Too-Clever Lawyering Is Toxic, But Hawley's Arguments are Not Even Mildly Clever
by Neil H. Buchanan
As a law professor and a devout believer in the peacekeeping role that a well functioning legal system can guarantee, I am especially worried when the rule of law is undermined from within. The most common versions of this problem include lawyers abusing the legal process in nakedly cynical ways, strategies that cause people to exclaim: "That's why people hate lawyers!"
Dramatic depictions of lawyers in film and on television feed on and reinforce that kind of system-threatening erosion of confidence in the rule of law. I recently caught up with two of the best shows on television that I had inexcusably ignored until now, "Breaking Bad" and its subsequently produced prequel, "Better Call Saul." The latter show is built around a relatively minor character from the former show, Jimmy McGill, who changes his name to Saul Goodman (as in " 's all good, man!"), also known as "Slippin' Jimmy." Lawyers do have many positive moments on those shows, but even more bad ones.
But those are merely two of the countless shows and movies, covering the full range of quality, that give people reason to suspect that the law is a big con. And not without good reasons. Law is too often a commodity that goes to the highest bidder. Too many prosecutors suborn perjury, abuse the plea process, and refuse to drop cases even after exculpatory evidence has been produced and verified. Too many divorce lawyers make matters worse for all involved. (Another dramatic marvel: "Marriage Story.")
And by "too many" in the paragraph above, we ought to mean "any." What happens when the system breaks?
We know that the legal system, being run by humans, will be imperfect. We know that the vast majority of people in the legal system do their jobs with competence while adhering to the law and professional ethics. We also know that public confidence is a precious commodity that seems always to be threatened. And if people no longer trust that the law is at most tolerably corrupt, they will no longer tolerate seeing other people gain while law-abiding citizens restrain themselves from taking the law into their own hands.
The problem is bad enough when we learn about, say, a Jeffrey Epstein, who used power and influence to escape punishment for physically and mentally abusing children for decades. What could be worse than a system in which the rich and powerful conspire with bought-and-paid-for politicians in corrupting the legal system to enable the serial sexual abuse of children? Maybe it is learning that the rich and powerful are trying to corrupt the legal system to keep their wealth and power, allowing their abuses of the innocent to continue.
And that is where we are today, with our constitution-based legal system having been distorted again and again in an effort to keep Donald Trump in the White House. Forget, if you can, about the old news of the hollowing out of the Department of Justice by repeated assaults on the independence of that essential agency of government. Bill Barr's dishonesty regarding the Mueller Report is only the beginning of a long list of abuses of the legal system in the past four years.
Even so, we need only look at the past few months to see what happens when the legal system is truly under assault. That the system has thus far held up is amazing, and Trump-led efforts simply to throw off any pretense of obeying the law and to seize power by force are the best indication yet that the system was not completely corrupted. But that does not mean that it can last forever. .
But what we have witnessed since Election Day has been a sight to behold. When Trump unleashed his team of inept -- but relentless -- lawyers to overturn the election, Republicans from Mitch McConnell on down defended his actions by saying that a president has "every right" to pursue all of his legal options. The good news is that all of those options came up empty for Team Trump. The bad news is that we have been reduced to saying, "See, he lost sixty-plus times in court, and that's how we know that the election wasn't stolen."
We did not need those sixty cases. The cases continued to lose, to be thrown out, or to be withdrawn because they were not actual legal cases at all. The legal system requires lawyers to have non-frivolous bases for action, and there were none in the Trump cases. The election law system cannot become a matter of simply throwing everything possible against the wall and hoping that something sticks, all the while claiming that those losses in court are proof that the courts are corrupt.
Again, Trump and his co-seditionists have revealed their willingness to foment and attempt to benefit from violence, removing any claim that they were merely trying to test the outer limits of the legal system. That should not cause us to forget just how much damage their "unleashing the Kraken" strategy has wrought on the legal system itself -- and thus on our society.
Having said all of that, I want to heap an extra helping of contempt on Senator Josh Hawley, who set the stage for last week's treasonous sacking of the Capitol by claiming falsely that the counting of the electoral votes was an occasion for additional legal arguments that could somehow change the results of the election.
In a new Verdict column today, I describe the difference between clever lawyering and what Hawley did. Referencing a comment by one of Hawley's Senate colleagues, Pat Toomey of Pennsylvania, I call out the attempt to justify Hawley's actions because they were supposedly "technically" not illegal. This draws from the deep well of public cynicism that feeds narratives like Slippin' Jimmy's depredations in "Better Call Saul" -- a lawyer finds a loophole and exploits the hell out of it. Is it his fault that the loophole exists? No? Well then, he did not technically do anything wrong. (Note to fans of those shows: Obviously, McGill/Goodman also committed plenty of unambiguous crimes.)
