department
As Shakespeare famously wrote in Henry VI Part II: “The first thing we do, let’s kill all the lawyers.”
Even for me as a lawyer, it’s hard not to sympathize with that
sentiment. Lawyers are a drag. But in reflective moments, I’m more
partial to Sir Thomas More’s line from Robert Bolt’s A Man for All Seasons
“And when the last law was down, and the Devil turned ‘round on you,
where would you hide, Roper, the laws all being flat? This country is
planted thick with laws, from coast to coast, Man’s laws, not God’s!”
The evenhanded application of the law is a principle that must
be defended. Everywhere, balance and perspective are under attack.
Whatever the costs of America’s process-heavy adversarial contests, that
feature of our polity is a key bulwark of liberty. Due process is not
something to be trifled with, deconstructed, or thrown away based on the
passions of the political moment.
Yet that is happening, right now. The Left has set the lines of
battle: Any lawyers who worked for President Trump with verve and
ingenuity, along with any lawyers he retained to mount his various 2020
election contests, must be crushed, must have their noses rubbed into
the dirt, must if possible lose their jobs and even their right to
practice law. It’s not right, just as it would not have been right to
demonize the lawyers who mounted Al Gore’s challenges to the 2000
presidential election in Florida.
On the Left, the constant rallying cry is “Remember January 6!” It’s
like a woke version of “Remember the Alamo!”, designed to divide and
conquer instead of unite the nation in the spirit of apple-pie American
patriotism. For those who know me, I’m a lot more partial to traditional
patriotism than to false and cynical attempts by MSNBC and its ilk to
use the aberration of January 6 as some kind of Rosetta Stone to
American politics. As James O’Keefe has recently brought to light, even
Matthew Rosenberg of the New York Times secretly knows I’m right.
Project 65 and Its Despicable Aims
When the Left wants something, you can be sure that limitless streams
of money will soon pour forth to fund their destructive crusade.
Recently, Axios profiled something significant you might have missed:
“Project 65,” a new initiative funded by millions in “dark money” to
destroy as many Trump-affiliated lawyers as possible.
At the retail level, Project 65’s purpose is to file bar complaints
against 111 lawyers wherever they are licensed. At the wholesale level,
it seeks to amend state bar rules, so that no lawyers with a sense of
self-preservation will ever again want to bring election-related
contests on behalf of President Trump, or any other populist
conservative candidate. According to Project 65, everyone secretly knows
that elections in Atlanta, Chicago, or Philadelphia (my home town) are
entirely aboveboard, so any legal challenges to them must be in bad
faith. My Mom’s stories from decades of poll watching in Philadelphia
must have been hallucinated, and a slew of election fraud cases in
Philadelphia must have magically disappeared from the annals of the law.
The Chicago corruption of Mayor Daley in the 1960 presidential election
is an old wives’ tale. Election fraud in America simply doesn’t exist.
Of course, some exceptions exist—for Democrat complaints of voter fraud,
of course. Don’t expect Project 65 to file a bar complaint any time
soon against losing candidate Stacey Abrams over her frequent claims to
be the legitimate governor of Georgia.
Project 65 is led by David Brock, the founder of Media Matters for
America and the super PAC American Bridge 21st Century. Brock is still
on his life-long quest to expiate his decades-old “sin” of writing The Real Anita Hill,
attacking the credibility of Clarence Thomas’s harassment accuser. Brock
will be joined by an advisory board that includes former Senate
majority leader Tom Daschle, Clinton affiliate Melissa Moss, and
“Republican” Paul Rosenzweig.
(Here I pause to ask, Paul, what’s happened to you? We both served in
the Bush 43 Administration, me at Justice and you at Homeland Security.
President Trump actually achieved many of the goals President Bush
advocated, yet rarely did much to accomplish. Talking a good game is not
the same thing as running a good game. Best to judge by fruits and not
by braggadocious tweets, I think. Never Trumpism seems to be a fever
that makes calmly comparing records impossible.)
