2023 Ron Rotunda Memorial Webinar: The State of the Legal Profession

[Music]

 

Jack Capizzi:  Hello and welcome to today’s Federalist Society virtual event this afternoon, Tuesday, October 3^rd. The Professional Responsibility & Legal Education Practice Group is proud to present the 2023 Ron Rotunda annual Webinar, featuring a discussion on the state of legal culture and the legal profession. My name is Jack Capizzi, and I’m an Assistant Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today’s call.

 

Today, we are delighted to be joined by Greg Jacob, partner at O’Melveny & Myers and former Counsel to the Vice President and Josh Blackman, who is a professor at South Texas College of Law Houston. After our speakers have given their remarks, we’ll turn to you, the audience, for any questions you might have. If you have a question at any point, please type it into the Q&A function at the bottom of your screen, and we will get to those as we can towards the end of today’s program. With that, thank you all for being with us. Josh, I’ll hand it over to you.

 

Prof. Josh Blackman:  Thank you so much. It’s my honor to be here. It’s not much of an overstatement to say that but for Ron Rotunda, I probably would not be a con law professor. He was my professor at George Mason as a first-year law student, and he had such an impact on me and what I believe and what I approach and what I teach on a daily basis.

 

Let me just give a joke that Ron would always say in class, and for you federal courts nerds, it’s about the Mann Act, which is a statute which makes it a crime to transport minors across state lines for immoral purposes. Okay. I’m sorry. Transfer girls across state lines for immoral purposes. So here’s the joke. A zookeeper fed his long-lived dolphins seagulls, which was a secret to their longevity. One night, he was carrying the gulls, but he had to jump over a sleeping lion. So he was arrested for transporting gulls across state lions for immortal porpoises.

 

That was Ron, in a nutshell. He would just have this wit to him, and he would make the most complex, arcane topics of constitutional law accessible. He cared deeply about his students. I remember one time; I’d ask him a question. He said, “Oh, no. I’ll cover this in a later class.” And I was absent for that class. He would be ripping me for months, saying, “I covered the question you asked, and you weren’t there.” He’d be mad at me. He cared that much about his students to always think about us.

 

And towards the later years of his life, I was happy to be on a symposium with him. We emailed all the time. We wrote all the time. And I just miss Ron very dearly. And for these reasons, I’m grateful that The Federalist Society’s created this memorial call for Ron’s memory.

 

And the focus is on the state of the legal profession, and we are joined today by someone who lived the legal profession in a way few of us ever will. His name is Greg Jacob. He’s a partner at O’Melveny, but for our purposes, he was the Counsel to Vice President Pence towards the end of 2020 and through a day we all know about, January 6^th of 2021. And Greg will talk a little bit of profession, and I’ll ask him some questions later on his experiences on January 6^th, and then, we’ll open up for questions later. So Greg, over to you, please.

 

Gregory Frederick Jacob:  Well, thank you so much, Josh, and I just can’t say what an honor it is to be invited to speak in a memorial webinar for Ron Rotunda and, particularly, to address the subject of the state of the legal profession. As I considered that topic, the first thought that came to mind is, gosh. The state of the legal profession, not good. And then, I thought about it a little bit more, and I fell back to really bad, and then, I started to think about, well, about the future of the legal profession? Where’s the direction we’re going?

 

Surely, the place to look for that is to take – reflect upon where our elite law schools are, the people who are going to be the next generation of lawyers. And I thought about Judge Duncan’s reception at Stanford Law School. I thought about Kristen Waggoner and her reception at Yale Law School with Alliance Defending Freedom. I thought about Ilya Shapiro and his experience being canceled at Georgetown. And then, I thought, well, maybe the right word to use is atrocious is the current state of the legal profession. But I studied history before I went to law school, and I’m a great lover of history.

 

And actually as a student of history, as I reflected on it more, I think that there’s reason for hope for the legal profession. I was born in 1974, and I -- when I reflect back to the time of my birth, the 1970s, the progressives were just running rampant through the legal profession. Roe v. Wade was a gift of an ultra-progressive Supreme Court that rendered decisions completely untethered to text, principle, history. They barely even felt compelled to try to do so. Other decisions from the ‘70s, the wonderful Lemon test, Lemon v. Kurtzman, restricting religious liberty in our country, and Bakke, Regents -- University of California v. Bakke, another gift of the ‘70s Supreme Court. And that’s not actually where we were -- that is where we were then. But that actually is not where we are today.

 

It may be because my oldest two kids and I have been working our way through the Star Wars movies, but I thought a Star Wars analogy might be appropriate here. In the ‘70s, the Empire was ascendant, but in 1982, the rebellion began. The Federalist Society was born, and there was a call of our profession, through The Federalist Society, to principle. And of course, The Federalist Society does not take positions on particular issues, but it was dedicated to the principle that through reasoned debate, truth and principle would ultimately prevail. And the seeds that started with that rebellion in 1982 now can see throughout our federal judiciary in 2023, where, particularly after the four years of judicial appointments of the Trump administration, which -- where I served in 2020. I think, unquestionably, that administration provided us the best judicial appointments of any administration of all time.