But as I describe in my column, Hawley cannot even hide behind the notion of having found a clever loophole. He is not only wrong in the broader sense of trying to overturn the results of a free and fair election through parliamentary maneuvering. His maneuvers themselves simply have no basis in the law.
By analogy, let me offer here a quick digression into my primary area of teaching: tax law. There, millions of person-hours of legal talent are expended on finding genuine loopholes. The courts and Congress have responded over the decades by acknowledging that there is no such thing as an airtight tax code (or any other legal code, or for that matter even an airtight private legal contract). In class, I quote Senator Charles Grassley precisely to that effect, when he admitted that there is no way to write a "complete" tax code that covers every possible argument.
We thus see in our tax system an array of anti-abuse doctrines, most importantly the "economic substance doctrine," which was created by courts and later codified by Congress. Related rules like the "sham transaction" and "step transaction" doctrines or the simple admonition that "substances dominates form" all try to achieve the same result, which is to prevent clever lawyering from exploiting a technical gap in the law.
All of that, however, does not mean that the Internal Revenue Code is nothing but a sieve. Plenty of abuses are clearly and obviously illegal. To take perhaps the simplest example, Section 61(a) defines "gross income" first in general: "Except as otherwise provided in this subtitle, gross income means all income from whatever source derived ... ." That, of course, is a circular definition. Aware of that problem, Congress continued that sentence with this: "... including (but not limited to) the following items," offering fourteen paragraphs of examples of income, some of which include more than one example.
The first such paragraph reads: "Compensation for services, including fees, commissions, fringe benefits, and similar items." Nowhere does Section 61 use the words "salary" or "wage," but of course those are both covered by the term "compensation for services." A person who says that his salary is not taxable because it is not mentioned in the definition of gross income, then, has not found a clever loophole. Even more egregiously, someone who stops reading after Paragraph 1 and says, "but I earned royalties, not compensation for services," is getting nowhere because Congress -- which did not even have to provide these (or any) examples -- specifically added Paragraph 6, which contains a single word: "Royalties."
Slightly more advanced are the rules that determine how one computes gain on the sale of an asset. Inflating the initial purchase price (basis) is expressly illegal, as is understating the sale price, as is computing the difference using nonstandard arithmetic.
My point, perhaps a bit belabored, is that a person cannot simply say, "Hey, I found something that seems to allow me to do what I want to do, so I'll do it." This is, or certainly ought to be, obvious to a United States Senator with a law degree. Indeed, even a mediocre 1L knows better.
My Verdict column, then, constitutes a lesson in the art of the non-loophole. Hawley piously claimed that the Senate had a legal responsibility to resolve questions about the election peacefully, but he had no legal basis on which to do so. As I explain in the column, his claim that Pennsylvania's mail-in voting law has was never actually ruled constitutional by that state's Supreme Court -- the claim that Hawley made in his speech after the Capital had been sacked -- is simply untrue.
Even more egregiously, Hawley's use of the Electoral Count Act as a vehicle to justify his attempt to hijack the January 6 ritual fails completely. Either the Act itself prohibits what Hawley was doing, or if Hawley wants to claim that he has found a loophole in that Act that allows his gambit to work, his reading of the Act turns it into a clearly unconstitutional law.
He is thus arguably closer to saying the equivalent of "I have royalties, not income" than to saying, "I earn a salary, which is not mentioned in the statute," much less to "my asset did not appreciate by as much as it appreciated" -- all of which are wrong, of course, but the point is that he is not even close to having found a genuine gap in the law that technically means he did nothing wrong.
Having been told for years that sharp lawyers can always find an angle to exploit, I suspect that many people would be inclined to believe that a guy with degrees from elite educational institutions must certainly have found something at least arguably vague on which to make his case. Hawley did no such thing. And that makes him even more cynical than Slippin' Jimmy and everyone else who at least goes to the effort to find something that is not clearly illegal before subverting justice.
Hawley will soon be making appearances in Iowa and New Hampshire, positioning himself to be the president of the country whose legal system he has sullied and nearly destroyed. Trump proved that one can be a complete ignoramus about the law and still succeed in Republican politics. We should be clear that Hawley, for all of his pretensions to legal cleverness, was as wrong here as Trump was when he said that Article II gives him absolute power.
This was an abuse of the Constitution of the United States, based not on any defensible reading of the law. It was an attempted power grab, dressed up in smarmy rhetoric. No wonder Hawley and Ted Cruz have found common cause.