Margot Cleveland, senior legal correspondent at The Federalist and adjunct professor at Notre Dame, joins the podcast to expose the scandal no one is talking about: the lawfare being waged against lawyers who step out of line politically. Margot outlines how lawyers who worked for Donald Trump, or even on behalf of controversial issues like abortion or gun control, are being targeted for professional sanction, as well as how the politicization of the law and cutting off half the country from the mainstream legal world impacts everyone else.
TRANSCRIPT
Inez Stepman:
Welcome to High Noon, where we talk about controversial subjects with interesting people. And this week, we have definitely controversial subjects and definitely an interesting person to talk about it. Margot Cleveland. Margot is the senior legal correspondent for The Federalist. She’s also been either full-time or adjunct depending on the time, a law professor with Notre Dame. She’s done a great job explaining some of these legal issues.
And I thought she’d be really the perfect person to talk about something that has really been weighing on me, in particular, the last few weeks. And part of that has been my own fault that I basically skated over in the news to the extent that there was any reporting about it. Some of these attempts to disbar the lawyers who worked on President Trump’s 2020 election fraud and illegal voting cases. Because of all of the controversy around the 2020 election, all the debate about whether or not there was mass irregularities to the extent that Trump claimed both during and after that, there were, that itself is this obviously fraught question.
I had not realized that there was this legal campaign basically to personally go after all of the lawyers who worked for President Trump on those cases, and in some cases to try to prevent them from practicing law in the future. And Margot wrote a great article about this at The Federalist back, I believe, in January. So, she was ahead of the game on all of this.
So, I thought let’s talk to Margot. Let’s talk about the consequences of politicizing the legal system both against President Trump himself and then against anyone who works for him and what that might mean for American system of justice that depends on the adversarial relationship between the two parties, both parties or the court and the defendant. Both parties having that strong advocacy from good lawyers that they can hire. So, to talk about all of that, Margot, welcome to High Noon.
Margot Cleveland:
Thanks so much.
Inez Stepman:
So, I gave some of this in the background, but could you explain for folks who haven’t been paying attention, what is going on with John Eastman’s disbarment case in California? We’ll go there first and then we’ll talk about some of other similar cases that are happening in an organized way around the country.
Margot Cleveland:
Sure. So, just as the backdrop, everyone who is an attorney in order to practice has to be a member of a bar association, has to be a member of the state bar. And the state bar then has its own rules of professional conduct, which if you can imagine, there’s some very basic ones. You should be civil to your opponents, things along those lines. You have conflict of interest rules, things along those lines.
Well, what happened is after 2020, the left basically decided that they are going to weaponize the bar against attorneys who helped Trump. And John Eastman was one of the attorneys, very well-respected attorney, and he is licensed in California. So, a complaint was filed against him in California. And the complaint was based on him signing off on a lawsuit. And the idea is that this argument that he made was just not supported by the facts, not supported by the law and that he violated his ethical duties in doing this litigation.
Well, the first thing you have to keep in mind here is lawyers, as you said, have to be advocates for their clients. They don’t always have a 100% legal argument. Sometimes the argument is kind of on the fringe where they’re making a new legal argument. That is nothing that the Bar Association should be involved in.
One of the things I find striking here is when we had non-American citizens in Gitmo, we had American lawyers going down to represent them, and that was considered great, but now-
Inez Stepman:
I remember that. They’re called the John Adams Project. I remember that.
Margot Cleveland:
Yeah. I don’t remember enough of the details. All I know is the same ones that were down defending non-Americans are the ones who are now looking at not having defenses or lawyers basically for Republicans. And it isn’t just in California, as you mentioned, this is a very disturbing trend.
Inez Stepman:
So, what are the consequences? So, I think this whole idea turns around because obviously lawyers, they’re making novel legal arguments in court all the time. This happens all the time. The entire premise of basically most public interest law firms, for example, is to make novel arguments that just to pick a totally milk toast example, IJ and some of the libertarian public interest law firms in DC, they exist to try to reestablish a sort of Lochner style standard, which for those who are not involved in having gone to law school, it’s a case that got overturned a long time ago, but included certain economic liberties as protected by the Constitution.
