The Good Lawyers of January 6

Much of the response by the community of legal ethics and professional responsibility scholars to the 2020 presidential election has been focused on the wrongs committed by lawyers like John Eastman, Jeffrey Clark, and Kenneth Chesebro, who created the alternate elector scheme to throw the decision regarding the election to the House of Representatives. Yet there was a group of lawyers, that I will refer to as “the good lawyers of January 6,” who forcefully and unequivocally opposed this plan, refused to cooperate in its execution, advised Vice President Mike Pence that it was not legally supportable, and in some cases threatened to resign in protest if President Trump went forward with it. What accounts for the behavior of these lawyers? The hypothesis explored in this article is that a commitment to the rule of law is central to the professional identity of the lawyers who refused to lend their assistance to Trump’s “Stop the Steal” efforts.

Of course, each of these lawyers may have acted for his own unique reasons, but the normative commitment shared by all of them is fidelity to the rule of law. The actions of the good lawyers of January 6 serve as a kind of ostensive definition of the ideal of the rule of law as a principle of ethical lawyering.