Opinion: The problem with saying lawyers shouldn’t represent Trump
(CNN) — In the run-up to Thursday’s verdict in former President Donald Trump’s document falsification trial, there was a concerning rumbling within the legal community criticizing defense lawyer Todd Blanche for having had the temerity to represent Trump. This disapproval came after a number of articles in recent years have reported that many law firms have rejected the opportunity to represent Trump for political reasons.
While private attorneys certainly are free to accept or reject clients for any number of reasons, disagreeing with a criminal client’s politics shouldn’t be a reason for that client to go unrepresented. Allowing defendants with politically unpopular opinions to face imprisonment without a competent defense is antithetical to the American system of justice and the principles of equal justice under the law. And had Trump not been able to be represented in his Manhattan criminal trial by the lawyers of his choosing, it would have undermined the conviction that was ultimately handed down.
CNN senior legal analyst Elie Honig noted last month that a lot of lawyers in the US Attorney’s Office for the Southern District of New York, where both he and Blanche once worked, had been asking him, “Why the heck would Todd do this – why would he ever take this case?” What Honig told them was perfect: “My response is, generally, when did we become pearl-clutchers about defense lawyers defending defendants? That’s what the job is and what our system requires.”
To be clear, I am no defender of Blanche, with whom I briefly worked on the Trump team. But while some have questioned his motives or political ambitions, that does not lead to the conclusion that he or other attorneys should not have taken on the case.
This “pearl-clutching” was evident in a troubling op-ed for the New York Law Journal penned by former prosecutor, Elliott B. Jacobson, who argued that it is unethical for Blanche, or any private defense attorney for that matter, to represent Trump in his criminal trials. “Whatever the marginal utility of defending Trump to the preservation of Constitutional values and our criminal justice system at large, it is more than outweighed by the damage he would do to the Constitution and that system if he were acquitted … and went on to become president for a second time,” Jacobson wrote. But in arguing that private attorneys, who can choose their clients, should reject representing Trump, this article advances a profoundly misguided political argument.
Jacobson, who begins his article by touting his own bona fides in prosecuting Trump-aligned figures and, after his retirement, volunteering to act as an unpaid prosecutor probing Trump and the Trump Organization, is essentially saying that because he wants Trump to lose the election, it is wrong for a private attorney such as Blanche to represent him. But no prosecutor should ever put partisan politics over constitutional principles. Such an admission of naked partisanship by a career prosecutor unfortunately also lends credence to the Trump campaign’s rhetoric about prosecutors engaging in “election interference” and a “witch hunt.”
Our criminal justice system is only as good as the people who administer it. While most prosecutors try to do the right thing, we cannot ignore the fact that prosecutors are imperfect humans, some of whom who do engage in misconduct. Our adversarial system was designed to protect people against abuses by having advocates on both sides to ensure that rights are protected. As the late Supreme Court Justice John Paul Stephens wrote, “disposing of lawyers is a step in the direction of a totalitarian form of government.”
Others have pointed out that several attorneys who have previously represented Trump found themselves in legal hot water, such as Sidney Powell, Rudy Giuliani, Jenna Ellis and John Eastman. However, this also misses the mark, as there is a major difference between attorneys participating in campaign activities — which is what put those lawyers in jeopardy – and criminal attorneys defending a client in court. Successful criminal attorneys represent all sorts of interesting and sometimes unsavory characters without being tempted to engage in any unethical or illegal behavior. In my own experience representing Trump in the January 6 and Mar-a-Lago investigations, I never felt any pressure to compromise my integrity.
Our founders understood the principle that these critics of Trump’s defenders fail to grasp. John Adams, an ardent patriot who would help draft the Declaration of Independence and serve as the first US vice president and second president, agreed to take on the deeply unpopular representation of the British soldiers accused of murder in the Boston Massacre.
In doing so, he stated, “Council ought to be the very last thing that an accused Person should want [i.e. lack] in a free Country.” The legal profession, he continued, “ought in my opinion to be independent and impartial at all Times And in every circumstance,” while the “Persons whose Lives were at Stake ought to have the Council they preferred.” He referred to the Boston Massacre as “important a Cause as ever was tryed in any Court or Country of the World” and therefore every lawyer must hold themselves to the highest legal principles and expect from him “no Art nor Address, No Sophistry or Prevarication in such a Cause; nor anything more than Fact, Evidence and Law would justify.”
Our criminal justice system desperately needs less partisan influence, not more. Despite my public moniker of “former Trump lawyer,” I do not personally subscribe to the orthodoxy of either political party and I enjoy representing clients on both sides of the political aisle. Moreover, I do not believe that any honest lawyer should publicly identify themselves as either a “conservative lawyer” or a “liberal lawyer.” You can be a lawyer who holds conservative or liberal political beliefs, but those political beliefs should not alter how you represent our clients or impact our analysis of the facts or the law.
The-CNN-Wire
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