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The Federalist Society's mugshots
Two members of Leonard Leo's organization played a leading role in Trump's coup attempt and now face felonies for it.
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Now that there are four criminal indictments of Donald Trump (five if you count the superseding indictment), the universe of hangers-on, true believers, employees, and lawyers willing to commit crimes to keep the former president in office illegally has taken shape. Some of those lawyers definitely should have known better.
When it comes to which lawyers will still represent Trump, there is, as Liz Dye explained in Public Notice earlier this month, an ever-changing cast of attorneys, many of whom are third-rate weirdos. In part, that’s because of his penchant for stiffing people who work for him, but also because he has to find lawyers willing to give voice to his more outrageous claims, such as that the FBI planted evidence at Mar-a-Lago.
However, two lawyers caught up in the highest levels in the Fulton County indictment, both of whom are also unindicted co-conspirators in the January 6 indictment, are not third-rate weirdos. Instead, they are conservatives with lengthy careers and strong ties to the Federalist Society, Leonard Leo’s breeding ground for hard-right lawyers.
A brief history of the Federalist Society and its shady leader, Leonard Leo
The Federalist Society was started in 1982 by four conservative law students from Yale Law School and the University of Chicago Law School. The society’s first conference speakers included Anontin Scalia, who was then a professor, and Theodore Olson, who worked in the Reagan DOJ as an assistant attorney general. Members of the society insist it is not an advocacy group, but rather “a forum for discussion of law and public policy from both sides” and the society’s website says it exists “to sponsor fair, serious, and open debate about the need to enhance individual freedom and the role of the courts in saying what the law is rather than what they wish it to be.” This is, of course, patently untrue.
Leonard Leo, the head of the Federalist Society, has said that his goal is to install judges who will interpret the Constitution “literally.” Of course, that’s a meaningless term even in theory, but in practice it has meant “ensuring religious conservatives, big businesses, and Second Amendment hardliners get their way.” The last several years were very good for these goals, as conservatives succeeded in getting rid of the right to abortion in Dobbs v. Jackson, kneecapping the government’s ability to regulate greenhouse gases in West Virginia v. EPA, and making it near-impossible to pass any gun control laws in New York State Rifle & Pistol v. Bruen.
Leo is in hot water right now as the Washington DC attorney general investigates his personal finances. He doesn’t just want ensure that the rest of the country is forced to follow his very narrow view of freedom. He also sits at the center of a web of interlocking for-profits and nonprofit companies that has made him extremely rich. The watchdog complaint from the Campaign for Accountability, which sparked the DC investigation, asserts that $73 million of money that went to Leo-related non-profits somehow ended up in Leo’s possession via payments to several of his for-profit companies. Dark money donors can give untraceable donations in any amount to one of Leo’s nonprofits, and those nonprofits turn around and pay one of his for-profit entities for vague things like “consulting” or “public affairs.” Then, that money goes into Leo’s pocket. In a way, Leo is a perfect avatar for the Trump era: a person ostensibly driven by conservative goals who somehow also ends up grifting his way into millions.
This is the same Federalist Society from which Trump plucked many of his judicial appointees. While 56 percent of Trump’s appointees to all levels of the federal judiciary are members, that number jumps up to nearly 90 percent of his federal courts of appeals picks. And, of course all three of Trump’s Supreme Court choices — Justices Brett Kavanaugh, Neil Gorsuch, and Amy Coney Barrett — are members.
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As are Trump’s Georgia co-defendants, Jeffrey Clark and John Eastman. And their participation in the Federalist Society wasn’t nominal. As Slate’s Mark Joseph Stern pointed out when the Fulton County mugshots dropped, Clark was the former chairman of the society’s Environment and Property Rights Practice Group, and Eastman was the former chairman of the society’s Federalism and Separation of Powers Practice Group.
