Over the past two weeks, Jenna Ellis, Kenneth Chesebro and Sidney Powell, three lawyers who played a central role in Donald Trump’s attempt to overturn the 2020 election, have pleaded guilty in the Georgia racketeering case against the former president and 18 co-defendants . All admitted to significantly fewer crimes than they were charged with and escaped prison time.

Prosecutors may be more interested in Trump himself, but the lenient plea deals don’t match the culpability of these and other lawyers in Trump’s plot against the election. Eight attorneys were indicted in the Georgia case, and the federal indictment against Trump in the Jan. 6 plot includes five attorneys as unindicted co-conspirators, unnamed but identifiable as Powell, Chesebro, Rudolph W. Giuliani, John Eastman and Jeffrey Clark.

Lawyers were not alone

concerned

in Trump’s plot; they invented it and made it possible. Lawyers strategized, creating a false constitutional crisis and manipulating legal requirements in an effort to keep Trump in power and give his attempted coup the trappings of legality and legitimacy.

Only

lawyers could have provided these services.

It was clear that Trump had lost the 2020 election by early December of that year. But instead of accurately advising him that there were no further legal options, Chesebro distributed a memo outlining a plan that would sidestep court losses, undermine state-certified electors and allow Trump to win. What could turn a defeat into a victory? The lawyer’s craft: manipulation of law and fact.

Significantly, the attorneys’ co-conspirators have protested that they were merely providing legal advice. Before her tearful guilty plea on Tuesday, Ellis claimed the indictment against Georgia criminalizes the practice of law. Chesebro once claimed that their advice was simply the kind of war games that lawyers do.

Despite these lawyers’ willingness to help Trump overturn the election, the judiciary had proven relatively unresponsive to his onslaught of more than 60 post-election lawsuits. That didn’t happen. Lawyers are required by the rules of procedure and professional conduct to have a reasonable legal and factual basis for everything they submit to the court. They also have a duty of openness to the court, requiring them to recognize controlling counterarguments.

But lawyers’ advice to clients is treated differently. Lawyers violate the rules on advice only when they advise a client to engage in or assist conduct that the lawyer knows is criminal or fraudulent. This means that lawyers can even advise clients to engage in illegal behavior, as long as they do not do so

know

it is criminal or fraudulent. Besides, lawyers are

not

requires that they have a reasonable legal and factual basis for their advice or that they identify conflicting precedents.

This is especially problematic in the context of legal advice to government officials on the use of their power. Such advice shapes the use and abuse of government authority, which does not belong to office holders, but to the people.

With the exception of Clark, who worked for the Justice Department, the implied lawyers were private sector professionals who advised the president. Because they did not formally work for the government, they were not bound by federal regulations for government attorneys or the entity rule, under which a government attorney has duties to the government itself and not just a government official.

Even as he advises Trump on the use of government power, these

private

Lawyers had no duties to anyone other than Trump. Consequently, they acted entirely in Trump’s personal interests, bending the law and facts to suit his interests, even against the interests of the government and the people.

Take the false electoral plan that Chesebros outlined in December 2011. 6 memo. Eastman, Giuliani, and Ellis would all join Chesebro in advising or executing the plan, with Eastman drafting his own, now infamous, memos. The plan was to recruit fake voters in seven states and claim that Vice President Mike Pence had the power to refuse to count the supposedly disputed electoral rolls.

Chesebro emailed detailed instructions to the fake voters for each state to ensure they cast their ballots in the manner established by law, and provided fake voter certificates to print and sign. The idea that this technical compliance with the law would somehow make these slates legal would be laughable if it weren’t so dangerous. Chesebro had the false voter sign signed

certifications

that they were the duly chosen and qualified electors of those states, which they

they were emphatically not.

These election plans were a machination that the lawyers treated as fact and the basis for their opinion that seven states had submitted duplicate lists of electors. In fact, no state or authorized representative has created or certified these slates. Eastman nevertheless advised

,

“The fact that we have multiple voter lists shows the uncertainty of both,” giving the fake lists the same effectiveness as those certified by the states. This opinion would have usurped the states’ constitutional power to elect the president and given it to the federal executive branch.

The attorney’s opinion also included false claims that the election was stolen or fraudulent.

Promote lawyers

a radical plan to disenfranchise more than 26 million voters had the duty to guarantee

that’s their advice

What

grounded

in fact.

Most government officials have at least qualified immunity for actions they take in the performance of their duties. Knowing that public officials may not be held accountable for their actions should compel advocates to take action

even

greater fidelity to both facts and law when advising government clients. Ridiculously, Trump is now claiming immunity for “organizing” the fake voters.

If lawyers can manipulate the law and the facts to justify what a government official wants, then there are official immunities

can

become a license for oppression, abuse and lawlessness, backed by the full weight of government power.

Trump certainly wanted to stay in power at all costs and refused the advice of many good lawyers and advisors who told him he had lost. But what if Chesebro, Eastman, Ellis and Giuliani had told him?

the same?

Trump would have nowhere to go. He could not have come up with the wrong election manifesto on his own. He could have fired off angry tweets, railed at rallies, and thrown signs and ketchup, but he couldn’t have undermined the election process without the lawyers who drafted the plan.

And without the fake voters, none of the efforts to use them to overturn Joe Biden’s victory would have happened: no pressure on Pence to

reject

the votes, no rally in Washington to encourage him in that direction and no storming of the Capitol.

State bars may respond to this

notable shortcomings

by establishing rules of professional conduct for lawyers advising government officials, including private lawyers. These rules should specify that

lawyers

We owe a duty to the public to maintain the integrity of our constitutional system and the office it advises. The rules should require lawyers to exercise good faith in their advice based on both the law and the facts. And state bars should punish attorneys who don’t.

Lawyers swear an oath to uphold the Constitution. That oath is meaningless if they fail to protect our system of government from those most likely to undermine it:

lawyers

himself.

Margaret Tarkington is a professor of law at Indiana University’s Robert H. McKinney School of Law.