 

And the balance that we see in our courts today — although balance ultimately is not the goal but rather principled approaches to the law throughout — but it’s no coincidence that, I think, that the left is now working overtime to delegitimize our courts, where there actually is that balance shown, because the courts are actually the most respected branch of our government today. And so, there’s been a bit of a restoration of balance to the force there in the courts. And then, of course, over these last three years, we’ve blown up the Death Star. Roe v. Wade, which had opened what I would describe as a great, gaping wound in the law — in part because I disagree with the outcome but mostly because it was just utterly devoid of principled legal reasoning — has been overturned. [Inaudible 00:07:51] Lemon, Bakke, and Grutter are gone.

 

And we have justices on the other side of the Court; Justice Kagan declared [inaudible 00:08:01] all textualists now. Justice Jackson said during her confirmation hearing, “I am focusing on original public meaning because I’m constrained to interpret the text.” Now, I have read their judicial decisions. There’s a great heaping grain of salt to be taken with those statements, but I think that there actually is now meaningful constraint in the courts and a notion that text, originalism, original public meaning actually are ways and approaches that constrain the way that we approach the law. And it’s notable that when Roe was overturned, in Dobbs, there was no defense on the merits of either Roe or Casey. All the argument was how stare decisis should apply, but there was no real attempt to argue that either of those early decisions had actually been the result of principled reasoning.

 

So as we look at the state of play in the field today, I think we’re in a lot better shape than we were in the 1970s, but nonetheless, let’s go back to those law schools where the next generation of lawyers is coming up because if we really want to consider what the state of the legal profession is, I think that we need to think about the environment in which that next generation of lawyers is being raised. And for them, truly, it is a time for choosing. And that time for choosing comes as the left dominates the media, dominates the bar associations, effectively controls academia, particularly controls the elite law schools, and simultaneously, our culture preaches entitlement, will to power, the death of moral truth, and that the very highest calling of every individual comes not from their Creator or even from any moral truth external to themselves but rather from Shakespeare’s Polonius in Hamlet, “To thine own self be true,” whatever you conceive yourself to be.

 

So this, to my mind, is our challenge. As we consider the state of the legal profession today, how do we win the hearts and minds of fledgling lawyers in the face of that oncoming tide that controls all of those institutions to a conservative and principled approach to law that is grounded in objective truth, principle, and constraint? And I don’t have all the answers but let me suggest two that are relevant to thinking about the state of the legal profession today.

 

First, this is an ethics and professionalism talk dedicated to the inestimable Ron Rotunda, and I think that it is important that we remind young lawyers that lawyering is not merely an occupation — it’s not just a job that you get to do — but it’s a profession and that representing clients — whether as a zealot advocate or as a counselor, whether you’re in the public sector or in the private — is actually a sacred trust. And there are some, I know, who find ethics and professional responsibility either as a law school class or as mandatory CLE, as we often encounter it, some think of it as tiresome and boring. I have heard that said. But I have to say, at this point in my career, I’ve served as the Designated Agency Ethics Officer for the Department of Labor and for the Office of the Vice President. I’ve taught numerous ethics CLEs. I’ve had the displeasure of testifying for five-and-a-half hours in a state ethics proceeding, and as I read through the rules of professional responsibility today, I actually view them very differently than I did when I was just learning them in law school and, honestly, found them a little bit boring then too.

 

They really remind me that we as a profession are called to be stewards of the law, that we have a responsibility outside of just the immediate case in front of us, just the immediate client, and so, for example, we are called to fierce and zealous advocacy when serving as advocates, but it’s a bounded advocacy. You’re not allowed to make false statements. You’re not allowed to make arguments that aren’t supported by sound reasoning. You’re allowed to advise your clients and to help them pursue their interests, but the rules of ethics say that, in doing so, your job is to empower your client to make informed choices, not to steer them in the direction that you want to, and, even if your advise is considering a direction they want to go, to make sure that your advise is fulsome and includes all the potential downsides and that they really are empowered through that to make an intelligent and informed choice.

 

Those rules of ethics that bound -- that bind us and bound the way that we practice are really all intended to inculcate, I think, respect for the rule of law and the notion that we as lawyers are called to a high calling of standing between the state of nature and where we are today. Civilized society at the very republic depends on a respect for the rule of law, a respect for lawyers, whether they’re serving as counselors or as advisors or as executive officials or legislators, to understand that they are serving that high calling. And I had one particular example where I had to consider the way in which lawyers -- and I think this is true, whether you’re a family law practitioner, whether you are doing contracts for the guy down the street, whether you are serving as a clerk on the Supreme Court, whether you are in big law, litigating the most important antitrust case in the country. All of us, by doing our jobs well, by making sure that our clients feel that their voice has been heard, that there’s an order and a system and that decisions ultimately have some basis in principle and that our -- the system as a whole is deserving of respect is what keeps us from lapsing through.

 

And as Counsel to the Vice President, people remember what happened on January 6^th and the fact that Vice President Pence was called upon to make a decision as to what he would do that day, but people don’t remember, for the most part, that we were sued twice in December. We were sued on December 23^rd and then sued again on December 28^th with lawsuits seeking to compel the Vice President to exercise what they described as his constitutionally mandated authority to decide whether the electoral votes that had been submitted to him as President of the Senate were fraudulent and really the correct votes or not.

