Georgia defendants say Trump indictment criminalizes aggressive lawyering

Rudy Giuliani on his way to appear before a grand jury at the Fulton County Courthouse last August. He is one of 19 defendants in a criminal case involving former President Donald Trump's campaign to overturn the 2020 election in Georgia. (Nicole Craine/The New York Times)

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Rudy Giuliani on his way to appear before a grand jury at the Fulton County Courthouse last August. He is one of 19 defendants in a criminal case involving former President Donald Trump's campaign to overturn the 2020 election in Georgia. (Nicole Craine/The New York Times)

Some attorneys charged with aiding Donald Trump’s effort to overturn the 2020 presidential election say this week’s indictment in Georgia seeks to punish them for aggressively representing their clients.

Eight of the 19 people charged in the Fulton County criminal case are lawyers who filed lawsuits or advised Trump as he sought to invalidate Democrat Joe Biden’s victory in Georgia. Some of the defendants and other critics of the indictment said it could discourage attorneys from watching out for their clients’ interests.

“Lawyers everywhere should be sleepless over this latest stunt to criminalize their advocacy,” attorney John Eastman, one of the defendants, said in a statement released this week. “This is a legal cluster-bomb that leaves unexploded ordinances for lawyers to navigate in perpetuity.”

Some legal experts disputed the contention that the lawyers’ behavior was normal. They say the evidence suggests some of them knew that voting fraud claims they were making were false. And one lawyer has been charged with perjury for allegedly making false statements to the Fulton County special purpose grand jury that sat for almost eight months and heard from almost 75 witnesses.

“These arguments are well beyond the bounds of aggressive lawyering,” said Norm Eisen, co-author of a Brookings Institution report that found Trump may have broken numerous laws in Georgia. “They cross the line into out-and-out criminality.”

This week’s indictment includes 41 counts of racketeering, making false statements, conspiracy to commit election fraud and other crimes. It stems from Trump’s attempts to stay in power despite the failure of dozens of lawsuits that sought to invalidate Biden’s victory.

Many of those who aided Trump were attorneys. They filed unsuccessful suits seeking to overturn the election, concocted novel legal theories that state legislators or Vice President Mike Pence could declare Trump the winner or lobbied public officials to act on those theories.

Some of the 19 defendants in the criminal case unveiled this week have declined to comment. But a few have issued statements condemning the indictment.

Eastman was an architect of the scheme to convince state legislators and Pence to reject the Biden presidential electors and name Trump the winner. He denounced the indictment as an attack on lawyers doing their jobs.

Attorney Kenneth Chesebro, another architect of that plan, also condemned the charges.

“Each of the alleged ‘overt acts’ that are attributed to Mr. Chesebro relate to his work as an attorney,” said his lawyer, Scott R. Grubman. He said Chesebro never set foot in Georgia and “stands ready to defend himself against these unfounded charges.”

Rudy Giuliani, acting then as Trump’s personal lawyer, lobbied Georgia lawmakers to overturn the election and spread false voting fraud allegations. He called the indictment “an affront to American democracy” that “does permanent, irrevocable harm to our justice system.”

And former Trump attorney Jenna Ellis also accused Fulton County District Attorney Fani Willis of “criminalizing the practice of law.”

Attorney Jenna Ellis speaking during a press conference at the Republican National Committee headquarters in Washington, D.C., on Nov. 19, 2020. Ellis, a former member of former President Donald Trump's legal team, was one of 19 people charged in a Georgia racketeering indictment. (Mandel Ngan/AFP/Getty Images/TNS)

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The defendants aren’t the only ones expressing concern. John Malcolm, a former federal prosecutor now at the conservative Heritage Foundation, called the indictment “a terrible thing for the legal profession.”

“These lawyers were gathering evidence. They were following up leads,” he said. “They were making representations that they had a good faith belief in what they were saying, based on the information they had at the time.”

Others say the defendants’ alleged behavior clearly crossed a line into criminality. They cited evidence that Trump and his lawyers knew their voting fraud allegations were false. But they filed lawsuits and lobbied public officials to overturn the election anyway.

Prosecutors this week charged one Georgia attorney, Bob Cheeley, with perjury for allegedly making false statements to the special grand jury that investigated Trump’s actions. Cheeley did not respond to a request for comment.

“As an attorney, it breaks my heart that eight of these 19 defendants are lawyers,” Amy Lee Copeland, a former Georgia federal prosecutor and criminal defense attorney, said Wednesday during a press briefing hosted by States United Democracy Center. “Whatever you think about their legal advice, there’s a very clear line. You can’t lie when you’re under oath.”

Defendants in the case are expected to be booked at the Fulton County jail in coming days.

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