So, they have an explicit goal. This is not where the courts are now. We’re going to make these novel arguments and we’re going to get from A to C by making novel arguments like B. That is the entire point of the litigation that they do. And there’s all kinds, there’s examples on the left about this too. This is not a strange thing.
So, what has happened is which specific arguments or which statements of law in fact are now being challenged in this disbarment hearing? And what does it mean that the border between outright actually lying to the court as an officer of the court? Lawyers can’t do that. They can’t lie in court. What they can do is make novel arguments and then they can assert certain things or say that, for example, we assert this because we think this fact is true, but we need the trial to just proceed. We need discovery to be able to actually prove it, for example.
So, where are all those boundaries between actually misleading the court and making a novel legal argument? And why is that important here?
Margot Cleveland:
So, a couple things you said that I think are great to tease out here is when the argument is being made, you kind of have two things here. You’ve got the facts and you’ve got the law. And the bar was actually attacking Eastman on both fronts, saying that he represented facts that were not true. And as he said in his answer is, “I’m allowed to rely on experts.” And that’s what he did.
Now maybe some of the experts and their analysis of what was going on in, I can’t remember if it’s Georgia or another state, had a wrong conclusion, but a lawyer is allowed to rely on experts. They’re also allowed, as you said, to say, “We think this is where the facts are going to go.” So, that is completely appropriate.
Inez Stepman:
And normal. This happens all the time.
Margot Cleveland:
Absolutely. And if you think about it, it has to happen. Until you actually have a lawsuit in the litigation, you can’t know what you don’t know. If you think about the other case that’s kind of prevalent now, the lawsuit against the Biden administration that’s going on with Missouri and Louisiana about the government trying to censor speech.
In that case, what was really unique was that the court actually allowed them to have some preliminary discovery before ruling on whether they could take the case. And that allowed them to convince the court that, look, we do have enough evidence to show there’s this First Amendment violation. But none of that happened in the Trump case.
And a couple other points that your points teased out here is that when everyone looks at this and says, “Oh, well, he lost all of his challenges.” None of the challenges actually got to the point of evidence. And that is a problem because everyone is throwing out that these were fake claims. This was not factually supported.
And what I want to do is kind of take you to what happened with the Jeff Clark case in DC because this teases out your point about where’s the line drawn between facts and law and how far the left is manipulating the process and how dishonest the Bar Association actually is.
So, for your listeners, Jeff Clark was an attorney in the Department of Justice who stayed there through the end of the administration. You might recall that Attorney General William Barr had resigned, I think, a couple days before Christmas. There was an acting attorney general. Jeff Clark was one of the few attorney generals that was still involved who was fairly high up. He had looked at this and said, “I think there are enough irregularities that the Georgia legislature should look at this and decide whether or not the electors go to Biden-Trump or how they’re going to do it.”
He drafted a letter, pushed it towards his bosses. His bosses said, “No. We’re not going to do that.” The bar so, he’s a member of the, I believe it’s the Washington Bar, but it might be New York. This was a while ago that I was digging into it. They charged him as they did with Eastman, saying that you presented facts that were not supported and made bad legal arguments.
But in doing so, what they actually did, the Bar Association actually, or the bar I should say the state bar, actually misrepresented what Clark did. Clark never claimed that there was fraud that was enough to change the election in the letter. He spoke about election irregularities. And what the bar did is they quoted William Barr, former attorney general who said, “I haven’t seen enough evidence of fraud to change the election.”
But there were two different matters, and this is one of the huge problems with everything about the 2020 election. They are conflating, I want to say they, anyone who doesn’t want to look at the issues are conflating claims of voter fraud with the Chinese hacking into the voting machines and changing votes. They’re equating that with violations of election law that actually happened and that actually reached the margin of error.
And I want to take your listeners to Georgia. Georgia has a state law that requires you to vote in your county of residents. If you relocate before the election, you have to reregister in the new county or you are not allowed to vote. There were enough people that moved counties and voted illegally under the state law to reach the margin of error. After the election research was done on this. No court ever looked at it. When Jeff Clark wrote the letter, that was one of the issues. And part of the reason that became an issue in Georgia was that the state court delayed the case so long that it was too late for them to have a hearing on it.