 

One of the things that we had to think about in doing that was whether we were going to invoke the political question doctrine to try to make those lawsuits go away. There were all kinds of threshold problems with those lawsuits. What were the standing of the people involved? And we did make those standing arguments. Why are you suing the Vice President to empower him? That’s a little bit of a strange construct of a lawsuit. Usually, you sue somebody to restrain them in some way. They were actually suing to try to empower us and compel us.

 

But there were many who advocated for invoking political question doctrine, the notion that the courts should just stay out of this lawsuit. And in talking it through with the Vice President, we decided not to make that argument. And one of the reasons we didn’t make that argument was if the courts ultimately would not decide an actual dispute, had we taken the opposite position from the one that we did and said, “Yes, we do think that we have the right to decide these fraudulent ballots. That was our position.” You have an opposed Congress on the other side, the President and the Vice President, Congress on the other side of it, and if the courts decide to stay out of that, there is no other institution to which that decision is committed. And the only thing left is for that issue to then be essentially decided in the streets.

 

That’s what we felt that we were confronting there. And so, we didn’t make the political question doctrine argument at that time, but then, come the week of, we were very glad we hadn’t, not just because we thought that it was the wrong outcome but because one of the things that was pushed on us was the notion that, well, go ahead. You don’t have to worry about the courts intervening and stopping you from doing what would be in your political interest to do here by going along with what the President was suggesting we should do at the January 6^th vote count because the courts will stay out. It’s a political question. We disagreed.

 

So in addition to this higher calling of our profession, I think that the other thing that we can do to call young lawyers into a higher understanding of what they could do and why conservative principle -- a principled approach to the law is important is to remind them that ours is a just and heroic cause. We fight against odds that sometimes seem overwhelming because the institutions truly are stacked against us, but we have to be bold in that fight. You count the cost and never give up.

 

I think Churchill might have put it this way when considering the current moment. We will fight them in the courts. We will fight them in the legislatures. We will fight them in the administration agencies. We will fight them in the law schools. We will fight them in the public forum. We will never, never, never give up, but in doing that, it is so essential that we remain true to the principles for which we stand, that we not sacrifice long-term principle for short-term gain, or we will ultimately be no different than them.

 

Going back to Star Wars, again, there’s a point at which Luke asks Yoda, “Is the Dark side of the Force stronger? Is it more powerful?” And Yoda says, “No. It’s not more powerful, quicker, easier, more seductive.” And I think, particularly, for those who are in the realm of public service, where the levers of power are given to us from time to time, there can be that temptation to do that which seems quicker, easier, more seductive. How many times have we seen a Democrat president say, well, Congress won’t do what we need them to do on immigration. Therefore, I’m just going to create DACA by executive order. Congress won’t do what they need to do on student loans. Therefore, I’m just going to do it by executive order. It’s the quick path. It’s the easier path. It’s the politically advantageous path sometimes.

 

But by adhering to principle, we’re not tying one hand behind our back, but rather, we are calling our profession to normative constraints that, I think, as we’ve seen with Justice Kagan, Justice Jackson -- again, I’ve read their decisions. It’s not always outcome determinative, but I think it really does make a difference in how people think about the law. And so, I think, for young lawyers coming up in the profession today, calling them to fight that bold fight and to do so in a principled way is a compelling calling. And so, even though we’re arguably fighting a little bit from behind as the legal profession, there is a real path forward and a real reason for hope.

 

I thought I’d finish off this talk and then turn it over to Josh to start asking some questions. When I ultimately had to testify before the January 6^th Committee about my experience in the Vice President’s Office in those final days of the administration, I got to do a written statement. Usually, for a normal hearing — those hearings were anything but normal — but usually as a witness at a hearing, you would get to read a written statement at the beginning. I submitted a written statement that I wasn’t allowed to read, but I did have one passage that I think it’s worth my reading three paragraphs of that I didn’t get to read at that time because it just encapsulates strongly my thoughts on where we stand in this moment as a profession and as a nation.

 

I wrote, “This committee is considering changes to our statutory laws to prevent a recurrence of January 6^th. I agree that changes should be made. The truth is, however, that our enacted laws were already clear that the Vice President did not possess the extraordinary powers that others urged upon him. New statutes will make little difference if we do not first inculcate in our citizens and demand in our leaders’ unfailing fidelity to our Constitution and the rule of law. That means you always follow them, even when it hurts. You stand up for them, even where there is a cost.

 

We are losing — I pray we have not lost — a common devotion to the first principles that have bound our people together for more than two centuries and have made America a beacon of hope and freedom in the world. Our Declaration of Independence recognizes as a self-evident truth that our God-given and unalienable rights to life and liberty depend, for their security, on the just administration of the laws in accordance with the consent of the governed. The law is not a plaything for presidents or judges or officials to use to remake the world in their preferred image. Our Constitution and our laws form the strong edifice within which our heartfelt policy disagreements are to be debated and decided. When our elected and appointed leaders break, twist, and fail to enforce our laws in order to achieve their partisan ends or to accomplish frustrated policy objectives that they consider existentially important, they are breaking America. We should not feign surprise when our citizens treat the law and the Constitution with the same level of respect that our leaders do.

