Support The Bulwark and subscribe today.
  Join Now

Holding the House 32 Accountable

Of the 126 House Republicans who signed the brief supporting the frivolous Trumpian Supreme Court lawsuit, 32 are lawyers. The bar should sanction them.
Holding the House 32 Accountable
Republican Representative from California Mike Johnson speaks during a House Judiciary Committee markup (Photo by Sarah Silbiger-Pool/Getty Images)

Woody Guthrie’s “The Sinking of the Reuben James,” a ballad honoring World War II Navy sailors who died at sea, poignantly asks, “What were their names?”

The same question should be asked about the 32 lawyers among the 126 House Republicans who recently signed a “friend of the court” brief asking the Supreme Court to overturn four battleground states’ election results.

The 100 officers and enlisted sailors who died on the torpedoed Reuben James were heroes; the 32 lawyer amici curiae were anything but. Their role in this sordid affair should be known and renounced before the episode fades.

The brief to which they lent their names abused the process of the highest court in the land. Their constituents and fellow bar members should know what they did.

The House members endorsed Texas Attorney General Ken Paxton’s startling effort to persuade the Court to overturn President-elect Joe Biden’s victory in Pennsylvania, Georgia, Michigan, and Wisconsin. Paxton’s petition was preposterous.

Its argument violated conservatives’ core belief in federalism, that each state is sovereign. If Texas’s theory were the law, chaos would engulf every election because states supporting the loser could contest the results in states voting for the winner. The Court summarily dismissed Paxton’s effort on December 11.

Frivolous claims like this violate the American Bar Association’s Model Rule of Professional Conduct 3.1, which states that “a lawyer shall not bring or defend a proceeding . . . unless there is a basis in law and fact for doing so that is not frivolous.” As Stephen Gillers, an expert in legal ethics at NYU Law, stated,

Ethics rules forbid lawyers to file garbage claims. . . . Lawyers who filed or joined [Paxton’s suit] ill-treated the Court, harmed the rule of law, and ill-served the public. Disciplinary investigation is necessary.

From the biographies on the website, it appears that 32 of the 126 representatives who put their names put on this meritless, unprincipled brief have law degrees:

  • Robert B. Aderholt (AL)
  • Andy Biggs (AZ)
  • Gus Bilirakis (FL)
  • Dan Bishop (NC)
  • Mo Brooks (AL)
  • Ken Buck (CO)
  • Bradley Byrne (AL)
  • Ben Cline (VA)
  • Doug Collins (GA)
  • Tom Emmer (MN)
  • Chuck Fleischmann (TN)
  • Matt Gaetz (FL)
  • Louis Gohmert (TX)
  • Morgan Griffith (VA)
  • Michael Guest (MS)
  • Mike Johnson (LA)
  • Jim Jordan (OH)
  • Trent Kelly (MS)
  • David Kustoff (TN)
  • Darin M. LaHood (IL)
  • Doug Lamborn (CO)
  • Robert E. Latta (OH)
  • Guy Reschenthaler (PA)
  • Tom Rice (SC)
  • Mike D. Rogers (AL)
  • John Rose (TN)
  • Jason Smith (MO)
  • Ross Spano (FL)
  • Greg Steube (FL)
  • William Timmons (SC)
  • Joe Wilson (SC)
  • Lee Zeldin (NY)

Importantly, these representatives also violated the oaths that they took as lawyers and members of Congress to uphold the Constitution. Attempting to disenfranchise millions of Americans in other states is antithetical to that duty. Constitutional scholar Garrett Epps called the claim to which they lent their names a “deliberate effort to destroy American democracy for political advantage.”

Ensuring adherence to oaths and professional standards requires vigilance. Bar leaders in these members’ districts should disavow these lawyer-politicians’ unprofessional behavior.

Doing so may take courage, since the bar in a congressional district can be tight-knit. Many lawyers may have contributed to the 32 members’ campaigns, or even practiced with them.

But election to office does not exempt a lawyer from criticism by fellow practitioners or from potential bar discipline.

Their breach of the rules of professional conduct was visible to the entire nation. Duty to the profession and, in this case, the country, calls upon the bar to find its voice.

If our fellow citizens are to have an ounce of respect for the law and its institutions, the profession must condemn these 32 lawyers’ abuse of the legal system for self-serving political purposes.

Correction (December 26, 2020): We have added to the list of members of Congress with law degrees who signed the amicus brief the name of Gus Bilirakis of Florida, and updated the number in the headline and body from 31 to 32 members.

Neal R. Sonnett, Eugene R. Fidell, and Dennis Aftergut

Neal R. Sonnett is a former federal prosecutor and a nationally respected white-collar criminal defense lawyer in Florida. He currently serves in the American Bar Association House of Delegates and is a past president of the National Association of Criminal Defense Lawyers. Eugene R. Fidell is a senior research scholar at Yale Law School and of counsel at Feldesman Tucker Leifer Fidell LLP. Dennis Aftergut is a former federal prosecutor and Supreme Court advocate who writes on national affairs. Like Mr. Fidell, he serves on the Lawyers Defending American Democracy Steering Committee.