Now, you can disagree all you want with that strategy of whether or not the letter should have been sent. It never was sent, but it was legitimate legal advice to make. You can disagree on whether or not Eastman’s theory about the electors was valid, but that’s what lawyers do. But instead of having that discussion, you have a group of lawyers who are trying to, in every state, I think there’s over a hundred lawyers that they’re seeking to have either disbarred or reprimanded by their bar association.
Inez Stepman:
Right. So, here’s another example, and I think it fits very well in with what the direction you’re going. So, one of the other charges against Eastman was that he doesn’t know the Constitution. Lawyers are required to know the Constitution and laws of the United States because he made this argument that in your piece you point out that the Texas AG signed on to this argument, Ted Cruz has signed on, some of them arguing in favor of this argument I’m about to make.
And some of them just saying, “No, this is a legitimate debate. This is something we need to have a discussion about in the courts and in the court of public opinion.”
And that argument is that essentially the state legislatures alone have the power to determine who the slate of electors are. Because of changes since the 17th Amendment and more, that we now have direct elections even for senatorial positions and so on. But we have direct elections and then the legislature seats the electors chosen by the direct elections.
But in fact, the Constitution gives up power pretty explicitly to the state legislatures. And there’s a question in some of these states, I think Pennsylvania as to whether during COVID, the courts inappropriately in those states have essentially interfered with the right of the legislature to determine the rules about how the electors will be chosen.
This is getting into some pretty weedy constitutional structural stuff. But this argument is clearly an argument that is based in the text of the Constitution that has been signed on by mainstream adherence of mainstream AGs and even elected senators.
And correct me if I’m wrong because some of the stuff is very complicated when you read it and not clear immediately if you’re not steeped in it like you are, is this an argument that the California Bar is essentially saying, if you make this argument as a lawyer, you should be disbarred? Or the people bringing the claim, I mean.
Margot Cleveland:
Right. And I think that that really is the essence of what they’re arguing. But like I said, they’re also kind of doing it in tandem with what the facts are. But this takes me back to the beginning where you said this kind of flew over your radar. It flew over your radar, one, because no one was talking about it. And two, the people talking about it, it really was kind of blocked.
So, the article that I wrote about Eastman said basically the argument Eastman’s making or the bar’s making against Eastman, it would mean that you have 18 attorney generals that should be also disbarred. And you couldn’t click on the link on Twitter, and it gave you this warning.
But a couple weeks later, a couple months later, the exact same argument was presented against the Attorney General of Texas where they said by him filing for the Supreme Court making this argument that you just said is very weedy, that is enough to show that he is not fit to be an attorney in Texas.
And I think that while all three of those cases, and there are more like I said, I think there’s over a hundred attorneys they’re going after, those three cases are probably the most high profile. The Texas Attorney General case though ratchets up what they are doing with the weaponization because he, the attorney general, was acting in his official capacity in a way that’s a little bit different than Clark and Eastman. They were attorneys giving advice and there should be no attack on them anyway.
But when they went after Paxton, they did it because he, as the attorney general, filed this litigation, this petition for the Supreme Court. Only the attorney general could do that, the attorney general who was elected by the people. So, what we’re seeing here is the bar who’s actually second-guessing the chief law enforcement individual at the state level.
So, when you get to the Paxton case, you actually have these weedy separation of powers issues because the bar is part of the judiciary and they’re supposedly judging what the attorney general is deciding to do. So, all of this is troubling on so many levels.
Inez Stepman:
Yeah. Because I mean to get out of the weeds for a moment and back to the sort of 10,000-foot level of why I find this all worrying and why we’re having this discussion on the podcast, it’s because it’s criminalizing making the arguments that actually when the rubber meets the road are political arguments but require sometimes in the course of political debate and then elections, those arguments are going to have to be taken to the courts at the end of the day in our system.
And in fact, that’s why I was fine with what Trump did. He took it to the courts. I know there are issues with actually getting to the merits that you mentioned in the courts, but ultimately that’s what happened in Bush v. Gore. That’s what happened. That’s how our system resolves these kinds of electoral conflicts.
And it seems to me that what’s underlying what is happening here is essentially saying, “Lawyers, if you take one side of any of these electoral disputes if you actually make the arguments to your client, you advocate on behalf of your client, you take those arguments to the court and let’s say the court accepts them or the court smacks them down, that happens every day.