 

And so, when I look out at the audience of today’s webinar attendees, I really do find myself hopeful for the legal profession. It’s tempting to despair sometimes, but that hope isn’t because of exactly where the profession is today. But it is because of how far we have come in those last 50 years and because of how much confidence I have that lawyers like those in attendance will be paradigms of those virtues of our profession that really will call that next generation of lawyers to principled practice and to help restore a respect for rule of law that, frankly, is fraying in this country at the moment but that our profession as stewards of the law has just a key role to play in upholding. So those are my remarks. And Josh, maybe I’ll turn it over to your initial set of questions.

 

Prof. Josh Blackman:  Sure. I just want to say on behalf of everyone, thank you, Greg. You are in the right place at the right time or either the wrong place at the wrong time. But your presence today was very important for our republic, and I want you to talk about the role of an attorney in regard to duty. You were a government lawyer. You had a duty to your client, Mike Pence. You had a duty to the United States as a government lawyer. You also had an oath to the Constitution. And on that very chaotic, hectic period leading up to January 6^th, how did you sort of think about these duties you owed, and how did that influence your service to your client and your country?

 

Gregory Frederick Jacob:  Yeah. So that’s a great question. Those were difficult days, shall we say. One thing I’ll say is that the memos that I wrote, and there’s three of them that have been made public. One was on Election Day. And then, there was another one on December 8^th and then, a final one on January 5^th. And I had an acute understanding that I had a client that was both an office, an institution, the Office of the Vice Presidency, and a person who was in that office, Mike Pence, who was our vice president. Thankfully, for me, there wasn’t really a divergence with my client of the -- between the interests of the office and the interests of the individual and where their urgings were.

 

When I first sat down in December and talked with him about the Twelfth Amendment, what it means to be President of the Senate, how the January 6^th vote count works, he just intuitively understood that it made no sense -- just the principle of the Founders that no man should be a judge in his own case. Mike Pence is a lawyer, and he had served as a per diem judge in Indiana back in the days when he was practicing, and he just said to me early on, “I’ve been a judge. There’s no way you would ever allow a judge, if there actually was some authority to decide something, to do so where his own interests are so fundamentally on the line, as mine obviously are. I’m on the ticket. Obviously, I would like to win.” So that made it a little bit easier for me.

 

But nonetheless, if you look at those three memos, you’ll see an evolution in the advice. On November 3^rd, it’s just a short two-page memo, and it essentially says, look, there is competing scholarship on exactly what your role will be on January 6^th. But what is clear is you will be sitting on that dais. You will be the public face of that vote counting session. There’s this thing called the Electoral Count Act that, at least, it says that Congress has the power to decide some things on that day. And if there’re going to be any decisions made on that day, not taking any position at this time as to whether that would be proper, it’s very important that you stay out of any statements regarding what the state of play is in the election, in terms of disputed states, because ultimately, you’re going to be the one presiding in that [inaudible 00:27:23].

 

But I didn’t take strong positions on anything because I had not dug through all of the scholarship. I had my views. They were similar to the Vice President’s instincts as to what did and didn’t make sense. Then, by the time you get to the December 8^th memo, you see we’ve had time to do more research. You see a more-formed view, and then, it takes final form on January 5^th. And so, it was a principled reasoning process. We read every single vote count that had been decided in our nation’s entire history, every Congressional record. One of our objectives was to ensure, knowing --

 

Prof. Josh Blackman:  But when you say, “we,” I want to give credit. Who are the lawyers on your team and your staff? They worked. I think they should also get some recognition.

 

Gregory Frederick Jacob:  I had an amazing, all-Federalist Society team. Matt Sheehan was my Deputy Counsel in the Office. Lindsay Pickell was detailed over from the Civil Division at the Justice Department. I had an intern from the University of Chicago Law School, Ugonna Eze, and had an assistant who was a law student, Devin Petricca. And that small band of brothers and a sister just took on the Herculean task of reading all of --

 

Prof. Josh Blackman:  Was Mike -- Judge Luttig wasn’t part of that brain trust?

 

Gregory Frederick Jacob:  No. He was not. There was a New York Times story published a day or two after January 6^th that had a picture of myself, John Yoo, and Judge Luttig — the lawyers who advised Vice President Pence. And John Yoo has gracefully said since then, “No, I was not involved in the advice process.” The truth is Judge Luttig sent a tweet out on the morning of January 5^th. He had never spoke to the Vice President prior to January 6^th or on January 6^th, for that matter, never spoke to me. We did incorporate late on the evening of January 5^th a paragraph from his tweet, in part -- he -- John Eastman had clerked for him, and our dispute was most powerfully with John Eastman.

 

But our statement was already drafted at that point, and we inserted it as a direct counterpoint to some of the things that John had been claiming. But no, he was not part of the team that was actually advising the vice president through the process. But they did great and Herculean work. But again, it was with both the institutions’ interests in mind. We didn’t feel like we could close any doors until we were certain that the door ought to be closed. And so, we had a very careful and deliberate process to run down every rabbit trail as we went through that process before we came to final conclusions to present to the Vice President.

 

Prof. Josh Blackman:  All right. So that’s January 5^th, you have -- the memo comes out. Walk us through -- I know there’s a lot that happened, but walk us through the events, January 6^th, in your words.

