The professional obligations of lawyers and the Biden administration after November 5th

Law professor Kate Shaw has a good piece (gift link) pointing out that lawyers have a professional obligation not to participate in frivolous and/or fraudulent litigation, and that Donald Trump has consistently made legally frivolous — this means claims that are so baseless that lawyers who make them in court should be sanctioned by the court for making them — and fraudulent claims about how he can only lose the 2024 election via fraud.

You really couldn’t have a more textbook example of how every accusation is a confession, because making false claims about how the election is rigged against you is itself a form of electoral fraud, and Trump is committing that fraud on a practically daily basis leading up to November 5th (here it’s important to note that early voting either by absentee ballot, early in person voting, or universal mail-in voting is or very soon will be happening almost everywhere, and that therefore the election is actually happening right now).

Joe Biden’s victory was decisive enough that turning Mr. Trump’s loss into a win would have required overturning the results in at least three of the closely-decided states. So the Trump team’s efforts were not only lawless, but also essentially hopeless.

The election this year could be closer. And Mr. Trump will most likely be, if anything, more determined to win at all costs — driven not only by desire for power but also by fear of what might come of the pending legal cases against him.

In his criminal cases, Mr. Trump has a right to competent and effective counsel, and it is important that he be well represented. But the right to counsel guaranteed by our Constitution does not extend to efforts to subvert that very document.

I wish Shaw had been more emphatic about the point she makes in the last quoted graph. Not only does Trump not have any constitutional right to be represented by counsel in civil litigation, the American people have a legal right for Trump NOT to be represented in fraudulent civil litigation, because fraudulent civil litigation is not something that anyone has a right to undertake, and lawyers who do undertake such actions are supposed to be sanctioned, up to and including the revocation of their licenses to practice law. This is something that has already happened to several of the crooked lawyers who represented Trump in his fraudulent post-election litigation in 2020.

Beyond this, the Biden administration needs to be gearing up to unleash the full power of the federal government against Trump and his legal and political allies on the morning of November 6, assuming that Harris wins the election. (If Trump wins the Electoral College then it turns out the Constitution really is a suicide pact, and there’s no legal recourse for that outcome).

By that I mean that any and all federal and state laws that prohibit post-election fraud and sedition need to be enforced with absolutely no consideration for prudential arguments about not engaging in “lawfare” against one’s political opponents. If Trump and or his allies arguably violate criminal laws while trying to overturn the election they have lost — which they are practically certain to do — they need to be arrested on the spot. They can be given plenty of due process in due time, but this will not be the time for any kind of hesitation in terms of unleashing the the full legal power of the state against them. Nor will it be time to hesitate in terms of unleashing the full violence of the state against violent attempts to overturn the election, including violent protests. It’s a grim fact that a certain amount of state violence — another word for this is “law” — may have to be brought to bear against post-election seditionists, to encourage the others.

Part of this planning should include Merrick Garland’s resignation letter, dated November 6th, 2024. It would be a severe understatement to note that Garland is not a wartime consigliere, and anybody who thinks we’re not going to the mattresses on that morning — assuming again that Harris actually wins the election; after all, we are not communists — is living in the kind of reactionary centrist dreamworld we can’t afford to inhabit in America 2024.