Mark and Dahlia The Butchers

I remember the first time I received death threats. I was up in Albany, about to argue before the New York Court of Appeals, and a suit I filed on behalf of my client, Troy Canty, against Berhard Goetz made the front page of the New York Post. I called the office to see if I had any messages, and my secretary told me that I had a few hundred death threats. That was 1985. I’m still alive.

I get the occasional death threat these days. It’s usually because of something I’ve written here or twitted of which someone disapproves. Sometimes it’s from someone on the right. Sometimes the left. It doesn’t concern me, not because death threats aren’t concerning, but it’s easy for to people make noise. Doing something is another matter, and it’s doubtful that anything I have to say matters enough to get anyone to do something.

That’s not true for other people, however. Portland Commissioner Dan Ryan cast the deciding “no” vote against defunding police, only to find his home the target of mostly peaceful protests and violence.

Upon arrival, they chanted “Black lives matter” and shattered a window and two terracotta planters. They lit flares and chucked eggs and balloons filled with paint at the home.

Not the end of the world. Not as bad as being beaten or killed. But way over the line of what is acceptable for a person doing the job of commissioner, which includes making decisions that some will disagree with. It does not come at the price of mob violence against them. Not at their office. Not at a restaurant. Not at home.

At Slate, two unduly passionate legal pundits, Dahlia Lithwick and Mark Joseph Stern, want you to know this is a “con.”

The next target is likely to be big prestigious law firms, which they will say were bullied out of representing the president’s interests by vicious partisan attacks. In fact, some prominent attorneys have already begun criticizing the criticism of Trump’s legal team. They fret that going after Trump’s lawyers could lead to a broader campaign against law firms that take on unpopular clients, a practice that undergirds our legal system’s ability to function. Just as someone has to defend accused murderers, someone had to file these Trump suits, they say.

But nothing can be further from the truth. The firms that lined up to try to disenfranchise tens of thousands of voters in Michigan or Pennsylvania based on claims they failed to research, refuse to check, or never believed in the first place should be scorned and sanctioned—not because they stepped forward to defend an unpopular client who had a right to representation but because they willingly and cynically volunteered to help Trump try to reach victory at any cost.

Perhaps they are as puny-minded as to believe this is just about representing Trump’s attempt to steal an election. This time it’s existential, so it’s different. Ends justify means. Insert whatever trite platitude you prefer.

Please do not allow yourself to be conned into thinking that the efforts to bring public attention, scorn, and ridicule upon attorneys and law firms filing what appear to be almost universally frivolous lawsuits are unfair “bullying.”

The argument is that what Biglaw firm Jones Day is doing by representing Trump fails the nuanced distinction between the defense of a hated criminal defendant because the accused has a constitutional right to counsel. While that’s accurate, we already seen the woke distinguish the poor public defender who’s duty-bound to defend the hated accused from the private criminal defense lawyer who voluntarily takes on the case of the worst defendant ever. Just like Jones Day, that lawyer chose to defend evil, so he is evil and deserves the “public attention, scorn, and ridicule” of the puny people like Stern and Lithwick.

But being criticized for who you represent or how you represent them is nothing new, and not the real issue. Lawyers are scorned and ridiculed all the time. They always have been. If lawyers bring frivolous actions, they should be criticized, and there are punishments, from sanctions to disbarment, that should be imposed.

But that wasn’t the problem about which “prominent attorneys” “fretted” at all. Dahlia and Stern are being disingenuous, which is a nice way of saying they’re liars. The problem is that they’re defending the Lincoln Project’s call to their millions of adoring Trump-hating fans to go after the lawyers. In real life. In real ways. And do them personal harm.

First, the Gertrude.

No lawyer should be subject to doxing, harassing phone calls, or threats of bodily harm. But that doesn’t mean there should be no consequences for lawyers and law firms, especially elite lawyers and law firms, that participate in fundamentally abhorrent legal enterprises.

But then, mobs don’t wield scalpels, but bludgeons. And when the call-to-arms is to get the mob to attack, which was exactly what happened, and what Lithwick and Stern knew happened, and knew was the basis for us “fretting” lawyers, their effete pretense that this isn’t about “doxing, harassing phone calls, or threats of bodily harm,” and maybe a lot worse, as happened to Portland Commissioner Dan Ryan for voting wrong, is a steaming pile of bullshit.

Any attorney who seeks to disenfranchise hundreds of thousands of voters on this basis is a bad lawyer, and we would venture, also a bad citizen.

The Lincoln Project called on its followers to go after the lawyers involved, doxing them. It told its followers to call their offices, harassing them. It told its followers to call the first clients to harass them too. It’s not a stretch to find the lawyers home addresses, the schools their children attend, and start lighting fires, throwing rocks, maybe a bullhorn in the middle of the night of outraged people expressing their views about their choice of client. After all, they’re “bad citizens,” and why should be citizens not be informed by the mob of their badness.

In a series of twits reflecting the moderated speech only an academic can manage, Orin Kerr, one of the “prominent attorneys” accused by these two of “conning” the public gently replied as to why he disagree with them.

Over at Slate, @Dahlialithwick and @mjs_DC argue that those of us who object to @ProjectLincoln's campaign against @JonesDay are not just mistaken, but are trying to con you.

Here's a thread on why I disagree.https://t.co/rULvT4gfTf

— Orin Kerr (@OrinKerr) November 17, 2020

Unlike Orin, I am less kind, less moderated in my speech, and so I will say what he did not. Lithwick and Stern are fascists of the left, spewing lies that aspire to sophistry, in the hope of riling up their tribe’s mob to prevent lawyers from defending their hated enemy. They are the proud spiritual descendants of Dick The Butcher.