 

Gregory Frederick Jacob:  Well, so I had been -- January 6^th for me -- probably about 2:00 in the morning is when I left the office that night and headed home to get about three hours of sleep because we were late into the night, rewriting the scripts for the January 6^th session. In part, there was a public understanding that there were these alternate electors out there. What role did they play? And Vice President Pence very much wanted the day to be one -- a moment of civic education. He was aware that there were a lot of eyes on us. A lot of people had been lied to about what his authorities were.

 

Late on the evening of January 5^th, President Trump had issued a false press release, saying that the Vice President was in complete agreement with him that he had the power to do this. That had to be repudiated. And so, as -- we were finishing things off with the parliamentary scripts. We had sent the Vice President his statement for him to put the final touches on late that night. We went up to the residence. The Vice President was called out for a phone call with the President at one point. The Vice President’s rule was never to discuss what the President said with staff, so he stepped out, came back in, looking as grim, steely, and determined as I had ever seen him, and didn’t say what the call was about but said, “Time to suit up and get up to the Hill.”

 

And so, we got that statement out. We were trying to hold it out of respect for the President until his speech out on The Ellipse was done. We had to get it out before the session started, so we got it out, I think, about 12:45 or so, the “Dear Colleague” letter that walked through the history, the text, all of the reasons why an understanding of what it means to be a public official who has taken an oath to uphold the Constitution in public service against interest compelled him to do what he was doing that day. And I just have never been prouder of him in getting that statement out. Of course, the crowd started to surge outside as we --

 

Prof. Josh Blackman:  Let me just -- so just to state the play so -- for people watching. The Vice President was in the Chamber at this point when the crowd started merging? Where was the VP located?

 

Gregory Frederick Jacob:  Yeah. So once we -- so the January 6^th vote count proceeds alphabetically, and once we hit Arizona, objections were made, which compelled the House and the Senate, under the Electoral Count Act, to split up. So as the crowd was starting to surge around the building, we had moved back over to the Senate side of the building. The Vice President was up in his office -- not up in his office. He was on the Senate floor. We were in the staff office that was close to the Senate floor.

 

I actually had gone down to get a cup of coffee. I was very tired after trying to churn out a bunch of work product the night before. And so, got down to a self-serve kiosk, coffee kiosk, on the bottom floor of the Senate around 2:10, which actually, I believe, makes me one of the two or three people at the closest point in the building to the first breach point because we were about twenty-five feet from the window where, if you’ve seen the footage, they’ve stolen a police riot shield, and they’re bashing through that window. So the three of us are down there, getting our cup of coffee, and all of a sudden, boom, boom, boom. Then, glass shatters. I hotfooted it upstairs. And I had been drafting --

 

Prof. Josh Blackman:  Do you at that time that there was an incursion coming in? Do you have any advanced notice from Secret Service or otherwise?

 

Gregory Frederick Jacob:  Oh, nothing. Nothing. I had no clue. Up in our office, we just have the Senate floor. I did see some people streaming around the building but particularly on the back side of the building. They moved some barriers aside, but there was no one trying to stop them from doing it, so I hadn’t seen any violence or anything like what was actually happening on the front part of the Capitol.

 

But I had also been having, starting the night before and into that morning, an email exchange with John Eastman, and I had been drafting a very careful email to him, explaining why, after having done all of our research and everything else, there just wasn't any validity to what he was trying to sell us. And that was in part because I viewed it as my role as the vice president’s counsel to demonstrate at all times that we had not come to our conclusion because we had failed to look at anything. We had looked at all of it. Anything you wanted us to look at, we would look at, and here’s why you’re wrong. And so, this email was sort of encapsulating that.

 

And as I got rushed upstairs, they told me I couldn’t stay in the staff office. It wasn’t safe. They needed us to get onto the Senate floor. I knew that was serious because I did not have a Senate floor credential, and I had been up at the Capitol enough times to know that if they’re telling you to get on the Senate floor without a credential, that’s a serious situation. At the same time that that had happened, they had pulled the Vice President off the floor into his personal office right behind the Senate.

 

And so, the Secret Service was trying to block the doors into the Senate chamber because of the folks coming up the stairs. At the same time, the Capitol police was trying to get us through the doors because they knew they couldn’t keep us safe on that side. I just wedded myself to the military aide that had the nuclear football. I figured she was getting through that door. That ultimately succeeded, and so, we got --

 

Prof. Josh Blackman:  Why was she at the Capitol? Why was she at the Capitol? The VP -- the President was far away.

 

Gregory Frederick Jacob:  Yeah. The vice president always has the nuclear --

 

Prof. Josh Blackman:  Oh, it was a football too.

 

Gregory Frederick Jacob:  Yeah. There’s always a military aide with the nuclear codes there just because you never know what’s going to happen in the world. So I very quickly finished off my email to John as I was being whisked onto the Senate floor with a now famous line that I won’t repeat on the webinar, but let’s just say that I can always be proud that my kids will know that their dad is always best known for putting a swear word in a government email. The only time I ever did that, but one that became public. And quickly thereafter, we were whisked down to the secret location. It’s not so secret anymore that we were brought down to the Capitol loading dock, and Secret Service were telling us, “Get in the cars. Get in the cars.” I did.