Before his time in the Trump administration, Jeffrey Clark’s resume read like any other Washington DC attorney who cycles between public service and a private firm. He clerked for the Sixth Circuit right after finishing law school. Then, he went to Kirkland & Ellis, a conservative powerhouse that gave us former attorney general Bill Barr, among others. In 2001, Clark dipped into government work, serving as a Deputy Assistant Attorney General for four years in the first Bush administration before returning to Kirkland. At Kirkland, Clark represented oil companies against the government, which is likely what made him attractive to the Trump administration, and led to his job running the DOJ’s Environment and Natural Resources Division.
Eastman’s resume also shows him operating at similarly high levels in the conservative legal world. After he finished law school, he clerked for Justice Clarance Thomas. He was the founding director of the Claremont Institute, a conservative think tank that gives fellowships to people like Christopher Rufo and James O’Keefe, and was one of the very first to back Trump in 2016.
The role of Clark and Eastman in Trump’s coup attempt
At the end of December 2020, when prospects for Trump to reverse the election were dwindling, Clark, then serving as assistant acting attorney general, was going around his superiors to draft the letter Trump wanted: one which said the Department of Justice had “identified significant concerns that may have impacted the outcome of the election in multiple States, including the State of Georgia." Clark’s willingness to go along with this, which included pressuring those above him at the DOJ to send it to states where Trump was trying to overturn his losses, would have served him well in a quest to become attorney general in the next Trump administration. Indeed, far from being disgraced, the GOP now loves Jeffrey Clark, and Steve Bannon has said he would be “100 percent shortlisted” for the AG job if Trump gets back in office.
While Clark worked the angle from inside the DOJ, trying to get the agency to swing its weight behind the Big Lie, including endorsing the fake elector claims, Eastman was urging states to put together the fake slates. The Georgia indictment shows Eastman hammering Georgia elected officials and GOP stalwarts with messages about how vital it was that the fake electors meet and vote.
This is egregious behavior and in no way within the scope of the duties of providing legal advice. Nor were Clark and Eastman simply exercising their rights to free speech, an idea being tossed around over in Trumpworld as a sort of comprehensive winning defense.
It seems outlandish that two relatively run-of-the-mill attorneys would throw away their futures to follow Trump down, but these guys spent the last 25+ years immersed in a conservative legal movement that gobbled up obscene amounts of dark money to successfully capture the judiciary. They watched as their wildest conservative dreams came true under Trump. They gloated as the GOP suffered no meaningful blowback for failing to hold a hearing for Merrick Garland, former president Barack Obama’s 2016 nominee to replace Justice Antonin Scalia. They learned that if you have enough money and might, the rules don’t apply to you.
There’s no justifying this behavior
Clark and Eastman provided the blandly polite legal justification for violent insurrection. They laid the groundwork with memos explaining how to assemble fake electors and backroom deals to try to weaponize the DOJ into joining Trump’s fight. These are bloodless, boring acts in and of themselves, but they give legal cover, however thin, to those who would engage in violence. In the end, everyone involved — Trump, Clark and Eastman, those who stormed the capital on January 6 — operates from a similar mindset: if you wrap yourself in faux concern for the country's future, you can ignore the electorate's will.
Now, as Trumpland attorneys face indictments, conservatives want to create a closed cycle where no one is responsible for anything. The attorneys advising Trump on overturning an election shouldn’t be responsible because they were just doing their job and exercising their First Amendment rights. However, Trump shouldn’t be responsible either, the thinking goes, because he was just following the advice of his attorneys.
Had their efforts to overturn the election succeeded, people like Clark and Eastman would have happily reaped the rewards. But since it failed, they now want to claim they were simply spitballing some legal ideas, ones that ultimately didn’t even succeed in keeping Trump in office. But there’s no First Amendment right to try to bring the might of the federal government to bear on a state to join in your attempts to overturn an election, whether you’re a lawyer or not.
Clark and Eastman were not engaged in providing disinterested legal advice. Instead, they were drawing on their genteel background to prop up the lies that became a bloody, violent coup attempt, and they should receive no protection for that.
That’s it for today
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