It’s saying to the lawyers who do that, you better not take this case. You better not make that novel argument. You better not take Donald Trump as a client. Because you may lose your ability. You may lose your license to practice law.” I mean, am I understanding this correctly?
Margot Cleveland:
Absolutely. And the key point you made there is one side. Because before Trump, it was fine for Hillary to question the election. It was fine for challenges to be made by Gore. And all of that was considered mainstream. And you know very well if the next Republican prevails. The challenges again will be fine for lawyers to make, and it is causing the attorneys to have to second guess it.
And it’s not just when we’re talking about the election issues. You are seeing it with the attorney who went to the Supreme Court with a Second Amendment where a large law firm said, “We’re not handling those types of cases anymore.” I highly doubt that the large law firms would be the ones out there representing pro-life or family groups that do not want to have trans ideology pushed. So, everything you said is absolutely true, but I would key it on that one side because that is really what we’re seeing. We’re only seeing it on one side.
Inez Stepman:
We’ll get to Paul Clement that you referenced and the problems with the firms and how this would affect the legal profession. And I think indeed the kind of adversarial court system that we have, for example, as opposed to the UK where you’re basically arguing to the judge. And we don’t have this kind of representative adversarial system in the UK as we do in America.
What point does this bump up against the First Amendment? Because at least in the Eastman case, and I think in some of the cases that you’ve joined, he’s also being censured for statements he made to the media. So, in other words, it’s inappropriate. You can lose your law license for speaking out on say, I don’t know, a podcast, maybe somebody doesn’t like the arguments that Margot Cleveland is making on the High Noon podcast. They think that they’re bunk and that we’re a bunch of liars.
Margot Cleveland:
Don’t give them any ideas.
Inez Stepman:
But some of the things referenced in that Eastman case are not within the four corners of the courtroom. There are statements made to the media. So, at what point does that eat into or bump up against First Amendment protection?
Margot Cleveland:
And that part is a little trickier because the courts do recognize that you can have limits in what you can say when you are a lawyer. But I think that with the Eastman case and in other cases, it would get too far if they start doing it where they’re making basically the same arguments in front of the press that they’re making in their briefs or in the courtroom.
I have to go down that rabbit hole to see where they’ve drawn the line in the past. But as you know, all the bar requirements do, put a little bit of a gag on what we can say and how we can speak about judges, and how we can speak about opinions. And that’s something you always have to be kind of cognizant of.
But you are absolutely right. There are going to be First Amendment implications as the bar is being more weaponized. And the weaponization is not just coming from one side, it’s coming from the one side who in many places is controlling the bar. The bar in Texas originally tossed all the complaints against Paxton. And then a few of the attorneys who brought the complaints challenged that. And a group of attorneys who I believe it was in one of the liberal counties that was kind of targeted then reversed it and let a few of them go forward.
So, we’re seeing the weaponization by the attorneys pushing with the complaints to the Bar Association, but you’re also seeing it with who is in charge of the bar for the state. And they really are the ones who can put a break on this. What is going on in those three big cases? Every attorney should be appalled by. Every attorney should be speaking out because it is not just an attack on these individuals, it is attack on a lawyer’s and what the idea of being an advocate is. And it could easily be stopped if the bar association refused to give credit to these types of complaints.
Inez Stepman:
So let me ask you this: is it normal or typical for these kinds of disbarment claims to be brought by third parties? Because it seems like that’s what’s happening here. And I would think that the majority of these kinds of legal censure cases are brought either by the client who thinks the lawyer did something wrong in advocacy for the client or by opposing counsel or by somebody who has a direct stake in this.
It seems like a lot of these because you just mentioned these attorneys in Texas who, after the case was dropped, sort of pursued it. It seems like a lot of these cases are being brought by third parties, and in some cases, organized third parties like the 65 Project or whatever they call themselves.
Margot Cleveland:
Right. And I’m so glad you pointed that out. It was something that I had actually forgotten to mention. So, the one against Jeff Clark was brought, the complaint was by Dick Durbin. So, not just any third party, but a congressman who brought that who is a Democrat. And you’re right, usually, these complaints are someone who has firsthand knowledge of it. It’s going to be an opposing counsel, it’s going to be a client, it might be a judge, someone who has firsthand knowledge of the violation.