 

I quickly noticed that the Vice President did not and was having an animated conversation with the head of his detail. I got out. And the Vice President was saying that he trusted the head of his security detail — he wasn’t the one behind the wheel — and that there was no way that he was giving there any chance that we weren’t going to complete our work there that day. And so, unless there was imminent danger to life, he was staying. He wasn’t getting in the car and risking that some order would come in that would whisk him out of the building and give the rioters on the outside the satisfaction of seeing the Vice President of the United States flee the scene.

 

And so, we were down there for the next four hours as the Vice President called on the forces of the government to restore order there. It wasn’t the exact message they were getting out of the White House initially, but eventually, everybody alighted on a message of, “Please go home.” And things managed to be cleared out. And of course, we finished our work that day. My email exchange with John continued and addressed some topics of professional responsibility along the way, which have given rise to some later testimony on my part, but it was a late night, for sure, didn’t end until about 4:00 in the morning.

 

Prof. Josh Blackman:  And why did you think to keep emailing John Eastman whilst the riot was unfolding, and people were marching? I’ve looked at the time stamps on your communications, and I’m like, wow. I would have had my phone in my pocket, running with my head on fire. What promoted you to even think to email Eastman about these things?

 

Gregory Frederick Jacob:  Well, so the very early morning messages, which were just setting things up -- this is when he was invoking Lincoln and the writ of habeas corpus was the arguments he was going to that morning. There’s just so much unconstitutional stuff happening, that all the laws but one. This Electoral Count Act thing, you can’t have fidelity to that when that means that the entire republic is going to fall apart. But I was just drafting that email, once we got the statement out, to just sort of memorialize that I had walked down all the trails and everything. I had quickly sent that off.

 

But once I got down to the secret location in the building, he actually responded to my email and said, “It’s not my fault you’re under siege. It's because you and the Vice President didn’t have the courage to do what is necessary.” That got my dander up a bit. And so, I wrote then a lengthier email, explaining what the role that I felt that he had played on that day. And John had fought many a legal fight in the days preceding that that I very much admire. Didn’t always agree with everything that John said and did, but he had fought some good fights.

 

But in this particular fight, I had seen the quality of the legal advice, at least as I saw it — there might have been more behind the scenes that I never had an opportunity to see — but the arguments that were presented were not fulsomely presented and did not really empower the client to make a decision with full knowledge of exactly where the legal argument stood. So that was where John and I stood on our differences through that.

 

Prof. Josh Blackman:  Yeah. Let me push a little further because this is a call for the Professional Responsibility Practice Group. A number of attorneys who were involved in January 6^th have been indicted. Several have been put through disbarment proceedings. I know you testified at the John Eastman proceeding.

 

What role, if any, do you think that state disciplinary committees have to play for lawyers who gave this advice? And if you ask John Eastman, he was giving just con law advice. He was just advising his client. Where do you think the role is for the state bars to actually take action based on the advice given on and before January 6^th?

 

Gregory Frederick Jacob:  So I should be careful how I answer this because I’ve been subpoenaed many a time since January 6^th. Every time that I’ve testified, it has been pursuant to a subpoena. And it’s my obligation to testify. Where issues of executive privilege have come up, I have stood on those issues executive privilege until they were resolved by a court, whether or not I thought that the claim -- my role as an attorney in the executive branch is not to be the final arbitrator of whether executive privilege applies to a particular situation or not. So I’m an institutionalist in that regard. I have reason to believe I may be called to testify in further proceedings, based on my title being named several times in certain complaints.

 

I do have serious concerns about the criminalization of lawyering. And I think that there is a wing, at least, out there who would love to use this moment to chill lawyers who do have fidelity to conservative principle from being willing to fight for causes out of fear that they will be prosecuted, disbarred, blackballed out of law firms, as happened to a number of people who had very honorably served in the Trump administration and then had a hard time getting jobs on the backside. So I’ve got concerns about all of those things. That said, I mentioned before, lawyers have an obligation, for example, not to make false statements. It’s very clear in the rules of professional conduct. If you make a false statement, that is something -- in the course of your duties, if you’ve been put on a stage and your credentials have been invoked as authority and support for the credibility of what you’re saying, certainly if you’re before a tribunal — but it also applies more broadly to statements to the public — it’s -- it is appropriate for the bar to at least look at that.

 

Personally, I think disbarment for even providing non-fulsome legal advice is very strong medicine that I think that they should really think twice about, perhaps. But there’s a whole range of things underneath that that as they dig into -- but as I said before, there is a clear obligation to not pitch something that is a far-flung legal theory that might have some credibility on the face of the text, but when you actually measure it up against all of history and everything else, it’s never going to hold water. It’s going to go down in the courts 9-0, as John ultimately acknowledged to me in that conversation on the 5^th that it would.

 

You can advise your client about that, but if you don’t tell your client, “Yes, this is going to lose in the courts. Here’s the reasons why political question probably won’t work. Here are the practical consequences for how all of this will actually play out and the damage that it will do to push this.” Those are things that lawyers have a responsibility to do to empower their clients to make good decisions. Whether John’s particular client was interested in all of those things or not, I don’t know. But I didn’t see him empowering his client with those decisions -- with that kind of information.

