Former President Donald Trump has now been arraigned and pleaded not guilty. He was represented by two lawyers, neither of whom he apparently wants to lead his defense at trial. He has been interviewing Florida lawyers, and several top ones have declined. I know, because I have spoken to them. There are disturbing suggestions that among the reasons lawyers are declining the case is because they fear legal and career reprisals.
They have threatened to file bar charges against any such lawyers.
When these threats first emerged, I wrote an op-ed offering to defend pro bono any lawyers that The 65 Project goes after. So The 65 Project immediately went after me, and contrived a charge based on a case in which I was a constitutional consultant, but designed to send a message to potential Trump lawyers: if you defend Trump or anyone associated with him, we will target you and find something to charge you with. The lawyers to whom I spoke are fully aware of this threat -- and they are taking it seriously.
There may be other reasons as well for why lawyers are reluctant to defend Trump. He is not the easiest client, and he has turned against some of his previous lawyers, as some of his previous lawyers have turned against him. This will be a difficult case to defend and an unpopular one with many in the legal profession and in general population.
Good lawyers, however, generally welcome challenges, especially in high-profile cases. This case is different: the threats to the lawyers are greater than at any time since McCarthyism. Nor is the comparison to McCarthyism a stretch. I recall during the 1950s how civil liberties lawyers, many of whom despised communism, were cancelled, and attacked if they dared to represent people accused of being communists. Even civil liberties organizations stayed away from such cases, for fear that it would affect their fundraising and general standing in the community. It may even be worse today, as I can attest from my own personal experiences, having defended Trump against an unconstitutional impeachment in 2020. I was cancelled by my local library, community center and synagogue. Old friends refused to speak to me and threatened others who did. My wife, who disagreed with my decision to defend Trump, was also ostracized. There were physical threats to my safety.
Our system of justice is based on the John Adams standard: he too was attacked for defending the British soldiers accused of the Boston Massacre, but his representation of these accused killers now serves as a symbol of the 6th Amendment right to counsel. That symbol has now been endangered by The 65 Project and others who are participating in its McCarthyite chilling of lawyers who have been asked to represent Trump and those associated with him.
Trump's lawyers have now alleged that one of the prosecutors has suggested to Stanley Woodard, the lawyer for Waltine Nauta, Trump's co-defendant, that his application for judgeship may be negatively affected if he persists in defending Nauta vigorously rather than encouraging him to cooperate against Trump. If that is true – I have not seen the evidence to support it – then it represents a direct attack on the 6th Amendment.
Whatever one may think of Trump or the charges against him, all Americans must stand united against efforts to intimidate lawyers and chill them from defending unpopular clients pursuant to the 6th Amendment. Bar associations must look into the threats and actions of The 65 Project and of prosecutors who try, by subtle or other means, to influence the representation of clients by threats to their careers or other means.
Hard cases may make bad law, but partisan cases endanger constitutional rights. We must do everything to assure that all defendants, including Donald Trump, get the zealous representation to which the Constitution entitled all Americans.