Ben Ginsberg’s office at Jones Day was like a shrine to the old Republican Party. Its walls and shelves were crowded with campaign artifacts that he had collected on the trail with Bush and Romney. There were campaign buttons and convention placards and old political posters. In the summer of 2020, with the neoclassical building largely deserted because of Covid, Ginsberg started boxing the stuff up.
Week by week, Ginsberg had been feeling worse about his work on the Trump campaign. The president was intensifying his rhetoric about the risk of a rigged election, and he and his Republican Party had essentially declared war on mail-in voting and other policies that might encourage democratic participation at a time when large swaths of the country were under lockdown. At one point, Ginsberg flagged his discomfort to Brogan, describing Trump’s rhetoric as “beyond the pale.” Brogan nodded and said he agreed. Another time he complained to Michael Glassner, a senior Trump campaign aide. Not only did Ginsberg object to what Trump was saying, but it was just stupid politics, he noted. Why oppose mail-in voting in the middle of a pandemic? (Glassner dismissed Ginsberg as an elitist and a prima donna.)
Other Jones Day lawyers, too, were getting anxious that Trump was laying the groundwork to try to overturn the election results if they didn’t go his way—and that Jones Day would end up getting sucked into the ensuing disaster. What would happen if Trump or his allies asked the firm to take on a case to challenge the election results? To sow doubts about the integrity of those results or the vote-counting process? To defend Trump if he refused to leave the White House? These were crucial questions for Jones Day, the culmination of five years of having stood by an increasingly radical leader. For how long would the firm invoke its obligation to remain loyal to even the most dangerous clients?
In conversations with other partners, Ginsberg argued that Jones Day should preemptively draw a series of bright lines: It would not take cases that called into question the fairness of the election. It would not take cases in which it argued for voting restrictions, such as by banning ballot drop-boxes or discouraging the use of absentee voting. It would not participate in the further erosion of democratic norms.
Ginsberg, of course, was no political pacifist. This was the guy who, decades earlier, had launched Project Ratfuck to divide Democrats. He had helped attack John Kerry’s decorated record in Vietnam. But this felt like a dangerous, decisive moment. The way Ginsberg saw it, no believer in the rule of law—and certainly no respectable law firm—should flirt with the antidemocratic notions that Trump and more than a few of his backers were peddling. Ginsberg was sixty-nine years old, and he didn’t want his last presidential campaign to involve helping a demagogue destroy democracy. It was time to take a stand.
That summer, Ginsberg, his neatly trimmed reddish beard long since having faded to white, told Brogan he was leaving the firm. The process of extracting someone from the Jones Day partnership normally took many months; Ginsberg wanted to accelerate it so that he could leave by Labor Day—and well before the November election. Brogan didn’t try to talk Ginsberg out of retiring. When Ginsberg told McGahn, McGahn laughed it off. “You’ll be back in January when you get bored,” he predicted.
Ginsberg doubted it. He left the office for the final time the last week of August. Days later, he was booked to appear on NBC’s Meet the Press to discuss the homestretch of the presidential race. Ginsberg would be on with the Democratic lawyer Marc Elias. Beforehand, Ginsberg reached out to Elias and asked him to please not paint him as a pro-Trump vote suppressor. Elias didn’t know what to make of this, but he had enough respect for Ginsberg that he agreed to pull his punches.
“So, Ben, welcome to retirement, I guess,” Chuck Todd, the Meet the Press host, said as he introduced Ginsberg on TV. Viewers were treated to twelve parched minutes of discourse about the minutiae of state laws governing the counting of votes. When Todd asked Ginsberg whether Trump was inviting fraud by encouraging his supporters to try to vote twice, Ginsberg dodged, referring to Trump’s “mangled syntax.” (“What’s new?” Elias snarked in the background, and Ginsberg chuckled. It was the closest the show got to drama.) Ginsberg didn’t condone Trump’s efforts to question the integrity of the election, but he didn’t denounce them either.
Todd looked bored. “Ben, good luck with retirement,” he said, wrapping things up. “It’ll suck you back in, my friend.”
“It may,” Ginsberg allowed.
