Guest Post 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, a book 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. According to the Washington Examiner, AG Paxton is under fire for suing to overturn the 2020 presidential election, a suit that 17 other state AGs eventually joined him in. Just pause and let that sink in. The notion that 18 state attorneys general were all plotting together in a back room to file unethical, disbarment-worthy litigation shouldn’t be a theory that could even get off the ground of its own weight. This is a naked, cynical attempt to weaponize the bar rules in the service of politics. The very legitimacy of the legal bar depends on not allowing such a weaponization.
Instead of reflecting unbiased application of ethics rules, the attack on Paxton’s bar license really boils down to the claim it is beyond the pale to contradict the regime’s “Big Lie” refrain. This refrain holds that the 2020 election was perfect, no matter what evidence has emerged or will emerge in the future. There is no attorney ethics rule that mandates agreement with Democrat media narratives, however often they are repeated. It is that fact Brock and his ilk seek to change.
Democrats don’t like that Paxton courageously questioned whether the 2020 presidential election was aboveboard. But Paxton and his 17 fellow state AGs elected by the people were fully entitled to argue that the 2020 election was not conducted in accord with the Constitution. Specifically, the Presidential Electors Clause (Article II, Section 1, Clause 2) requires such electors to be appointed in the manner determined by state legislatures. Not by state governors, not by state courts, and not by state administrative agencies making last-minute changes in voting law under the cover of COVID-19 paranoia. The Supreme Court refused to take up Paxton’s case by a 7-2 vote, but the case was surely colorable and raised fair-minded arguments. Moreover, the Supreme Court majority did not enshrine the “Big Lie” narrative in law. They simply held that Texas lacked constitutional standing. Nothing more.
The complaint against AG Paxton was filed not by Project 65 but by a different group called Lawyers Defending American Democracy (LDAD). LDAD’s Chairman is a past litigation opponent of mine, former Democrat AG of Massachusetts (and noisy proponent of socialist climate change regulations) Scott Harshbarger. Other LDAD members include Lucien Wulsin, Founder and Director of Insure the Uninsured Project, and Martha Barnett, former chair of the ABA’s House of Delegates (for more on the ABA’s own ideological drift, see Revolver’s writeup here). They are leftists at the vanguard of leftist causes.
Are LDAD and Project 65 working together? I certainly can’t prove it. But I will go out on a limb and predict that at some point in the future, it will likely come out that they are closely aligned and coordinated.
The Texas Bar should make short work of the complaint against AG Paxton, but that situation will have to be monitored carefully. As Paxton himself noted, the lawsuit seems strategically (and politically) timed: “They’ve intentionally waited a year and a half after my Supreme Court challenge—right in the middle of an election—to do it… Worse, they announced their plans on the very first day of my election against George P. Bush—Biden’s and the Democrats’ preferred candidate for Attorney General.” How convenient.
Legal Defenses to the Project 65 Offensive
Fortunately, legal defenses to Project 65 are easy to come up with.
First, Project 65’s goals run afoul of the First Amendment’s Petition Clause, which guarantees citizens the right to petition their government for a redress of grievances. Such petitions often come in the form of lawsuits. Frivolous lawsuits can be penalized, but the standards for this are supposed to be clear-cut and limited. Judges can discipline lawyers for making factual claims that it can be proven they knew were false at the time. Lawyers who make legal arguments that flatly contradict binding legal precedent can be taken to the woodshed as well (though lawyers can always argue that case law ought to be changed as well). On the other hand, filing lawsuits supported by the sworn testimony of poll workers who saw various forms of shenanigans is categorically the exact sort of activity protected by the right to petition. So is arguing that last-minute bureaucratic changes to election laws violated Article II of the Constitution. And so is complaining about the election rigging enabled by Mark Zuckerberg’s Zuckerbucks. Marc Elias may not like to have to run to and fro defending against such suits, but there is nothing illegitimate about them simply because lawyers for President Trump filed the cases.
