The Fake Electors Memos Are Like the Torture Memos
In college and law school, I made the acquaintance of people who would go on to have a substantial impact on the republic. I was glad to get to know some of them, like President Barack Obama, who was my contemporary in law school, and Senator Chris Coons, whom I debated against as an undergraduate. I also crossed paths with some folks who would use their talents to support ends I oppose. As I discussed in 2017, Kris Kobach, who is now the Attorney General of Kansas, built his political career by attacking immigrants and seeking to restrict voting rights; I knew him as a talented debater in college. Justice Brett Kavanaugh and I worked at the same law firm as summer associates in 1989.
Until last week, no one I knew from college or law school had (so far as I had learned) been named as a co-conspirator in an indictment. But then came the latest Trump indictment, which includes allegations that unindicted Co-Conspirator 5 is "an attorney who assisted in devising and attempting to implement a plan to submit fraudulent slates of presidential electors to obstruct the certification proceeding." Co-Conspirator 5 is Ken Chesebro, with whom I worked on a number of projects a third of a century ago.
As a law student, I was a research assistant to Prof Laurence Tribe. Chesebro was then a young lawyer who was also working for Prof Tribe. For the most part, Prof Tribe used his student RAs for assistance with his scholarly work and a small number of lawyer assistants (who were former student RAs who had graduated, clerked, and then returned for a stint) to help with his litigation. Chesebro and a few others were the rough equivalent of associates in a law firm with Prof Tribe as the named (and only) partner.
However, there was crossover in the assignments. For example, this November 1989 article by Prof Tribe in the Harvard Law Review acknowledges assistance by three students--Rob Fisher, Barack Obama, and me--as well as two lawyers--Gene Sperling (who would go on to become a high-ranking advisor in the Clinton, Obama, and Biden administrations) and . . . Ken Chesebro. Meanwhile, sometimes Prof Tribe would assign a student RA to a litigation task. I can recall at least three cases on which I worked on which Chesebro also worked. I thus knew him reasonably well.
My recollection of Chesebro was that he was mild-mannered and a very smart lawyer. He came across as nerdier than the rest of the bunch (which is saying something!). He gave absolutely no indication that he would end up assisting in the first-ever scheme by a sitting President to remain in power after having lost an election.
But that was a long time ago. I learned from Prof Tribe's recent explanation of the ways in which Chesebro mischaracterized his work in one of the memos to Trump that Chesebro worked on the Gore legal team (which Tribe led) in the post-2000-election litigation. I had an informal role in that effort as well, but I don't recall any contact with Chesebro from that time. Thus, because my contact with Chesebro ended a very long time ago, I don't have any personal knowledge about how he ended up as part of the Trump team of attempted democracy destroyers.
Did Chesebro long harbor the sorts of views that made Trump an appealing figure to him? In a Talking Points Memo article last year, both Prof Tribe and Jeff Toobin--who was a student RA for Tribe when Chesebro was (as was Justice Elena Kagan)--expressed surprise that Chesebro was working for Trump. In a new essay, Toobin reports that Chesebro was a long-time liberal who got rich by speculating on crypto-currency and then started donating money and time to right-wing politicians. Meanwhile, the Talking Points Memo article reports on conversations with Chesebro in which he leaned hard into the role-morality of a lawyer whose job was zealous representation, including exploring all possible options.
In that way, Chesebro echoed Alan Dershowitz, who defended Trump during his first impeachment trial. Last year, in an unintentionally hilarious bit of self-parody, Dershowitz responded to my jokey blog post congratulating him for winning my online contest for most embarrassing Yale Law School alum by comparing himself to John Adams, Abraham Lincoln, and Thurgood Marshall, among other of his "heroes," for heroically representing "the most hated and vilified defendants."
To be fair, there is something to be said for the view that lawyers act nobly by defending extremely unsavory characters--at least when the representation occurs in open court before an impartial judge and/or unbiased jury. In such circumstances, the adjudicators will evaluate the arguments and evidence presented by well-represented defendants alongside counter-arguments and contrary evidence offered by the prosecution. The adversary system is hardly perfect, but, at least in theory, the zealous lawyer for a criminal defendant can say that he's playing an important role in putting the government's evidence to the test.
That claim is much less persuasive when the adjudicator is the U.S. Senate applying obviously political criteria. In representing Trump during a Senate impeachment trial the outcome of which was a foregone conclusion, Dershowitz was not putting the government to its test but providing cover for Republican Senators who were going to vote to acquit regardless of the arguments and evidence. That was a fundamentally political act that associated Dershowitz with his client Trump in a way that his and other defense lawyers' representation of criminal defendants against prosecution does not necessarily forge such associations.
Even more so, the giving of advice to a client behind closed doors cannot be so readily justified by bromides about how everyone deserves representation in an adversary system, because when a lawyer gives a client such advice there is no adversary. That's true for lawyers advising all manner of clients but especially for lawyers providing legal advice to government officials in contexts in which the latters' actions will either never be reviewed by a court or be reviewed by a court only after substantial damage has been done.
Chesebro represented Trump and the Trump campaign personally. He was not, so far as I'm aware, on the government payroll. (Toobin reports that Chesebro worked for Trump pro bono.) Nonetheless, he offered legal advice, behind closed doors, about steps Trump and his campaign should take regarding the conduct of government officials (like Vice President Pence) and persons who would purport to exercise government power (like the fake electors). In that sense, Chesebro's function was very much like that of a government lawyer whose arguments will not be opposed in court (at all or until it's too late to undo all the damage) and thus has a heightened responsibility to give even-handed analysis.
Accordingly, the best analogy for Chesebro (and his fellow co-conspirator lawyers Rudy Giuliani, John Eastman, Sidney Powell, and certainly Jeffrey Clark, who actually was in the Justice Department at the key time) is to the authors of the Torture Memos during the George W. Bush administration. Like the Torture Memos, Chesebro's and Eastman's memos offer extremely tendentious views of the law as though they were much more plausible than they are in the service of justifying a pre-determined course of conduct.
Indeed, in at least one respect the Chesebro and Eastman memos are worse than the Torture Memos. Without in any way excusing torture--which is illegal and immoral--I would acknowledge that the Bush administration lawyers who authored them were motivated by their perception of the national security interest. They were seeking to justify a policy, albeit one I and the law regard as repugnant. By contrast, the effort to overturn the result of a free and fair election served no policy interest; it aimed only to keep in office a malignant narcissist with no regard for the rule of law, democracy, or basic human decency.