Two days later, it became clear that Ginsberg had no intention of fading away quietly. He had written a fiery opinion piece for the Washington Post condemning the entire Republican apparatus, which Ginsberg said was complicit with the president’s ongoing assault on democracy.1 The piece ran on September 8, two months before Election Day. “The president’s actions—urging his followers to commit an illegal act [by voting twice] and seeking to undermine confidence in the credibility of election results—are doubly wrong,” Ginsberg wrote. He blasted Trump and the Republican Party for fearmongering about voter fraud to help the GOP win more votes: “transactional hypocrisy designed to provide an electoral advantage,” as Ginsberg put it. “The president’s rhetoric has put my party in the position of a firefighter who deliberately sets fires to look like a hero putting them out. Republicans need to take a hard look before advocating laws that actually do limit the franchise of otherwise qualified voters. Calling elections ‘fraudulent’ and results ‘rigged’ with almost nonexistent evidence is antithetical to being the ‘rule of law’ party.”
These were strong words, and they were made stronger because Ginsberg was a prominent Republican lawyer who, until very recently, had been representing the Trump campaign. Inside that campaign, Michael Glassner was already irate that Ginsberg was bailing so soon before the election. The Post piece felt like a betrayal. Glassner called Jones Day and lodged a complaint that Ginsberg, by attacking his recent client, was violating professional ethics.
To Ginsberg, this was exactly backward. Sticking to his core principles was the embodiment of ethics—even if it meant turning his back on a client. He couldn’t afford to be complicit any longer.
Marc Elias read Ginsberg’s piece in the Post. Now it made sense why he’d asked Elias, before Meet the Press, to avoid tarring him as part of the problem. Elias called Ginsberg. “Thank you,” he said, “for standing up for democracy.”
In 2016, Pennsylvania had been one of the formerly blue states that sent Trump to the White House; he nosed out Hillary Clinton by 44,000 votes out of nearly six million cast. Four years later, the Keystone State was again shaping up as a battleground. Trump, Biden, and their running mates had been crisscrossing the commonwealth, from rusty steel towns in the west to posh Philadelphia suburbs in the east. In the days before the election, most polls had Biden up by a few percentage points, but at least one gave Trump a slender lead, and in any case, polls were sometimes wrong. This thing was going to be close.
The previous year, the Pennsylvania legislature had dramatically expanded the use of mail-in voting. Now just about anyone could do it. This turned out to be a fortuitous change, since an airborne pandemic would soon transform in-person voting (and so many other once-routine activities) into risky endeavors. The only catch was that ballots had to be received by Election Day.
Normally this would not have posed a problem. But in the fall of 2020, the mail service had slowed to approximately the pace of chilled molasses. What’s more, it had grown unpredictable. Sometimes letters zipped through the system; on other occasions they vanished for weeks. Maybe it was because so many stuck-at-home Americans were relying on Amazon and other delivery services. Maybe it was because the U.S. Postal Service was dysfunctional. Maybe it was both and more. Whatever the cause, there was no escaping the effect: People who sent their absentee ballots days before the election now risked having their votes lost to the sluggish and unreliable mail service.
At the urging of Pennsylvania’s Democratic secretary of state, the commonwealth’s Supreme Court in September 2020 concluded that—due to the combination of the importance of mail-in voting during a pandemic and the chaos engulfing the postal service—the requirement that ballots be received by Election Day risked disenfranchising voters and violating the state constitution’s guarantee of “free and equal elections.” The Pennsylvania court ordered that the deadline be extended by three days.
On its face, this shouldn’t have been controversial. Nobody disputed that the pandemic had slowed the mail service—a circumstance that the legislature could not have anticipated when it crafted the law. Nor could anyone dispute (at least in good faith) that as a result of these unforeseeable events, maintaining the prior deadlines was likely to result in otherwise legitimate votes going uncounted.
But Trump had spent months railing against mail-in voting, and Republicans suspected that these ballots would skew heavily Democratic. And so the Pennsylvania Republican Party set out to enforce the Election Day deadline—and, in effect, to make it harder for those mail-in votes to count. To do that, the party turned to Jones Day.
The lead lawyer on the case was John Gore. He unfurled a series of arguments that appeared tailor-made to harm Democrats. His goal was to get the U.S. Supreme Court to strike down Pennsylvania’s three-day extension. The foundation of his claim was that the extension violated the legislature’s intent and that by granting those extra days, the state was essentially allowing “voters to cast or mail ballots after Election Day. . . . That outcome cannot be reconciled with federal statutes establishing a uniform nationwide Election Day.” This was not true—the Pennsylvania court had specifically said that ballots needed to be postmarked by Election Day. But Gore was seizing on—in fact, his entire argument seemed to hinge on—a thin slice of the Pennsylvania ruling: If late-arriving ballots had illegible or missing postmarks, they would be presumed valid absent evidence to the contrary.
