On Friday, Judge Beryl Howell of the U.S. District Court for the District of Columbia ordered Evan Corcoran, one of former President Donald Trump’s lawyers, to answer questions Corcoran had declined to answer in January before Special Counsel Jack Smith’s grand jury. The grand jury was investigating Trump’s apparent crimes, including obstruction of justice in hiding top-secret government documents at Mar-a-Lago and pretending not to have them.
The recurring role of Trump lawyers in criminal investigations of the former president illustrates the acuity of an observation from Alexis de Tocqueville, history’s preeminent chronicler of 19th-century America: “Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.” That often puts lawyers front and center in America’s political questions.
Tocqueville also observed that in the sweep of Western history, lawyers have sometimes served as “the instruments of the political authorities,” while at other times, “they have exerted themselves effectively to limit the [ruler’s] prerogative.”
Put another way, in the United States, more than in countries less heavily dependent on the legal profession, lawyers and the law can be defenders against tyranny or our potential Achilles heel.
We see the tension at work in Judge Howell’s reported order—not the first time courts have had to grapple with both sides of that equation when dealing with Donald Trump and his counsel. The grand jury questions Evan Corcoran refused to answer had sought to uncover conversations, ordinarily confidential, between Corcoran and his client.
Judge Howell invoked the “crime-fraud” exception to the attorney-client privilege to cut through that usually impregnable shield. The exception allows a court to pierce the ordinary confidentiality of attorney-client communications that appear to involve attorneys engaging directly with their clients’ criminal schemes. In closed-door hearings before Judge Howell, Smith apparently had provided enough evidence to convince her that the Trump-Corcoran discussions were exactly that.
With Trump, a pattern is emerging. Almost exactly one year ago, another federal judge found a similar abuse of Trump’s attorney-client privilege and compelled another lawyer to disclose otherwise confidential communications. On March 28, 2022, in response to a suit brought by the January 6 committee, Judge David Carter ordered Trump lawyer John Eastman to provide it with emails he had claimed were privileged. Those emails evidently exposed the scheme Eastman orchestrated with Trump to overturn the 2020 election.
Trump has been a master at luring lawyers into his web. Indeed, Corcoran may have done more than merely engage in criminal conversations. Reportedly, Judge Howell also ordered Corcoran to respond to questions about his role in preparing a false June 3, 2022 affidavit that he gave the Justice Department. That sworn statement said that a search of Mar-a-Lago by Trump personnel had revealed no further government documents responsive to a May 2022 subpoena.
The affidavit was proven false when the August 2022 court-authorized search of Mar-a-Lago turned up hundreds of responsive documents.
Trump lawyer Christina Bobb signed that affidavit. Corcoran is reported to have instructed her that the affidavit’s contents were true. When he appears before the grand jury again, he may well be invoking the Fifth Amendment.
Corcoran and Eastman were far from the only lawyers to fall under Trump’s spell. The New York court suspending Rudy Giuliani’s law license comes to mind, as does the Colorado bar censuring his protege, Jenna Ellis, this month when she admitted her misrepresentations in service of the former president’s lie that his election was stolen.
Tocqueville was careful to note that lawyers, “like most other men, are governed by their private interests, and especially by the interests of the moment.” Legal practitioners enticed by power to stray from the path of integrity can become crucial tools for “legalistic autocrats.” Political scientists coined that term to describe 21st-century authoritarians like Hungary’s Viktor Orban who, rather than using the military to seize dictatorial power, misuse the law to burrow their way into it. Trump and Orban are cut from the same cloth.
Shakespeare, in Henry VI, part 2, had Dick the Butcher, a murderous, book-burning villain, issue the now-famous line, “First, let’s kill all the lawyers.” That line is often mistaken as an expression of the profession’s disrepute. In truth, Shakespeare’s villain was declaring the opposite. He hoped to avoid the accountability to which he feared lawyers would hold him. Today, it’s groups of lawyers who have initiated the disciplinary complaints holding Giuliani and crew to account.
Unlike Dick the Butcher, villains of authoritarianism like Orban and Trump have figured out that you don’t need to get rid of all the lawyers: it’s enough to corrupt a few. Stopping America’s would-be autocrat will require voters, prosecutors, lawyers of integrity, and the judiciary. On Friday, Judge Howell said once again that the district court in DC was committed to the rule of law as our shield against tyranny.