 

Prof. Josh Blackman:  All right. Let me go to the Q&A. I’ll ask one here. It says, “Do you have any thoughts on the unique role of career attorneys in the federal government, specifically when they’re concerned that political appointees are acting legally? How has January 6^th impacted their role?”

 

Gregory Frederick Jacob:  So I think -- career attorneys and political appointees take the same oath to uphold the law and the Constitution, and I think that there are two important things to consider in that regard. One is the fact that we have a unitary executive, and so, there is authority within the executive branch that flows down from the president through appointees that -- I may not always agree with every legal decision that’s been made. I gave the example just a few minutes ago that every time that President Trump has invoked executive privilege with respect to potential testimony that I may give, I have, until a court disagrees and tells me that I must testify because executive privilege doesn’t apply, I give presumptive weight to what the President has said. And I will not testify to it until a neutral arbitrator decides that.

 

When I went into the January 6^th Committee, they said, “Well, some of the witnesses have been willing to allow the Chairman to determine whether executive privilege applies or not. Would you be willing to consider that?” I said, “No. I don’t think that constitutional scholar Bennie Thompson,” who, let’s remember, back in the 2004 election actually exercised his government authority, exercised his vote to try to disenfranchise the people of Ohio by rejecting their electoral votes on claims of fraud that were at least, if not more so, thin than the claims that were being made in the 2020 election. “So no, I don’t think that a Congressional chairman opining on executive privilege is going to do it for me. You’re going to have to get a court to order me to testify, if you want to peek behind that veil.” And that was without regard to whether I thought that the executive privilege indication was meritorious.

 

And so, I think what that means is there is a point at which you have to say, “I can’t do this. You’ve commanded me to do something that is unlawful, unconscionable, etc.” That, effectively, is what happened with Vice President Pence on January 6^th. He loyally served President Trump, helped get a conservative agenda through for all that time, was behind him on every piece of the agenda all along the way. But when he was commanded to do something that he couldn’t do consistent with his oath, he said, “No.” So there is a role for that, and it’s for both career and political appointees. But you can’t let -- if it’s a gray area, you have to default to authority on it.

 

Prof. Josh Blackman:  Let’s talk about the oath for a bit. You mentioned the oath that civil servants take, the civil that the VP took, the oath that you took when you began the job. What’s the significance of an oath to the Constitution when you’re a government lawyer? What does that actually mean? What does that resonate with you, especially after your experience the last couple years?

 

Gregory Frederick Jacob:  Well, it’s two things. Lawyers are sworn into the bar, as well, in the first instance, right, sworn or affirmed. And so, just in entering into the profession in the first instance, there are certain obligations that we agree to take upon ourselves as members of the bar. And as I indicated in my talk, those rules of ethics and professional responsibility, the constraints that we agree to take on at the same time that they supply us the credentials that allow us to practice our profession are significant. And then, of course, there’s the actual oath of office when you step into an office, including for career professionals, and what it means is that you are going to faithfully apply and execute the laws.

 

And too seldom -- too often, I think, we see, particularly presidents, very publicly, not actually doing that. And I think that it has had a really corrosive effect on our republic. But it becomes the foundational moment. To me, it’s very significant that oath is, “So help me, God.” It’s an oath that’s not just to my fellow man and to my government but to a higher authority and to my Creator, a promise to set aside self-interest and, instead, to faithfully serve in that role.

 

Prof. Josh Blackman:  We have a question about a lawyer’s ability to advocate for changing the law, for example, in Brown v. Board of Education, [inaudible 00:50:51] precedent. And the question is, “Would your view on limitation of what lawyers can advise restrict the ability or does this sort of change the law?” Right? The person writes, “If we tie conservative lawyers’ hands, are we just letting the left push the envelope while we abandon the battlefield?”

 

Gregory Frederick Jacob:  So absolutely not. The left would love it if the law could become a one-way ratchet where every time they earn a new victory, effectively, in my view, overturning legal principle on some issue, they could lock that gain in forever, and it would be impossible to make arguments against it. That’s not the standard under the rules of professional responsibility. You’re allowed to make well-reasoned arguments.

 

And by the way, with respect to John Eastman, in particular, I disagree with his legal conclusions. That’s very public in both my memoranda and in the Vice President’s January 6^th letter. But I have always made clear I do not think that that legal conclusion justifies any kind of sanction, justifies any kind of criminal prosecution or anything like that. The problem to me is not the conclusion. The problem was not following the ethical obligation to fulsomely inform the client of all -- of just how tenuous that theory was and exactly how it would play out on that day. And I was in meetings and on phone calls to know that I had never seen those explanations given, which -- to which the client was entitled. And again, I’ve always made clear I haven’t been in all those backroom meetings, and so, I can’t say one way or another whether that obligation was ultimately fulfilled, but there’s reason to question it, based on what I’ve seen.

 

So under the professional rules, as long as you have a good faith argument for a change in the law, you’re allowed to advance that. And that’s true, certainly, of, I’ve lauded before, the death of the Death Star, the destruction of the Death Star, Roe v. Wade. Right? That was a huge change in the law. But really, it was a restoration of the rule of law rather than -- it was really returning it to where it always should have been in the first place. And again, nobody defended it on its merits. There was too much rot in the fabric to try to actually stake any kind of principled argument on Roe or Casey. There was no argument to that effect. It was all about stare decisis.

