The ‘Big Lie’s’ Autocratic Assault on the Rule of Law: Attorneys Can Stop It

It is no secret that attorneys have been behind the greatest take-overs of democratic governments in modern times using their legal skills to put autocratic regimes into power. One of the more recent democratic government take-overs was Hungary by Viktor Orban, assisted by attorneys, as chronicled by Professor Kim Lane Scheppele in "Autocratic Legalism." Attorneys rewrote the country's constitution and election laws to guarantee power to Orban's political party. As to the latter, we are already seeing this in the United States through extreme state partisan gerrymandering, with blessings from the U.S. Supreme Court. As to the former, implementation of Project 2025 would transform the executive branch of our federal government and presumably come with legislation to make its agenda law of the land.

Hungarian attorneys also made successful legal arguments in support of authoritarian policies. Hungarian attorneys loyal to Viktor Orban were appointed judges. All these attorneys helped dismantle the rule of law and weakened their government's checks and balances.

The same thing is happening here in the United States. Civil rights like voting rights and reproductive rights have been set back fifty to seventy years. Judges now interfere in policy decisions better suited, and constitutionally delegated, to the executive branch. Bribery is legal if it is done after-the-fact. And a President's criminal conduct can be immunized if it is loosely within the purview of his Presidential powers. The actions of the lawyers and judges who argued and ruled for these changes will have far-reaching consequences beyond some minimal change to social order.

'Big Lie' Emboldens Attack on Rule of Law

The most significant attack on our constitutional government occurred on January 6, 2021, when former President Donald Trump convinced many Americans that he, and not Joe Biden, won the 2020 election. Trump manipulated these Americans into believing their votes were not counted or completely discarded, and for believing him, many were indicted, arrested, convicted by a jury of their peers, and sentenced to jail time. Trump was assisted by many Congressmen and Senators, many of whom are attorneys, in his effort. And for the insurrectionists' part, it is expected they will be freed now that Trump is President once again.

A democracy is not a democracy if the populace cannot choose (or believes it cannot choose) its elected officials in a representative government. A democracy is not a democracy if the populace cannot also rely on the rule of law. Otherwise, it becomes an autocracy much like Orban's Hungary or Vladmir Putin's Russia. Now that Donald Trump has won re-election, part of our country may now think concerns over autocracy have been allayed. Nothing could be further from truth.

Since the attack on our Capitol, political leaders, many of whom are lawyers, spread and amplified the 'Big Lie.' They did not engage in free speech because it was not valid political dissent against some government policy. Rather, they outright attacked the foundation of our constitutional government without bases.

Attorney Politicians Aid & Abet

Attorney politicians like Ted Cruz and Matt Gaetz, with no evidence and contrary to Republicans who spoke against the 'Big Lie,' continued to insist the 2020 election was "stolen" and Joe Biden was not a legitimate President. If this argument could not be made in court, it should not have been made in public. It should not have been normalized.

Then, we have attorney celebrities like former Judge Jeanine Pirro who, it has been discovered, aired "news" related to and promoting the 'Big Lie' that was false. Despite a staggering $1.6 billion settlement between Fox News and Dominion Voting Systems, measuring the gravity of the lie, the lie persisted and led to further attacks on our constitutional government by the people sworn to protect it - attorneys. The lack of a centralized, unified condemnation of the 'Big Lie' emboldened people who fed these lies to the American public. These bad faith actors continue to do the country further harm including through attacks on the rule of law.

Attacks on Legal Process

Recently, in the shadow of former President Trump's state court criminal conviction for fraud, Senator Tom Cotton, also an attorney, attacked the jury verdict with unfounded statements like "it was rigged from the very beginning." "[The judge] at every turn ruled in favor of the prosecution," and "the reason why you have this weaponization of the legal system is because Joe Biden can't defend his weak, failed record." Tom Cotton did not go to the preliminary motion hearings, the trial, or posttrial hearings. Cotton did not review and analyze the many state law legal issues or factual questions raised, like the judge or jury did. Tom Cotton did not listen to the evidence or evaluate the credibility of the witnesses. A jury did, and that jury unanimously found the former President guilty on thirty-four criminal felony counts. While Cotton may not agree with the law, attacking the process is devastating to democracy, putting into question the fairness of trials for all Americans.