Once the bar opens it up to any third party, that alone is going to make it open season to have the bar basically use as the “get Republicans,” “get Trump,” get your enemy. Because what we’re seeing now is conservatives are starting to say, “Okay, your rules, let’s play by them.” And again, this is going back to the lawyers need to kind of reclaim the higher ground here.
Most lawyers are very hesitant to file a bar complaint against another attorney. I’ve had to do it once, and I was very hesitant to do it, but I felt I had a legal obligation. I have another situation where I’ve debated it, I’m like, “You know what? This has not clearly crossed the line.” Lawyers need to reclaim the higher ground and not use the bar as a way to get their enemies or to seek retribution against someone they think made a bad argument, and they’re not doing it and they’re not complaining about the fact that other third parties have.
So, one solution to this might be that the bar refuses to process any third-party complaints, because these individuals do not have any personal knowledge about the situation, and it is just rife for having a politicization of the process.
Inez Stepman:
So, let’s return to Paul Clement and having to leave his law firm for winning a case on the Second Amendment, which normally law firms want lawyers who win in court. Especially as exalted a venue as the Supreme Court of the United States, that’s generally something you would put on your website and advertise about your attorney, that they’ve won cases before the Supreme Court.
And what happened, and I talked to him on our other IWF podcast, At The Bar with my colleague Jennifer Braceras, at the time. So, how does this piece of the law firms fit in? Because it seems like the purpose — and these folks from the 65 Project have openly stated this in media, that their goal is not even to punish people going backwards. It is to use people, the attorneys who signed on to any of the cases and the complaints that were filed in 2020, to essentially scare lawyers and law firms from picking up cases of this nature.
And as you say, I don’t think it’s limited to election law. I mean, it will spread quickly to the abortion cases, to Second Amendment cases, to any politically charged cases that are being advocated for by the right. So, what is the sort of atmosphere in law firms such that … I guess the question I’m driving at here is if you are a controversial client on the right and you want to make, let’s say, a novel argument about the Second Amendment, are you going to be able to find high-caliber legal representation among most of the large law firms that would normally take that kind of litigation?
Margot Cleveland:
I don’t think so. I think that you are going to have the public interest firms on the right that are going to be where the top lawyers are going to be and going to be practicing. I don’t know if that’s a good or a bad. I mean, think it’s bad because the silo at the law firms is going to be bad for the law firms. It’s going to be bad for their ability to, if you just jump at a higher level, their ability to understand arguments on the other side.
I think that the idea that you have young attorneys who start at those law firms, it will probably push them to avoid types of cases. So maybe in the future, you’re going to have a dearth of trained lawyers who are working and representing people on the right, because you don’t have those who are getting the experience in the law firm. So, where are they coming from?
So, I think that this is something, in 20 years from now, we’ll be able to look back and say, “Ah, this is what happened as a consequence.” Right now, we’re still getting good representation, but the representation’s coming from those public interest firms. But I think that ties in very well with the idea of what’s going in the law schools.
Inez Stepman:
You’re really anticipating where I wanted to go with this because I was going to bring in the incident with Judge Duncan in Stanford Law School, where you have the next generation of white shoe attorneys coming from a top law school in the United States screaming threats at a federal judge.
And each year, you have more…. That law firms have the same problem as any large corporation in America and as our institutions as a whole, as I’ve talked about many times on this podcast and elsewhere about, there’s essentially new ranks of cultural revolutionaries who have very, very strong ideological lens applied to an increasingly lower competency, applied to the way they see what their job is. And law firms are no different. And so, there are a lot of big law firms. There’s a marked difference between the younger attorneys who are coming out of, say, Stanford Law in the last several years.
I mean, at what point do these firms lose the ability, as you just intimated or hinted at, to say, I don’t know, argue before a Trump appointee and actually be able to make a cognizant argument to say an originalist judge on the fifth circuit or something like that? Because the judiciary itself is still quite split, and there’s nowhere near the number of qualified attorneys on the right to cover all of the need for that.
Meanwhile, you’ll have these huge law firms staffed with recent graduates of our top law schools. Will they have the competence and the ability and the, as you say, the ability to understand the kind of argument that, say, an originalist judge that was appointed by the last administration might actually find convincing?