Second, forming an organized legal group to hound lawyers who happened to serve as advocates for Republican causes suggests a conspiracy to violate the civil rights of those lawyers’ clients, as well as the civil rights of those lawyers themselves. Civil rights laws are not the exclusive playthings of the Democratic Party. Free expression, free political association, access to the legal counsel of one’s choice—these are all foundational rights that a group of dark money-funded lawyers associated with David Brock should not be able to rip away or chase away through fear and the politics of cancelation.
Third, fire can be fought with fire. And to mix the metaphor, sometimes the best defense is a good offense. Every lawyer who is faced with the naked lawfare of Project 65 should file a counter-complaint to the bar where a Project 65 complainant is a member. All lawyers should have much better things to do than to try to deck their opponents, aiming to knock them out in a bar-grievance process resembling Fight Club.
In antitrust law, there is a form of anticompetitive conduct known as “raising rivals’ costs.” Raising the costs of legal rivals is not a proper endeavor in the American legal tradition anymore than it is fair play in business as to economic competitors. Brock is openly bragging that his plan is to starve conservatives of legal talent. His words are a self-indictment of monument proportions. His tactic should be shunned and the lawyers using it are the ones who deserve discipline.
Countering Project 65
So, what should be done to block or blunt the Project 65 dagger aimed at the heart of American lawyering? I propose a plan with three parts:
First, we need to fund, on a dollar-per-dollar basis, a Project 65 counterproject. If left unchecked, then at the least Project 65 will burden and frighten any lawyer willing to take on Republican clients. At its worst, Project 65 will go on to create lasting structural and systemic change in the American legal system. Canceling Trump-adjacent lawyers is just Brock’s starting point. The end goal is to create a reality where left-wing ideology and the legal system are one and the same. If America’s businessmen and right-leaning donors aren’t willing to step up now and fund a counter-Project of their own, then they should not be surprised if the day comes where they can’t get a lawyer either.
Whenever Project 65 shows up with a proposal to change the bar rules to tilt the playing field against one sort of party, the Project 65 counterproject must appear as well to file rulemaking comments aimed at keeping the bar rules neutral and apolitical.
Personal knowledge should be required for bar authorities to open an investigation into any Project 65 complaint. Typically, bar complaints are filed, for instance, by wronged clients alleging a lawyer absconded with money out of a trust account or that a lawyer has not worked diligently enough on their case. By contrast, Joe Officious Intermeddler shouldn’t be able to read a Washington Post article or search state and federal election lawsuit databases and gin up carbon-copy complaints about the conduct of Trump-hired lawyers they have had no personal contact with.
Any lawyer who participates in drafting a Project 65 bar complaint should be required, under penalty of perjury, to disclose his identity to the bar authorities where he or she files such a complaint. And the drafters of “model” bar complaints that Project 65 takes off the shelf to adapt to launch against any single lawyer should similarly not be allowed to hide in the shadows.
Bar disciplinary authorities should reaffirm their traditional role of being reactive. They exist to investigate complaints filed by clients, and to decide whether lawyers already convicted of crimes or sanctioned by judges should also face further discipline. As John Adams once said: “Go[ ] not abroad, in search of monsters to destroy.” State and local bars should not expend their attention and resources on a Project 65 witch hunt to make life hell for conservative lawyers who stood up against the current ruling regime.
The Prussian military theorist Von Clausewitz is famous for his dictum that “war is the continuation of policy by other means.” Project 65 seeks to invert that: To turn politics into just another mode of all-out warfare. Attacking the dignity of the bar will be the death knell of our Anglo-American legal system and for fair, competitive politics more generally. Project 65’s lawsuits are an assault on the principle of equal protection under the law and on the Constitution’s Petition Clause. This is a fight that patriotic Americans must win, or the United States will just be the latest example of a republic decayed into a phony, failed oligarchy.
Mr. Clark is the former Senate-confirmed Assistant Attorney General of the Environment & Natural Resources Division of the U.S. Justice Department (2018-2021). From 2020-2021, he was also named and simultaneously served as the former Acting Assistant Attorney General of DOJ’s Civil Division (2020-2021). Mr. Clark, unfortunately, is still mired in a subpoena fight with the House’s January 6 Select Committee. If you want to help, his legal defense fund can be found at www.givesendgo.com/jeffclark.