Have Trump’s lawyers violated their professional oaths?

Donald Trump’s lawyers have worked feverishly over recent months to delay one legal proceeding after another while struggling to make a legitimate case that the former president should be immune from criminal prosecution.

These legal theatrics are eroding our faith in one of the most important pillars of democracy: the rule of law. When the public loses confidence in the fundamental belief that laws apply equally to every citizen, and that no one is above the law, we are on the road to anarchy.

Physicians take a Hippocratic oath not to harm their patients. Lawyers have a duty to uphold the rule of law. The American Bar Association’s Model Rules of Professional Conduct succinctly states: “A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system, and a public citizen having special responsibility for the quality of justice.”

Yes, lawyers have a “special responsibility for the quality of justice.” But some lawyers these days seem to have lost their way, particularly those appearing before state and federal courts as “representative of clients.”

In law school, my Civil Procedure professor constantly reiterated that “if you only remember one rule of civil procedure, remember Rule 11.” That is the certification rule. It says, in part:

By presenting to the court a pleading, written motion, or other paper … an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

1. It is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
2. The claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law for establishing new law;
3. The factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery

The rule goes on, but you get the point. If a lawyer claims to have facts to prove something, he or she is certifying to the court to have such facts or is going to get them. Lawyers that can’t meet that clear standard should not be signing or submitting the pleading.

Judges control access to their courts. Lawyers just can’t walk into any courthouse in the land; they have to be “admitted to practice,” and courts have the authority to discipline offending attorneys. The court does not have to wait for opposing counsel to suggest an offense but, “on its own, the court may order an attorney, law firm, or party to show cause why conduct specifically described in the order has not violated Rule 11(b).”

After the 2020 presidential election, over 60 lawsuits were filed by candidate Trump or by others on his behalf. All ended in defeat for Trump, and many were described by judges and other legal experts as “frivolous” and “without merit.”

Here’s what Judge Linda Parker of Michigan’s Eastern District Federal Court said after sanctioning lawyers who brought one of the Trump cases in her court:

“This lawsuit represents a historic and profound abuse of the judicial process … Individuals may have a right (within certain bounds) to disseminate allegations of fraud unsupported by law or fact in the public sphere. But attorneys cannot exploit their privilege and access to the judicial process to do the same. And when an attorney has done so, sanctions are in order.”

Trump’s lawyers recently filed a brief with the Supreme Court in the presidential immunity case suggesting that he took the actions alleged in the indictment “based on voluminous information available to President Trump in his official capacity, that the election was tainted by extensive fraud and irregularities.” After 60 lawsuits, we’re still waiting for the “voluminous information.” Perhaps the lawyers who signed and submitted the brief know where it is.

Lawyers must defend the rule of law. They can start by re-reading and thinking about Rule 11. At the same time, judges must hold accountable lawyers appearing in their courts. Lawyers are officers of the court. They need to act as such.

The building blocks of democracy begin to crumble when Americans lose faith in the rule of law. As a nation, that very thing is happening right before our eyes. And when those building blocks fail, anarchy will follow.

Charles Cragin is a lawyer admitted to practice before the Supreme Court. A former member of the Republican National Committee, he served as chairman of the Board of Veterans’ Appeals and in senior positions at the Department of Defense.