There’s no way around it; there simply is no legal basis for the legal strategies put forth by lawyers of Donald Trump designed to undermine the results of the 2020 presidential election.
Exhibit A: Jeffrey Clark, former acting assistant attorney general in charge of the Civil Division at the Justice Department. This week, a three-member disciplinary panel in Washington, D.C., came to a preliminary, nonbinding conclusion that Clark violated his ethical duties as an attorney when he attempted to help overturn the 2020 election and thwart the peaceful transfer of power to Joe Biden.
Between Clark, Eastman and Giuliani, it’s difficult, and perhaps pointless, to pick whose alleged conduct should get special mention as the most dangerous.
Specifically, Clark claimed there were problems with the election results. The problem here for Clark is that there were not. Indeed, Clark unsuccessfully asked his superiors at the Justice Department to issue a letter contending that the 2020 election results were fraudulent. They weren’t, and no such letter was issued.
Clark has not yet faced the nuclear option of being stripped of his license to practice law. A decision by the D.C. Bar Association’s disciplinary board as to what, if any, punishment Clark will receive will come after it reviews further submissions from both Clark and the disciplinary investigators.
Exhibit B: Rudy Giuliani. Giuliani has also faced a disciplinary proceeding by the D.C. Bar authorities for his role in attempting to baselessly challenge the 2020 election results. A different three-member panel recommended Giuliani’s disbarment. In this case, Giuliani’s misconduct centers on his push to file legally groundless lawsuits in Pennsylvania to challenge Biden’s win in that state. The language the panel issued in its initial findings is damning. They concluded that “Mr. Giuliani’s effort to undermine the integrity of the 2020 presidential election has helped destabilize our democracy.” They also described his claims as “malicious and meritless.” Giuliani did not push a legally novel lawsuit, he pushed a legally baseless one. We are waiting for a final decision in that case by the D.C. Bar’s Board of Professional Responsibility. Giuliani’s law license was also temporarily suspended in New York.
Exhibit C: John Eastman, who also hatched a plan for Trump to stay in office after Trump lost the 2020 election. Here again, the problem was the lack of legal basis for any such plan. Eastman is famous/infamous for drafting a memo in which he argued that former Vice President Mike Pence had the power to refuse to certify the electoral college votes on Jan. 6, 2021. Luckily Pence did not follow this plan, correctly understanding that he had no constitutional power to do so. A California state judge concluded that Eastman violated ethics codes and should lose his license.
Between Clark, Eastman and Giuliani, it’s difficult, and perhaps pointless, to pick whose alleged conduct should get special mention as the most dangerous. The difference between Clark and Eastman and Giuliani is that Clark’s threat to our democracy came from within, and served in our government when he sought to undermine it. Clark sought to weaponize the Department of Justice for political ends. Trump, naturally, does not view facing disciplinary action by an ethics board as disqualifying Clark from serving in a senior position in a future Trump administration. This should not come as a surprise, as he does not think that facing 91 felony counts should disqualify him from holding the highest office in the land. Speaking of criminal charges, Clark, Eastman and Giuliani have something else in common: They are not just lawyers facing disciplinary proceedings and potential disbarment; they are also co-defendants in the Georgia election interference case pending against Trump. And it’s worth emphasizing why. Some of the same alleged conduct that could lead these three lawyers to lose their bar licenses could also cause them to lose their freedom. At bottom, they’re each accused of attempting to undermine our government. They’re each accused of abusing their place in the legal profession to subvert a representative democracy built on the rule of law. Clark, Eastman and Giuliani must face repercussions for their actions. The fact that the three lawyers were unsuccessful in undermining the peaceful transfer of power does not counsel for letting them off scot-free. Trump is the presumptive Republican presidential nominee. If he wins the election in November, he will likely pack his administration with more loyalists like Clark, Eastman and Giuliani. Given their actions and alleged actions, however, they belong as far away from any position of power, as does their would-be boss.
Jessica Levinson is a Loyola Law School professor and MS NOW columnist. 
