WASHINGTON — As John Eastman prepared to surrender to Georgia authorities last week for an indictment related to efforts to overturn the 2020 presidential election, he issued a statement denouncing the criminal case as targeting attorneys “for their zealous advocacy on behalf of their clients.”
Another defendant, Rudy Giuliani, struck a similar note, saying he was being indicted for his work as Donald Trump’s attorney. “I never thought I’d get indicted for being a lawyer,” he lamented.
The 18 defendants charged alongside Trump in this month’s racketeering indictment in Fulton County include more than a half-dozen lawyers, and the statements from Eastman and Giuliani provide early foreshadowing of at least one of the defenses they seem poised to raise: that they were merely doing their jobs as attorneys when they maneuvered on Trump’s behalf to undo the results of that election.
The argument suggests a desire to turn at least part of the sprawling prosecution into a referendum on the boundaries of ethical lawyering in a case that highlights anew how Trump’s own attorneys have become entangled over the years in his own legal problems.
But while attorneys do have wide berth to advance untested or unconventional positions, experts say a “lawyers being lawyers” defense will be challenging to pull off to the extent prosecutors can directly link the indicted lawyers to criminal schemes alleged in the indictment. That includes efforts to line up fake electors in Georgia and other states who would falsely assert that Trump, not Democrat Joe Biden, had won their respective contests.
“The law books are replete with examples of lawyers who were disciplined for claiming they were representing their clients,” said Barry Richard, who represented George W. Bush’s winning presidential campaign in 2000 in a dispute ultimately decided by the Supreme Court. “Lawyers are required to follow very stringent rules of propriety. And there are certain things you can’t do for your clients. You cannot tell the court facts you have reason to know are not true.”
A more complicated question, though, is how far lawyers can go in advancing legal theories — even poorly supported ones — to achieve a desired outcome for a client, said Stephen Saltzburg, a George Washington University law professor and former Justice Department official.
“Bad lawyering” is in and of itself not a crime, nor is “testing the waters” of legal arguments, he said.
“The real question is, at what point does a lawyer who knows that the legal theory that that lawyer is espousing has never been accepted anywhere — when does the lawyer cross the line if the lawyer suggests sort of that it is OK, that it’s clearly OK?” Saltzburg said. “And that’s a fuzzy line.”