Lawyers and the Theory of the ‘Big Lie’
Disputes over the 2020 election are now playing out in disciplinary proceedings against some of President Trump’s election lawyers. Calls for discipline should be analyzed both with respect to the legal theories advanced in President Trump’s election challenges and with respect to the support adduced for those theories.
This Article assess what it calls the endgame theory, a theory comprised of (i) the Independent State Legislature theory; (ii) an assertion about Vice Presidential power under the 12th Amendment; and (iii) an assertion that parts of the Electoral Count Act are unconstitutional in view of (ii). (The factual assertions behind such claims are the subject of a separate work.)
Advocacy of step one, the ISL theory, is not itself sanctionable. That theory is underdeveloped, but at least four justices and one court of appeals opinion endorse some version of the theory. That, combined with its as-yet poorly defined contours makes discipline an unrealistic response to advocacy. As used in 2020 election challenges, it is clear that the ISL theory has the potential to set election law at odds with democracy. Disciplinary actions will not stop that effort, however.
Regarding step two, the law is constantly remaking itself and lawyers are the principal (though not sole) makers. The endgame theory tests whether law can effectively impose internal limits on this process. The answer to that question ultimately is “no,” which suggests that calls for discipline are not sufficient to address the larger questions called by President Trump’s election challenges. The current, dominant conception of the Vice President’s power under the 12th Amendment is not a fact external to legal rhetoric but an achievement within it. Like all such achievements, it is provisional.
It might be possible to make a formal case for discipline based on extrajudicial advocacy of the endgame theory, but prudence counsels caution in pursuing it. Not every case that can be made should be made. One might think that is the most important point exemplified by the endgame theory.