Gore claimed that this was an invitation to abuse. But how? And why? What incentive would people have to vote a day late? It conferred no advantage. It is “common sense” that “voters will know and seek to comply with the widely-publicized November 3 deadline for mailing ballots,” a group of twelve prominent Republican officials from the Reagan and two Bush administrations wrote in a court filing that rebutted Gore’s arguments.2 They added that rejecting Gore’s claims “by the broadest majority possible will benefit this court, our country, and its precious tradition of the peaceful retention or transfer of power.”
At the same time, Gore and Jones Day were representing Trump and the Republican Party on another matter involving Pennsylvania’s absentee and mail-in ballots. In this case, they were trying to force county election boards to toss out ballots with signatures that they didn’t think matched the voter registration records already on file. Otherwise, Gore said in a court filing, the door would be opened to “the counting of fraudulent mail-in and absentee ballots.” He was giving voice—and legal backing—to the president’s unsubstantiated fearmongering about the possibility of an election tainted by fraud. About two weeks before the election, the state supreme court rejected his claim as not being grounded in the law.
Gore and his colleagues framed these as principled arguments about weighty legal matters. But nobody disputed the bottom line, which was that he and Jones Day were advocating courses of action that would almost certainly disenfranchise voters.
As the results trickled in on Election Night, Pennsylvania was tilting in Trump’s favor. At one point the president led by nearly 700,000 votes. Trump declared victory.
But there were a lot of mail-in ballots—well over 2.6 million in the end—and those would take time to tally. The day after the election, with Trump’s lead dwindling, his lawyers filed a motion to join the litigation over Pennsylvania’s three-day extension, which Jones Day was trying to get the U.S. Supreme Court to intervene on. Trump made clear that he was pinning his hopes in large part on this action. The outcome, his team wrote in a motion, “may well dictate who will become the next president.”
Two days later, the Friday after the election, Gore filed a Supreme Court petition directly to Justice Samuel Alito. It asked the court to order Pennsylvania to segregate any mail-in ballots that arrived after Election Day—and to stop counting them. Gore raised questions about whether the state’s county election boards were properly handling the late-arriving ballots and warned that the state was at risk of mixing “invalid” votes with legitimate ones—without presenting any evidence that this was actually happening. Within hours, Alito ordered that the election boards keep late-arriving ballots separate.
As it turned out, this wouldn’t matter. Barely 10,000 mail-in ballots arrived during the three-day extension period,3 and by the weekend after the election Biden was up by more than 30,000 votes in Pennsylvania. (His margin ultimately would be more than 80,000.) At 11:25 a.m. on Saturday, November 7, the Associated Press called Pennsylvania—and with it, the whole election—for Biden.4 In the end, more than three out of every four mail-in ballots went for Biden.5 It was easy to see why Republicans had been so eager to curtail the counting of those votes.
Jones Day would later insist that the firm was simply raising legitimate, hard-to-settle constitutional questions that only the Supreme Court could adjudicate. As Mike Carvin put it in an email to me, “there is an obvious, dispositive, universally recognized distinction between a (pre-election defensive) challenge to voting rules as unconstitutional . . . and a post-election challenge alleging that the election was stolen because voting rules were broken when the ballots were cast and counted. The former is universally accepted as being in the best traditions of the bar because it is, among other things, the only way to determine whether a voting rule is constitutional or not.” (The firm didn’t participate in the outlandish vote-rigging lawsuits that Trump and his allies would file in the weeks ahead.)
This blurred a basic fact: Jones Day and its lawyers were trying to stop votes from being counted—not because they thought there was something improper underway (there was zero evidence of that), but because they detected an opportunity to use the law to give their side a political edge. In the firm’s calculus, the consequences—fanning fears of fraud that would, two months later, erupt into a violent assault on democracy—were immaterial.
In short, these lawyers were operating just as they had been programmed to do. The same go-all-the-way instincts that led down this road in Pennsylvania had also spurred Jones Day to coach witnesses in the Abbott Laboratories depositions, to make a $10,000 campaign contribution on Charles Keating’s behalf, to hurl ethical allegations to help Walmart, to threaten a small Massachusetts town that dared challenge Big Tobacco. The law had long ago ceased to serve as a vehicle for achieving justice, for assuring fairness. It had become something to exploit. And Jones Day—and, for that matter, the entire modern legal industry—had become really good at doing exactly that.