Margot Cleveland:
I don’t think they will, but I would actually go further. I don’t know if they’d have the self-restraint not to yell at the judge for saying something that they find offensive. If they’re going to yell at the judge in Stanford and do it the way they did, I can very much see the lack of self-restraint and the idea of decorum that is needed to respond to those arguments.
But you’re right. On the merits, how are they possibly going to, if they aren’t getting that discussion in the law school? And if the students are screaming at professors or screaming at judges, do you think that their classmates who disagree with them are going to say something in class that might make them a target? They’re not going to get that kind of intellectual tension they need.
And to me, it’s just amazing that we’ve come this far. I graduated, gosh, 26 years ago. My first year in law school, I remember I must have said something that was outrageously conservative, and some of the students booed. The faculty member was a first-year professor, Harvard grad, liberal. I didn’t know that at the time. He was very closed mouth on what his perspective was. He came back the next class and he railed at the students. And he said that will not be tolerated. That is not how we respond to arguments.
It didn’t bother me. I didn’t find it intimidating. But the professor made sure the students knew that that is not how you respond to an argument that is presented to you. And every time I hear of what happened at Stanford or another school, I remind myself of that situation. It’s not just the students that are allowing the legal profession to go down this route. It is the advisors, it is the faculty, it is the dean.
And like I said, lawyers need to step up. They need to say, “Not on my watch. Our profession will not be overtaken by politics. The bar will not use politics as a weapon. Our law school will make sure that diverse viewpoints are valued.” So, as much as this is a problem to society, the solution is there, but unfortunately, the lawyers are not stepping up.
Inez Stepman:
Is that realistic? I guess my question is, so I feel like we can print this question with regard to a whole bunch of institutions. And the question is, is it realistic to return to the standard that I agree is completely disappearing from the legal profession? And I would love to see a standard that, essentially, that condemns from both sides any kind of politicization of the justice system.
But is there any way to get back to there? And is it better than it to maybe build what you were talking about, or seem to allude to earlier, about essentially a secondary pipeline? In other words, will these cases then go to a series of small boutique firms where Paul Clement has just started his own firm to do this kind of Second Amendment work or other kinds of conservative cases that he wants to take?
Do we need to build a totally different pipeline? Do we need to start different law schools or take over a couple mid-ranked law schools? Do we need a Hillsdale, essentially, solution for the right in the legal profession, or do you think there’s still a way to restore some semblance of non-political standards to, say, Stanford and Yale and then correspondingly to the big law firms of New York and DC? Or do you think that that ship is out of the harbor, it’s gone?
Margot Cleveland:
I haven’t quite given up on the ship. I’m probably straddling the ship and the pier trying not to fall in the water. And it’s not just with lawyers, it’s with everything. Should we give up on the legacy media outlets? Should we give up on the social media, public education? Do we have to create our secondary economy on everything, law firms, law schools, social media, banks, or is there still hope?
Like I said, I am still hanging on, hoping that we can get people to come forward. But when you look at what happened with the Twitter files and how the journalists, Matt Taibbi and Michael Shellenberger, neither of whom are conservatives, both of whom have more than enough cachet that should have caught the attention of other journalists and hasn’t. And I think that I’m going to have to let go pretty soon and say, “Okay. We need our alternative economy. We need our alternative law school.”
And the same goes with this. If going after Eastman, if going after Clark and the attorney general of Texas was not enough to shake some of the classical liberal lawyers, then I don’t know what is. One of the things that I thought was just amazing was when Eastman had a press conference, and he had several speakers speak on his behalf. One was the old-school ACLU guy. I had so much respect for him because he disagreed probably with everything that Eastman has ever presented in probably every legal argument. And yet he saw the danger.
But there was one, only one person. So, I like to still hang on just because I’m kind of an optimist by nature, but I am recognizing that the alternative economy on all fronts is becoming more likely a reality.
Inez Stepman:
It seems to me that one advantage that we, those of us on the right, have in this particular institution in the legal world is that the judiciary is ultimately politically appointed. Once they go in, they serve for life. But obviously, each administration has their bite at the apple. And the administrations change over because there’s a political and democratic debate in this country about what direction we want to go in.
