Judicial Notice (08.05.23): Mr. Smith Goes To Washington

The latest Trump prosecution, a legendary law professor's passing, a 90-year-old firm's dissolution, and other legal news from the week that was.

Special Counsel Jack Smith, who should be played by Nicolas Cage in the movie (photo by Saul Loeb/AFP via Getty Images).

Being the parent of two kids is more than twice as hard as being the parent of one. The past three weeks have been challenging—but also rewarding. I agree with big brother Harlan’s comment from the other night, as he gazed sweetly at Chase: “Having a baby is fun and not fun.” The “not fun” part includes sleep deprivation, which throws me for a loop; I believe sleep matters, as reflected in one of the standard questions I ask my podcast guests.

Speaking of podcasts, I recorded a new episode of Movers, Shakers & Rainmakers. My co-host Zach Sandberg and I interviewed Mattathias Schwartz of Insider, who has covered a number of noteworthy legal stories. We discussed, among other topics, the legal-recruiting career of Jane Roberts, wife of Chief Justice John Roberts, and the prosecution of Donald Trump on charges of mishandling national-security documents. But that’s not the Trump story that dominated this week’s headlines….

Lawyers of the Week: Donald Trump’s unindicted co-conspirators.

The biggest legal news of the week—or the month, or perhaps the year—was the indictment (again) of former president Donald Trump. This time, special counsel Jack Smith accuses the forty-fifth president of four criminal charges, all related to Trump’s effort to overturn the 2020 presidential election: conspiracy to defraud the United States (18 U.S.C. § 371); conspiracy to obstruct an official proceeding (18 U.S.C. § 1512(k)); obstruction of, and attempt to obstruct, an official proceeding (18 U.S.C. § 1512(c)(2)); and conspiracy against rights (18 U.S.C. § 241).

Reading the 45-page indictment, I couldn’t help noticing that when you get to paragraph eight, describing Trump’s six alleged co-conspirators, four out of the five descriptions begin with “Co-Conspirator X, an attorney,” and a fifth refers to “a Justice Department official.” I suspect that Smith would argue the proliferation of lawyers is no coincidence: as Judge David O. Carter (C.D. Cal.) quipped, Trump’s attempt to flip the election was “a coup in search of a legal theory.”

Lawyers were integral to Trump’s effort—and lawyers could be integral to Trump’s defense. Based on interviews given by Trump defense lawyer John Lauro, it seems the former POTUS will rely at least in part on an advice-of-counsel defense. As Lauro told NPR, his client received “advice from counsel—very, very wise and learned counsel—on a variety of constitutional and legal issues. So it’s a very straightforward defense that he had every right to advocate for a position that he believed in and his supporters believed in.” (If the name of John “Attorney for the Damned” Lauro rings a bell for some of my readers, it might be because Trump is his second most-hated client—after murdered law professor Dan Markel’s ex-wife, Wendi Adelson.)

From the contents of the indictment, there’s general agreement on the identities of the first five co-conspirators, whom news reports identify as follows (in ascending order from #1 to #5): former U.S. attorney and New York City mayor Rudy Giuliani, former Chapman Law professor and dean John Eastman, former assistant U.S. attorney Sidney Powell, former assistant attorney general Jeff Clark, and appellate attorney Kenneth Chesebro. For in-depth reflections on the roles these lawyers played, including my theory on why once-respected attorneys now find themselves on the verge of possible indictment, see my prior post, Trump Derangement Syndrome? 4 Leading Lawyers Who Lost It Defending The Donald.

This leaves mysterious “Co-Conspirator 6,” described as “a political consultant who helped implement a plan to submit fraudulent slates of presidential electors to obstruct the certification proceeding.” There has been tons of fevered speculation about this individual’s identity—and two possibilities are lawyers.