Document Type

Article

Publication Date

2026

Abstract

This paper, part of a symposium on presidential lawfare, examines the so-called “Stalingrad Defense”—a strategy of total procedural obstruction—within the broader phenomenon of rule-of-law backsliding facilitated by legal professionals. By exhausting judicial resources and weaponizing procedural delays on behalf of political leaders, such lawyers do not merely defend a client; they actively participate in subverting the institutional foundations of democracy. I argue that the standard conception of legal ethics, which emphasizes neutral partisanship and zealous advocacy, is fundamentally inadequate to capture the wrongfulness of lawyers who use legal tools to dismantle the legal system itself. In its place, I propose a “trusteeship theory” of legal ethics, grounded in the theory of democratic self-authorship. According to this theory, as a lawyers must act as fiduciaries of the rule of law rather than mere agents of client interest.

Central to this analysis is the “Accusation in Mirror” (AiM) technique, a favorite tactic of lawyers involved in democratic decay, wherein they abuse the rule of law by accusing their enemies of abusing the rule of law. In effect, they are trolling the rule of law. Using the legal teams of Donald Trump as prime illustrations of these pathologies, the article situates the phenomenon using Ernst Fraenkel’s theory of the “dual state,” in which the business-as-usual of everyday law continues, but has layered on top of it a “prerogative state” that can intervene at will to override ordinary legal processes.

Publication Citation

Forthcoming in Legal Ethics.

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