The legal minds who tried to overturn the election for Trump are welcome back in polite society.

While it hasn’t received the attention it deserves, the courage of Republican election officials and leaders has helped save this country from a total election collapse in 2020 based on lies about incumbent President Donald Trump’s electoral fraud. Georgian Foreign Secretary Brad Raffensperger refused to “find” more than 11,000 presidential votes in Georgia, as Trump personally requested, and declined to apologize to Georgia’s lawmakers falsely declaring that Trump won the state. Attorney General Jeffrey Rosen denied requests to the Justice Department for fraud in the states Biden won. He did so despite pressure from Trump and Jeffrey Clark, a DOJ official who vied for Rosen’s job and was willing to obey Trump’s commandments, possibly in violation of federal law. And Federal Society judges like Stephanos Bibas dismissed fake Trump attempts to overturn court elections without evidence or solid legal theories.

But memories fade quickly. On the right, within Federal Society, and even among others who seem to value courtesy over the preservation of democracy, some calmly greet those who stole Trump’s election or fueled the violent January 6 uprising. Most seem to do so, not because they supported the insurrection or Trump’s ridiculous allegations, but out of willful ignorance of the facts or in the name of courtesy or freedom of expression. It is a mistake and it leads us down a dangerous path.

Almost a month ago, Mark Joseph Stern wrote about how Jeffrey Clark got a comfortable job as Chief of Litigation and Director of Strategy at the New Civil Liberties Alliance, a conservative-libertarian law firm that fights against the “governing state”. Members of the NCLA’s advisory board include former DC Circuit judge Janice Rogers Brown and noted libertarian law professors Randy Barnett and Eugene Volokh. Despite requests, no one in the organization commented on Clark’s appointment.

Or think of the Federalist Society and its relationship with John Eastman, a former Chapman University law professor who “retired” under pressure after representing Trump in fake campaigns and delivering an incendiary speech just before insurgents came on Jan. January stormed the Capitol. As law professor Jim Oleske explained in a post on a Constitutionalists Listserv, Eastman used his academic weight to incite the crowd with lies: “Eastman said he could speak with authority, and definitely did.”[w]I know there was cheating, traditional cheating ‘because'[t]hey, you put the ballot papers in a secret folder in the machine, … you unloaded the ballot papers from this secret folder, … [a]nd voila! We have enough people to barely cross the finish line. We saw it happened in real time last night [during the Georgia Senate runoff], and it happened on November 3rd. ‘”The allegations were falsified and have been exposed repeatedly. In the meantime, Eastman has remarkably claimed that the uprising was caused by “Antifa”.

Prior to January 6, Eastman was the chairman of the FedSoc Practice Group on Federalism and the Separation of Powers. After January 6, when the Federalist Society was asked to distance itself from Eastman, the Federalist Society said nothing. But the group changed its biography on the society’s website to remove the chair position reference, and the website no longer lists the chairs of their practice groups. But Eastman remains a contributor and has spoken at least once at a FedSoc event since Jan. 6.

Then, over the weekend, Eastman was allowed to join that private list of constitutional law professors. The moderator of the list, Professor Mark Scarberry, is a conservative Trump opponent who decided in good faith to join Eastman so he could defend himself. While Listserv posts are not public unless the post’s author gives permission to quote (all of the posts cited here were created with permission), it was clear that Eastman did not defend himself well when he came up with his fake fraud allegations was faced.

Eastman showed no remorse for his remarks or his role in inciting violence in the Capitol. As Professor Steve Vladeck Eastman admonished to rehabilitate in front of these elite professors:

[P]Perhaps you could consider the somewhat different audience to whom you continue to present a thoroughly debunked and utterly unconvincing narrative about the “theft” of a legitimate election, a narrative that helped create the most violent attack on the US Capitol since triggering the British burned in 1814 to prevent the peaceful and lawful transfer of power, and a narrative in which you were far more than just an outside observer – and for which I believe you have a great deal of responsibility.

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Especially given the lack of remorse – and the continued efforts of Trump and his cronies to undermine the last election and lay the foundations for the next attack on democracy – and John Eastman back in the hustle and bustle of law professors or as a speaker at events of the Leaving the Federalist Society or allowing Jeffrey Clark to land safely with a conservative right-wing organization sends exactly the wrong message.

Everyone has a limit that cannot be crossed and the question is where that limit is. Imagine how we would react if evidence showed that Eastman or Clark were child molesters or Nazis. Certainly they would not be hired to make a fancy new appearance, remain featured on the Federalist Society website, or be invited to speak regularly at events, or continue to participate in Listserv discussions among distinguished scholars. We need to treat those involved in attempts to steal the election the same way, not just wait a respectable couple of months before we forget about the insurrection. Democracy in the United States has been the most vulnerable to attack since the Civil War, and the threat to free and fair elections in this country is only increasing because of people like Eastman and Clark.

As my suffrage colleague Professor Franita Tolson wrote on this list:

[S]pretending to allow Eastman in this area is free of any judgments. Just like giving space to hate speech, sexist speech and racist speech … Speeches that seek to undermine free and fair elections have real world ramifications if they find a forum. This Listserv may be okay with this … but owns it.

Some courts have begun sanctioning attorneys for lied to the courts about evidence of fraud in support of the 2020 election cancellation in Trump’s favor. As District Court Judge Linda Parker wrote on sanctioning Sidney Powell, Lin Wood and other attorneys who have filed bogus lawsuits, “This case was never about fraud – it was about people’s trust in our democracy undermine and degrade the judicial process required for this. “

Those on the right – and left – must follow the example of the courts. This is not about a politically correct “demolition culture”. Nobody says Eastman or Clark can’t talk. But trying to destroy an American election and drive American democracy down the path of authoritarianism should have consequences. You certainly don’t deserve rewards in the name of courtesy and free speech.

We need more of the courage we saw after the 2020 elections and not more silence and tolerance.