Five, if not six, of the co-conspirators in Trump’s January 6th indictment are lawyers. Lawyers?!? According to Cardozo con law prawf Deborah Pearlstein, that must mean something.

At least five and perhaps all six of the individuals who are alleged to have conspired with Mr. Trump to strip millions of Americans of their right to have their votes counted had a special duty to protect our constitutional system. They were lawyers.

In one sense, it would be easy to make too much of this fact. The former senior Justice Department official Jeffrey Clark and the former law school dean John Eastman, who seem plainly to be two of the unnamed co-conspirators, are hardly representative of the million-plus practicing lawyers in the United States. Thousands of lawyers, most of them career civil servants, served honorably in Mr. Trump’s administration.

At this point, one might get the impression that Pearlstein’s point is that while it’s deeply troubling that even five lawyers were willing to sell their souls in the hopes of Trump’s favor, the vast majority of lawyers, now about 1.5 million, are honorable. One might be wrong.

But at the same time, the key role lawyers played in buttressing the former president’s plans speaks to a troubling crisis in the legal profession. The lawyers he conspired with — whose alleged conduct breached a host of rules of professional ethics, in addition to provisions of criminal law — did not emerge from whole cloth. They are the product of a profession that has changed over the past 40 years, in ways that tend to reduce the supply of Rosen-type lawyers in public roles, and increase the supply of Clarks. And unless we make changes in the structure of public lawyering and the professional path lawyers take to get there, we will not only lose one of our most effective checks against authoritarian power, we could accelerate its consolidation.

Do five lawyers damn a profession? Do they amount to a crisis, particularly in light of other lawyers who were similarly positioned in the Trump administration refusing to scheme and connive to steal an election? Pearlstein says these five “speak to a troubling crisis,” not because they speak to anything of the sort, but without a troubling crisis, why would something need to be done?

After devolving to the post-Watergate push by the American Bar Association, when it still represented the legal profession, for a requirement that all law students take a class in professional responsibility, and later add the Multistate Professional Responsibility exam to the bar exam, Pearlstein argues that time has not merely changed, but changed for the worse.

But the prospects for systemic reform seem far less promising than they did half a century ago. Today, the formally nonpartisan A.B.A., which 40 years ago claimed the membership of about half of American lawyers, now represents roughly a fifth of them, its influence supplanted in key respects by more partisan alliances, the conservative Federalist Society most influential among them.

First, it’s important to note that she characterizes the ABA as “formally nonpartisan,” which might lead non-lawyer readers to believe that the flight of lawyers from what the ABA has become, a grossly partisan social justice organization, was because they were lured away by evil conservative groups. The ABA’s “influence” wasn’t supplanted by anyone, FedSoc included, but lawyers wanted nothing to do with an organization that had forsaken the profession to become an adjunct to the left wing of the Democratic party,

Second, the link in the above quote is to an Atlantic piece by Pearlstein about her adoration of federal bureaucracy. It’s unclear how many members the ABA has today, and even less clear how many are dues paying members as the group teeters on bankruptcy. But what is clear is that lawyers fled the ABA in droves when it ceased being a bar association and instead went woke.

The effect of this partisan shift has not been limited to the courts. From law school to law practice to government service, elite lawyers can today move through their careers along effectively parallel professional paths. Most major private law firms with Supreme Court practices today consistently show an evident preference for hiring former clerks from judicial chambers on the firm’s preferred side of the political spectrum. Lawyers hired as political appointees into the executive branch are likewise increasingly identifiable as on one partisan track or the other. Conservatives in recent decades have worked to expand the role of partisan lawyering further still, even attempting to give hiring preference to conservative lawyers in career government service positions, jobs that post-Watergate civil service laws aimed to insulate from exactly such partisan pressures. Such moves send a clear signal to young lawyers: ideological loyalty is a credential, not a disqualification.

One might consider this paragraph as a condemnation of the partisanship of the ABA, of law schools and of academics, but it’s expressly about conservative partisanship. A small minority of lawyers serve as Supreme Court clerks, or work in Biglaw making Bigbucks. Even so, if there is any partisan pressure on law students, it’s definitely not conservative. Did the Obama administration give “hiring preferences” to conservative lawyers? Does the Biden administration? The link, to a 2008 DoJ report on political hiring, fails to take into account that two of the past three administrations were Democratic.

In this environment, it is not hard to see why government lawyers like Mr. Clark and even nongovernment lawyers like Mr. Eastman might have come to believe that their best path to career success was to elevate partisan loyalty over professional ethics. And it is not hard to see why these incentives may prove devastating for constitutional democracy. The Trump case shows lawyers not only failing to make sure their government clients operate within the bounds of our democratic system, but stretching to help those clients craft ways to subvert it. The risk to the rule of law is equally apparent. For when lawyers trained in this way become judges, deciding cases in ways that appear to elevate partisan interests over professional norms, they undermine public confidence in the courts as impartial arbiters of social disputes.

The problem isn’t that Pearlstein is necessarily wrong about the damage partisan lawyers in government can do to the integrity of the legal system, but that the problem is a two-way street. While there are five, maybe six, lawyers believed to be co-conspirators with Trump, there are thousands who subscribe to progressive ideology by any means necessary. How is that going to fare for “public confidence in the courts as impartial arbiters of social disputes”? The good news is five, maybe six, don’t reflect an entire profession, reducing her argument to pointlessness. Some lawyers are dangerously partisan, but not all lawyers.