Author: Deborah Pearlstein, director, Program in Law and Public Policy and the Charles and Marie Robertson Visiting Professor in Law and Public Affairs
Title: The Democracy Effects of Legal Polarization: Movement Lawyering at the Dawn of the Unitary Executive
Journal: Journal of American Constitutional History

Pearlstein’s history details how the sweeping "unitary" theory of executive power — an idea at the heart of the Supreme Court’s immunity decision in Trump v. United States — has been used since the origins of the conservative legal movement in the 1980s to weaken internal checks against wrongdoing in the executive branch.

“Long before the idea found any foothold in the courts, the theory was used to undermine key ethics checks on Justice Department lawyers — checks put in place after Watergate to prevent them from aiding presidential corruption,” Pearlstein said.

Pearlstein unearths internal Justice Department memoranda revealing for the first time an effort by then Attorney General Bill Barr in 1992 to strip the Department’s independent Inspector General of power to investigate misconduct by anyone with a law degree in the Department. These and other efforts aimed to leverage unitary executive arguments to relieve government lawyers of obligations to comply with ordinary rules of professional ethics. This weakening of internal ethics checks, Pearlstein argues, in turn, helps explain the central role of lawyers in advancing false claims of fraud surrounding the 2020 presidential election.

The weakness of internal checks on Justice Department lawyers has contributed to the destabilization of rule-of-law safeguards within the executive branch in several ways:

1. The Department responded modestly if at all to high-profile legal ethics scandals in the 1990s and early 2000s. The absence of effective sanctions, coupled with an increasingly polarized system of professional rewards, created critical incentives for elite lawyers to place partisan loyalty above professional obligation. 
2. Lawyers unbound by professional ethics — including obligations of truth and candor — played a critical role in the compromising of one of the most effective internal checks against claims of authoritarian executive power, demonstrating lawyers’ ability to accelerate the consolidation of power. 
3. Growing data suggests that the chronic, systemic failure of lawyers and judges to maintain a publicly credible distinction between the professional functions of law and politics risks undermining public faith in rule-of-law structures altogether.