So, therefore you have a large percentage of the judiciary that understands because they’re appointed by Republicans or because they have a general conservative perspective or because they’re the one guy that you just alluded to, who’s an ACLU lawyer or classical liberal or perhaps was appointed 30 years ago when the judiciary wasn’t so political. And it seems to me that there’s a significant, I don’t know exactly what the numbers are, but significant portion of the judiciary that is going to be horrified by this and is probably horrified by this.
So, do you think that’s something, for example, we don’t have in corporate America, if we’re talking about why Disney is going woke? There’s no sort of jurisdiction over Disney’s decisions that we have as citizens of America because it’s a private company — and this is not to say that I don’t agree with some of the state action that DeSantis is taking, but that’s like a different story.
I don’t have any right to tell the Disney CEO board like what they should produce this year. It’s not a democratic system. Whereas we, the people, do elect a president who then selects the judges and appoints them. And then we elect the people who confirm them in the Senate. We have this explicit political mechanism in law that we might not have in some of these other institutions.
So, with all of that in mind, what do you think about…. So, Judge Ho I know has proposed, for example, that he’s not going to hire clerks from Yale, and I think now from Stanford because the schools have demonstrated that they don’t understand the First Amendment of the Constitution. They don’t understand how to teach their students to actually have an argument in a way that isn’t shut down.
Do you think that’s a possible way to actually apply pressure to some of these schools? Because I mean, until half a second ago, and I know they’re now dropping the LSAT and they’re preemptively looking at removing, trying to remove themselves essentially from the U.S. world news report rankings.
But until recently, it was quite a feather in the cap of a school how many clerks, for example, from each class here ended up clerking for the Supreme Court. Or how many people are in the appellate clerkships? How many appellate clerkships the law school at a given class has? This is part of how the schools, elite schools, compete with each other.
So, is that a possible leverage, if we can get enough of the federal judiciary to go with a sort of Judge Ho route where they say, “No, we’re going to punish you as an institution, as a school. We will not be hiring from you as clerks if you don’t demonstrate some basic adherence to the Constitution and the rule of law”?
Margot Cleveland:
So absolutely, and I would say when those announcements were coming out, what I actually said to myself was, “No, what you need here is a Sotomayor who’s saying this. You need someone on the left who says, ‘I am not going to do it.’” Having the people on the right do it might have some pressure, but if you have a judge who is on the other side of the political aisle or the originalist aisle, so the kind of living Constitution side saying, “No, this is not tolerated,” that is where the biggest pressure is going to come from.
I think, though, that when you talk about where these next generations of attorneys going to be kind of groomed and trained, that probably is going on a lot more silently. So, it’s not going to pressure the law schools, but it will ensure that we have a new group of lawyers who’s being trained by the judges when they’re deciding who are they going to employ, they might opt against the Stanford, and go for the Ave Maria School of Law grad, thinking, “Look, this individual has shown that they are solid at what they do,” and that will then ratchet them over to some of those smaller boutique firms.
So, I do think it would put pressure on, but I think that the pressure maybe won’t be enough unless we get some of the judges who are Democrat-appointed judges to stand up and do the right thing there. But even if the judges aren’t, if the originalist judges are hiring law clerks who remain committed to originalism, at least we’re still getting some training going on that way.
Inez Stepman:
Yah, you really are an optimist if you think there’s some Democratic-appointed judge is going to speak about this, you are a real optimist. So, let’s bring it back down to what this means for the rule of law and the average person in America. All of this sort of elite law school stuff, who clerks for whom, who’s getting disbarred, a lot of this seems very esoteric to a large percentage of the population.
But what do you think the potential consequences of this kind of politicized lawfare is for the average person and their ability to trust that the justice system and the rule of law in America is being applied equally, regardless of one’s political views and whether they’re favored or disfavored by the party in power?
Margot Cleveland:
So, I think that the consequence from the perspective of the public is going to be that you’re either a right knee-jerk judge or a left knee-jerk judge. And John Roberts can say all he wants, there’s not Republican justices and Democrat justices. Americans don’t believe that anymore, and they’re not going to look at our system as trying to find justice. But I actually think the bigger consequence to the average American is not in the legal system. It’s in the continuing fracturing of our country.