 

So no, we shouldn’t have our hands tied, and yes, I think that we should boldly make well-reasoned arguments, well-founded arguments. The particular argument that was made on January 6^th -- again, I don’t think it was sanctionable, in and of itself, to come to that conclusion, but the reality is nobody would ever want behind the veil, the Rawlsian veil of ignorance, nobody would ever want that to be the rule. It just makes no sense. If you sat every Founding Father down and said, “The vice president get to decide these things on their own?” Every single one of them would have said, “No way.” That would be the death of the republic to allow one person to make that kind of decision, which, by the way, John agreed with me, as we sat down on the morning of January 5^th, that that was the case.

 

Prof. Josh Blackman:  A question we have from the audience. It’s very difficult to give advice to a client that they don’t want to hear, but this is not just any client. This is the vice president or maybe the president or the Cabinet member. There must be a tremendous amount of pressure to perhaps give advice to someone who doesn’t want to hear. Now, maybe Pence and you on are on all fours, but maybe you could speak to, in general, giving advice to a government client and they do not want to hear that advice.

 

Gregory Frederick Jacob:  Yeah. Well, and this is -- I served in the Office of Legal Counsel for two-and-a-half years at the beginning of my career, and you would get two kinds of questions. My favorite question was, “What’s the right answer?" And then, you had another question, which was, “Can you come up with an argument that allows us to do ‘x’?” I didn’t love that kind of question quite as much, but it’s a legitimate question. I don’t disagree with the legitimacy of being able to ask, “What are the bounds and the limitations that we have?” And there are times where the job of the Office of Legal Counsel is to tell a president, “No,” or to tell an attorney general, “No, you can’t get there. You can’t do that. It’s not consistent with the law.”

 

And it is hard to do, and frankly, one of my beefs with what happened around January 6^th, you didn’t really see government lawyers -- no government lawyer supplied an opinion that what the President was asking Vice President Pence to do was lawful. No government lawyer did. They had to go to outside lawyers who were willing to supply that advice. And it makes it so much harder when it is really -- it is really difficult to tell a president or to tell a vice president, “No.” And I didn’t have to tell the Vice President -- again, his instinct was with me, so that made things a little easier on January 6^th, but there were other times where it would have been easier to do x, y, or z as head of the Coronavirus Task Force or in other roles that he played where it would have been easier to do x, y, or z, but I had to say, “No. You can’t do it that way. These are the things that you can do.”

 

The client prefers to hear not just, “No,” but “Here are the alternatives. Here are the ways that you might go about doing that.” But it makes it so much harder to be a government lawyer who sometimes is obligated to say, “No,” if you have other lawyers who are willing to step in and sell what was really snake oil on this without a fulsome presentation of the advice. I don’t think that President Trump ever got the kind of presentation that I made to Vice President Pence in considering all of the things. And when I presented it to Vice President Pence, I made sure that I walked him through, like, “Here are the different arguments that have been made. Here are ways that you would be binding the Office, and you need to think about that. Institutionally, what are all the different circumstances under which this question would arise?”

 

But the client’s entitled to that. It’s a great question, and again, lawyers make it harder for the lawyers who have to say, “No,” if they’re willing to put their credentials behind things that they know don’t really work at the end of the day.

 

Prof. Josh Blackman:  Let me bring this back to President -- not President -- Professor Rotunda. When I was in law school, it was during the 2006 mid-term elections and leading up to the 2008 elections. And Virginia had some idea that they would ask voters to sign a loyalty oath, as if you were voting in a Republican primary, you had to basically pledge to support only Republicans. And this was a plan designed to prevent Democratics from interceding in the open primary. And I asked Ron, “Can they do this? Would this actually work?” And Ron wrote right back and said, “There’s a real free speech problem there.”

 

And I think Ron, at heart, he loved this country, and he loved the Constitution dearly. And I think he would have relished having this sort of high-level discussion on matters of constitutional law. I think he would have always put the sort of rules of professional conduct and responsibility first in his mind, so I -- we didn’t see -- we didn’t know what Ron would have done in the 2020 election, but I think he would have approached in a very different way than perhaps his colleague had at Chapman, John Eastman, would have approached it.

 

That’s all the time we have. I thank you all for your attention and for your engagement. And I really thank Greg for being here and just sharing with us his story. And I hope, Greg, you can tell this story for many years to come. And I promise there’ll be no thuds and smashing of glass the next time we speak but hopefully not.

 

Gregory Frederick Jacob:  That’s perfect. That is one of my minimum requirements now.

 

Jack Capizzi:  Well, thank you both very much. On behalf of The Federalist Society, I want to express our appreciation to Greg for joining this year’s Ron Rotunda Memorial to discuss such a worthy topic. And also, thanks to Josh for some truly valuable antidotes about Professor Rotunda and for moderating the discussion. As always, we do welcome listener feedback by email at [email protected]. Please keep an eye on our website as well and your emails for announcements about upcoming programs. A recording of this webinar will be available in podcast form and video shortly. That’s all for today. Thank you all very much for being with us. We are adjourned.

 

 

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