Here’s what Brock describes as the mission of his project: “[Project
65] will not only bring the grievances in the bar complaints but shame
them and make them toxic in their communities.” According to Axios,
Brock’s plan is nothing less than a war of the strong against the weak:
“I think the littler fish are probably more vulnerable to what we’re
doing… You’re threatening their livelihoods. And you know, they’ve got
reputations in their local communities.”
Give Brock points for honesty, at least. Not everyone has the guts to
gloat about being pure evil. Project 65 is torn right from the playbook
of Saul Alinsky (“Pick the target, freeze it, personalize it, and
polarize it”): Shame lawyers, plague them with hefty legal bills, and
especially pick off ones who are less famous and backed by fewer
resources. Given all that, it’s better to call Project 65 Project Shame,
Project Fear, or the Project of Personal Destruction. And wait, why is
it even called Project 65? Because (groan) that’s the number of lawsuits
filed to support the “Big Lie,” of course.
Monopolies are never good, whether one is talking about cornering the
market for silver, for banking services, for rare earth minerals (hello
CCP), or for social media. Lawyers are indispensable to promoting any
abstract cause or to any concrete enterprise that must enter the court
system to present grievances. Trying to shame, outlaw, and destroy the
personal reputations of any category of lawyers, on the Right or on
the Left, must be resisted with maximum effort. And make no mistake, as
Axios recognizes after talking to Brock himself (and others at Project
65 clinging to anonymity), the goal of the effort is to chill market
forces: “The 65 Project is focused on starving any future efforts of
legal talent as well as focusing on 2020.”
Professor Alan Dershowitz sees the game afoot. He told Breitbart that
he will “defend any lawyer targeted by [the] McCarthyist ‘65 Project.’”
Good for him. He immediately recognizes that Project 65 flunks any test
of Kantian evenhandedness and ethics:
It was only 22 years ago when lawyers like me sought to block the
election of President George W. Bush, believing as we did that Al Gore
actually received more votes than Bush in Florida and was the rightful
winner. We lost in court. But back then no one suggested going after the
hundreds of lawyers who tried to prevent Bush’s certification. A
dangerous weapon, like the 65 Project, unleashed by Democrats will
surely be used by Republicans at some future time. [Breitbart]
Bingo. It’s the Golden Rule. If progressives can try to starve
Republicans of legal talent, turnabout will become fair play. And it
should not be allowed to become fair play—by either side. Weaponizing
bar rules to endlessly relitigate contests about the 2020 presidential
election (or any election) is not what the rules of legal ethics and
professional conduct exist to accomplish. It is blatant lawfare,
designed to impose ruinous costs on lawyers of an enemy political
faction. It’s a Pandora’s box that should remain closed.
The Three Categories of Lawyers Project 65 Seeks to “Freeze” in Alinsky Terms
Project 65 plans to target three categories of lawyers: (1) Trump’s
inner circle of lawyers, e.g., Jenna Ellis and Boris Epsteyn, (2)
lawyers who signed on to be alternate presidential electors; and (3)
attorneys who participated in the attack on the Capitol or were simply
present at the events of January 6.
Let’s take each of these categories in turn. For category 1, the
Project reasons that being close to Trump is its own unpardonable sin, a
form of guilt by association. That’s as un-American as it gets. Next,
as to alternate electors: In the 1960 presidential election between
Nixon and Kennedy, there were alternate Democratic Hawaii electors for
Senator Kennedy who eventually became the actual electors, so
lining up alternative electors to be ready for such an opportunity can’t
be inherently illegal or unethical. And finally, while a lawyer who
participated in violence at the Capitol on January 6 is clearly a proper
subject of a bar investigation and stern discipline, the idea that a
lawyer’s mere presence at the January 6 protest is unethical is the
stuff of a banana republic. Is every left-leaning lawyer who protested
George Floyd’s death to be rounded up and disbarred because Antifa
members assaulted a courthouse in Portland or burned down a police
station in Minneapolis?
Is at Least One Other Entity Cooperating With Project 65?
The public announcement of Project 65’s kickoff was followed just a few
weeks ago by a public announcement that the Texas Bar was considering
allegations of unethical conduct filed against the Lone Star State’s
Attorney General, Ken Paxton.