So, the discussion we had 10, 15 minutes ago about are we going to have this alternative economy where there’s alternative law schools and alternative law firms, that is destructive to average Americans where we now are taking sides against each other. So, this lawfare that is going on, every American should care about because it is another spoke in the wheel that is going to drive this country into the ditch because we are so separated. We can’t take on China. We can’t take on Russia. It’s no longer us against them. The infighting is going on, and the lawfare is merely one area where it’s happening.
Inez Stepman:
So, one institution, it strikes me this is particularly dangerous in the law in a way that it’s also dangerous in all the ways you listed, but I think that applies to the media, to the Fortune 500, to government agencies. But in some way, the law is an institution that people can’t avoid.
So, here I’m thinking about folks who live in a red state, maybe in a rural area of a red state, where most of their neighbors are politically right or center, and they’re living life much… they’re basically ignoring a large part of what’s going on in the elite institutions. In the elite institutions, I think this kind of politicization has already been in place for 20 or 30 years. But you do get the sense that there’s a large part of the country that just decides they don’t have to interact with it. They don’t really need to interact with Yale undergraduate department of whatever, of gender studies, or they don’t really need to interact with what’s going on as an employee of the Disney Corporation or something like that, right?
Let’s say a rancher in Arizona. The one institution, or one of the few institutions, that you can’t avoid interacting with are the courts. If you need to enforce an easement for your cattle against the neighboring farm, you’re going to have to interact with the courts. If you’re falsely accused of a crime, obviously if you commit a crime, but let’s say you’re falsely accused of a crime, you have to then go through the courts and go through a trial and assert your innocence.
And I worry that there is going to be an incredibly combustible contact point between what the legal world is becoming and your average sort of your Arizona rancher guy that I just made up as an avatar for a certain part of the population. What happens when it’s dean, whatever her name was, Steinbach from the Stanford DEI dean, Stanford Law DEI dean, who was lecturing Judge Duncan about whether the juice is worth the squeeze? What happens when somebody with that mentality and that level of ideological application in the law is a judge in Arizona dealing with a dispute between two ranchers?
Margot Cleveland:
Right. So, I think that there is a concern that the public, when they are faced with those situations, are either not going to get justice or that they will believe that justice is skewed even if they do. But I also think the reality is that even though we’re a litigious nation, going to court, even the needs to enforce an easement — that’s still a fairly rare scenario — I think the bigger ramification is going to be the rancher in Arizona when they have a close election, and they feel that the courts are not doing justice there.
And that was one of my big beefs and to circle all the way back to the beginning about what happened in 2020 is that there were serious election integrity issues, and everyone who was either on the left or who was a never-Trumper put those all under the category of voter fraud and has demonized anyone trying to talk about voter election integrity.
I went back and looked at the Carter report, which was written, I think, in 2005. There was a bipartisan commission that came out after Bush v. Gore and said, “We need to shape up because we’re losing faith in our elections.” Every single thing that they said was wrong then is wrong in spades now. And everything they suggested as fixing it, you now are having people on the left saying, “No, we can’t do that. That’s racist. No, we can’t do that. We are infringing on people’s right to vote.”
So, I’m more concerned about the person in Arizona who may never see a courtroom, seeing on television a courtroom where they no longer can trust the outcome of the election. That, I think, is going to be much more damaging to our democracy when we kind of see this lawfare play out.
Inez Stepman:
Yeah. You very well might be right about that. Margot Cleveland, thank you so much for spending this hour with us and taking us through some of these extremely complicated matters that, as you’ve pointed out so well, do have real consequences and broader consequences, as to whether or not the citizens can trust their elections, whether or not they can rely on a single standard of justice. Sadly, the answers to those questions seems to be no.
And that’s obviously, among many other things, obviously very worrying about the trajectory of this country, but thank you for coming on High Noon and explaining some of these cases and their importance to the listeners.
Margot Cleveland:
Thanks so much. It was great to chat.
Inez Stepman:
And thank you to our listeners. High Noon with Inez Stepman is a production of the Independent Women’s Forum. As always, you can send comments and questions to [email protected] Please help us out by hitting the subscribe button and leaving us a comment or review on Apple Podcast, Acast, Google Play, YouTube, or iwf.org. Be brave, and we’ll see you next time on High Noon.
