An election primer for attorneys dealing with theories


Samuel Damren

Conspiracy theories abound these days. As a result, lawyers will likely be confronted with novel questions from clients during the 2022 election cycle, including how best to evaluate the respective merits of popular conspiracy theories. 

It may seem far-fetched, but given the former president’s recent rallies in Pennsylvania and Ohio and outright embrace of Q-Anon, a client might request a meeting to discuss the topic. In the event that happens, I have the following suggestions.

If the client appears at the meeting wearing a Q-Anon lapel pin or a sweatshirt with the phrase “The Storm is Coming” or “WWG1WGA,” tread carefully. If, during the meeting, the client raises his or her right hand with their index finger pointing in your direction, do not assume that the client is interrupting your presentation to ask a question.

As to your views on how to evaluate conspiracy theories as a general practice, you should  probably not start off with the lawyerly observation that “correlation does not equate to causation.” Instead, it might be better to begin by asking how the client thinks conspiracy theories should be evaluated.

If the client responds that widely circulating conspiracy theories always deserve consideration, especially those promoted by an anonymous source who fears violent repercussions from a secret cabal that runs the government out of a pizza joint, and then adds that such a theory should never be discounted until someone proves it is not true, you have a decision to make. 

You could tell the client that conspiracy theories of this sort should not be trusted and are not entitled to serious consideration unless and until they are backed up by objective facts.

The approach is risky. The client might fire you. Worse, the client might tell other clients — while declining to share the specifics of your conversation because it is privileged – that you do not treat client views with the respect they are entitled, and suggest that those other clients fire you as well, thus, putting your entire practice at risk.

This will be a test of character: Are you Liz Cheney or Kevin McCarthy?

Alternatively, as another approach, you could ask if the client has ever heard Chef Emeril Lagasse’s test for deciding whether to buy “pre-washed lettuce.” When the client says “no,” you tell the story.

When Emeril Lagasse sees a package of lettuce at the grocery advertising it is “pre-washed,” he has three questions: who, when, and how. Who washed the lettuce? When did they wash the lettuce? How did they wash the lettuce? If you don’t know the answer to all three questions, Emeril says don’t buy the lettuce.

If the client does not recognize the parallel between this method of deciding whether to buy pre-washed lettuce and the assessment of pre-packaged conspiracy theories on the Internet, you might offer a concrete example. Ask if the client has heard of the “Big Lie” conspiracy regarding the 2020 presidential election. When the client says “yes,” you tell the story.

In Michigan, Trump lost the 2020 presidential election by 154,000 votes. He claims he lost because of election fraud, but he has yet to identify who cast or miscounted the fraudulent votes, when he will reveal that information or how the fraud occurred based on specific acts by specific individuals.  

To date, every court presented with these assertions has ruled against Trump because he could not answer these questions, much less produce evidence to support his assertions.

You might then suggest to the client that in evaluating conspiracy claims, one also has to examine the underlying motives that the person promoting the conspiracy theory might have for doing so.

In Trump’s case, you could float the idea that he is using the “Big Lie” as a loyalty test for Republican candidates seeking election in 2022. The loyalty test those candidates must pass to gain his support is not that they believe the Big Lie, but rather whether he can count on the candidate to lie for Trump when he asks them to do so.

If the client frowns, you could point to the fact that there is a one-to-one correlation between Michigan Republican candidates for statewide office in 2022 who have embraced the Big Lie and candidates that have received Trump’s support, and observe that no one has objectively proven that this is not Trump’s true motive.

The response will tell whether the client has lost their sense of irony as well as their sense of judgment

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