US Lawyers Use Litigation Against Assaults on Democracy 

*By Lucianne Nelson
Time Period: 2016-present
Location: United States
Main Actors: Lawyers
– Civic Engagement
– Media Outreach
– Legal Aid
Signed Letters of Support

In the aftermath of the 2020 election, attorneys threatened American democracy by weaponizing the American legal system to advance conspiracies and fringe legal arguments through litigation. Dozens of lawsuits were filed across the United States to challenge the election results and the “Big Lie” lawyers also amplified false claims about election fraud outside of the courtroom through public statements in the media, tweets, and elsewhere. Several members of Congress—who are also attorneys—complicitly supported or participated in efforts to undermine and overturn the election. Following the January 6th insurrection, 138 members of the US House of Representatives and twelve Senators voted to overturn the election; twenty-eight of those Congresspeople were attorneys. But even as some lawyers used their legal expertise to destabilize and undermine elections, others within the legal profession have stood up against election denialism and fought to strengthen American democracy. 

Individual lawyers, law firms, professional associations (including the American Bar Association), ethics committees, state judiciaries, and other institutions have adopted a special role in advancing democratic values by making it tougher for lawyers to use the legal system to overturn elections. Some have formed coalitions to combat “fraudulent and malicious lawsuits” against fair election results. Launched in March 2022, the 65 Project initially focused its sights on 111 lawyers who engaged in efforts to challenge or reverse the 2020 election results across 26 different states. The group filed ethics complaints to expose and disbar attorneys who used the legal system to undermine American democracy. Some of the targeted lawyers included President Trump’s legal advisors (like Sidney Powell and Jenna Ellis), lawyers who served as “alternate electors,” and attorneys who were present or otherwise supported the January 6 attack on the US Capitol.

The 65 Project has expanded its scope of work and is now campaigning to change the Bar rules of professional conduct across all 50 states and Washington, D.C. Other groups like States United Democracy Center and Lawyers Defending American Democracy (LDAD) to “connect state and local officials, law enforcement leaders, and pro-democracy partners… with the [legal] tools and expertise they need to safeguard democracy.” In addition to filing ethics complaints, these organizations rally individual lawyers at the state level to exert disciplinary action. LDAD has also authored open letters and issued statements calling for lawyers, leaders of bar associations, and the legal academy to join in speaking out against threats to democracy.

Others in the legal community have taken on pro bono work to combat anti-democratic policies. The Free and Fair Litigation Group was started in 2023 to “bring carefully selected, high-impact cases that protect democracy and individual rights.” This firm focuses on ten cases at a time, taking a more bespoke approach. While Free and Fair is not currently tackling cases directly related to the 2020 election or the Big Lie, their mission is to challenge authoritarianism by taking on issues like gun control and school censorship. Free and Fair believes that—by engaging these policy areas—this fight to restore long-held, constitutional freedoms ultimately combats other, more direct assaults against fair elections and strengthens democratic values. 

The 2020 election and the months that followed posed an existential threat to American democracy. As the January 6th Commission hearings confirmed, a team of “Big Lie” lawyers committed brazen violations of their oaths of office and the Constitution in their attempts to overturn the election. Their anti-democratic conduct motivated others in the legal profession to reimagine their responsibility to American democracy. Groups like the 65 Project, States United Democracy Center, and LDAD are protecting American democracy by revitalizing accountability processes that discourage lawyers (and public officials) from using, misusing, and abusing the legal system to overthrow free, fair, and legitimate election results. 

These cases show the power of working through and protecting existing institutional channels in order to uphold democracy. A vibrant pro-democracy movement can employ protests and other tactics outside of institutions, but such public actions will be more powerful if there is systematic, organized work to ensure that the institutions that constitute and maintain democracy continue to fulfill their crucial functions. Professional groups like lawyers who make up these institutions can be a critical organizer for this work inside existing channels.

Where to Learn More
Trump Lawyer Targeting Push Opens New Front With Bar Rules 
The Attorney’s Duty to Democracy: Legal Ethics, Attorney Discipline, and the 2020 Election
Scoop: High-powered group targets Trump lawyers’ livelihoods
Free + Fair Litigation Group
Our Work – Lawyers Defending American Democracy
Surveying Americans on Accountability, Election Denial, and Democracy

You can access all the caselets from the Pillars of Support Project here.