Besides providing cover for a convicted felon, attacks like these are additionally harmful in other ways. They degrade the rule of law much like the 'Big Lie' does by implying to the world, although unfounded, that one "can't get a fair trial" in the United States, especially if a former President with unpopular political views can't. Notably, the New York trial and conviction was focused on violations of state criminal law. It was devoid of discussion about political views, ideas, and dissent. It was all about banking fraud. Cotton's comments, by comparison, are chock full of politically charged mischaracterizations going beyond normal political dissent. His words breed distrust in a judiciary for no good reason, a judiciary that Americans - individuals and businesses - turn to every day for justice.

Attorneys take an oath when they are admitted to the bar, with some variation, to "support [protect, uphold, or defend] the law, the Constitution of the United States and the constitution" of their state in which they are being admitted. And yet, too many attorneys, concerned with gaining or holding onto status politically or socially, have defied the oath. They baselessly claim an election was stolen. They attack as biased the justice system charged with bringing criminals to justice with no basis or evidence. These attorneys stand on the verge of allowing the pardoning of many individuals found guilty of attacking our nation's capital, not because they were fed the 'Big Lie,' but because it was somehow true and justifies their release. These individuals (the ones that believe the lie as opposed to the criminals who all along tried to do our country harm) will continue to believe the 'Big Lie' as will other Americans who support them.

Bar associations, especially state bar associations and their attorneys, should take heed and uniformly speak out against what is occurring and discipline attorneys where necessary who have or continue to promote the 'Big Lie' and other anti-democratic falsehoods that are putting us on the path to authoritarianism. Frankly, just because an attorney politician claims to engage in speech related to their job as a politician does not mean they have the character and fitness to be an attorney when that speech attacks the rule of law.

ABA Finally Speaks Up

This past August/September, American Bar Association (ABA) President Mary Smith spoke out that "Lawyers Must Protect Democracy Now," citing a "disappearing trust" in our democratic institutions. Properly, President Smith noted, "it is our oath to [actively] uphold justice and the Constitution," but "many lawyers are not fully engaging with their ethical obligations . . . diminishing the profession's role as keepers of democracy and the rule of law." The ABA formed a task force to help people understand the electoral process. While sorely needed, it does not do enough to combat the avalanche of lies propagated by licensed attorneys, lies buoyed by their social status as both attorneys and elected officials. The national bar of attorneys needs to do more.

Sadly, our democracy would be in peril no matter who had won the election, because of the persistence, unethical misconduct of attorneys promoting the 'Big Lie' and denying the legitimacy of state and federal criminal prosecutions without evidence. Without attorneys as a profession speaking out in a unified, herculean voice against these baseless attacks on the rule of law, the pernicious decay of democracy will speed up until its sudden collapse. Perfectly reasonable laws will be ignored or misapplied and new unreasonable ones put in their place much like we see in autocracies.

State bar associations and other respected legal associations and institutions need to act right now. Well-known and respected attorneys, jurists, and leaders must speak out in a unified public way in the media. Indeed, this is needed now more than ever because the person who has pushed this agenda, Donald Trump, has regained the seat of power and there may be little to no guardrails to stop him from devouring what is left of our rule of law and democratic institutions. The foundation of our constitutional government needs protecting. We attorneys owe it to the American people to, "support [protect, uphold, or defend] the Constitution of the United States," as we promised.

Jim Saranteas is a practicing attorney of 25 years with experience at the trial and appellate levels in civil litigation. In 2012, the Loyola University Chicago School of Law's Board of Governors chose him for its prestigious St. Bellarmine Award in recognition for his distinguished contributions to the legal community. He was both an adjunct professor and moot court coach in appellate advocacy for Loyola Law. Saranteas assists Duke Law's Moot Court Board as a volunteer appellate advocacy coach. Saranteas received his J.D. from the Loyola University Chicago School of Law, and his B.A. in Economics & Business Administration from Knox College.

Executive Power, January 6th, Rule of Law

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