Mother Jones illustration; Getty, Mark Wilson/Getty
President Donald Trump prefers to get his legal representation from TV lawyers. All of his personal attorneys—Rudy Giuliani, Alan Dershowitz, Joseph diGenova and his wife Victoria Toensing—have been regular talking heads on Fox News and in conservative media. But none of them can compete with what attorney Jay Sekulow offers Trump: His own show. And for the past two weeks, Jay Sekulow Live! has been covering Jay Sekulow—live!—as he defends the president on the Senate floor, with special guest Jay Sekulow, proving to be an under-appreciated megaphone for Trump’s case in the media.
As the chief counsel for the American Center for Law and Justice, a nonprofit founded by televangelist Pat Robertson in 1990 as the religious-right counterweight to the American Civil Liberties Union, Sekulow is a legal warrior who fights for the pre-born and battles the IRS, gays and liberals. He is also a Christian media star whose daily radio show, Jay Sekulow Live! reportedly reaches an audience of 1.5 million and also airs on several Christian TV networks.
Sekulow is no slouch in the legal department. He’s argued 12 cases in front of the Supreme Court, many on behalf of anti-abortion groups. And now, as many of Trump’s other lawyers have fallen by the wayside after disputes with their client, Sekulow has ended up front and center during the president’s Senate impeachment trial, arguing passionately that the trial is about a policy dispute and the Democrats’ dislike for Trump and not about high crimes and misdemeanors.
During most ordinary days on his show, Sekulow spends his time counseling callers suffering various moral injuries and possible legal ones. ACLJ lawyers stand ready to help when, for instance, a public library allows patrons to watch porn on public computers, or a caller wants to start a Bible study group at work. But Sekulow has also used the program as his personal vehicle for defending Trump, whom he has represented since 2017, first during the days of the Mueller investigation and now during the president’s impeachment. So it only makes sense that when Sekulow joined Trump’s impeachment defense team, the 63-year-old lawyer-cum-media-personality couldn’t abandon his loyal followers just because he’s really busy defending the president in the Senate.
For the past two weeks, Jay Sekulow Live! has devoted every show to the impeachment trial. In Sekulow’s absence, guest host Nathanael Bennett, ACLJ’s director of government affairs, commands the mic in the studio, flanked by conservative commentators from the ACLJ staff. Sekulow and his 37-year-old son Jordan, who is also a lawyer on the president’s defense team, act as on-the-scene reporters. Calling in blow-by-blow news from the Capitol, they trash the Democratic House impeachment managers, handicap the proceedings like a sporting event, praise President Trump’s tremendous record, and ask for prayers for the cause. “He’s been an extremely successful president,” Jordan said on the show over the weekend. “Like him or not, as he likes to say, ‘Check your 401k.’”
The Sekulows’ dual roles as lawyers for the president and legal commentators on the impeachment trial—and on their own show no less—is an unusual one. Even legal scholar Alan Dershowitz, who’s teamed up with Sekulow on the president’s defense team, noted the potential for conflicts of interest back in 2018, when Sekulow devoted hours and hours of his daily show every week to attacking special counsel Robert Mueller and the Russia investigation. “Whenever you’re representing the president, obviously the line between politics and the law is a blurry one,” Dershowitz told Politico. “There’s both a tactical line and an ethical one. He seems to be walking it.” ACLJ did not respond to questions or a request for comment from Sekulow.
And walking it all the way to the bank. During breaks, the online version of Jay Sekulow Live! runs ads asking for donations to the ACLJ, touting its record defending religious freedom and the rights of the unborn. Such ads have helped turn the ACLJ into a fundraising juggernaut. Between 2014 and 2018, according to its most recent tax filing, the center brought in more than $100 million—millions of which ended up going back to members of the Sekulow family, including Jordan, through a complex web of related charities and vendors.
Sekulow’s show is a significant part of his empire. Jay Sekulow Live! is now carried on 1,000 radio stations around the country as well as Sirius XM. It also airs as a TV show on huge Christian networks like the Trinity Broadcasting Network, where Trump’s favorite televangelists, like his spiritual adviser Paula White, regularly dial for dollars. Sekulow’s audience consists of some of the president’s most loyal followers—evangelical voters who are following the impeachment proceedings closely, if callers to Jay Sekulow Live! are any indication of his demographic.
On the January 24 edition, Nancy from California called in to ask whether the impeachment was an effort to keep the Senate from confirming more conservative judges. Judith was unable to maintain her composure when she called in to say how much she loves Trump. Through sobs, she sniffled, “I get choked up because of all the things he is doing for us.” She had a question for the host: “Once this case is dismissed, can he file a case for malicious prosecution? Because there are elements that this case was instituted and pursued without probable cause. I think there is a case for malicious prosecution.”
“This is going to be a pretty exciting day. I just want everybody to tune in… Just pray for everybody. We’re doing the right thing for the right president.”The real highlights, of course, are when Sekulow father and son capture the urgency of being on the scene and give their listeners the immediacy and intimacy of being in the Capitol. “I’m right outside the floor of the US Senate chamber,” Jordan reported conspiratorially one day last week. “We’re preparing to go in for the final day of the opening statement of the House Democrat members. We’ll talk about all of that, how we plan to respond for the president, today on Jay Sekulow Live!”
As it turns out, though, the Sekulows’ Senate-side reports aren’t much more illuminating than locker room interviews with LeBron James on an upcoming playoff game. Saving their best material for the trial, Jay and Jordan have mostly offered their fans bland descriptions of the next day’s proceedings and touted the impressiveness of their squad.
“We’ve got a great team, a great line up,” Jordan told listeners on January 27. “I just want all the listeners to know that they will see my dad start off the proceedings today, so tune in right after the radio broadcast. And then we’re going to have some great constitutional law scholars and attorneys. This is going to be a pretty exciting day. I just want everybody to tune in… Just pray for everybody. We’re doing the right thing for the right president.”
Jay, who has been busy on the Senate floor, can only pop in for a minute or two now and then. The pre-trial show on Jan. 24 was a typical episode. After lauding Trump for becoming the first president to ever address the anti-abortion March for Life in Washington that was taking place that day, Jordan said, “Hey Dad, can you join real quick?”
Jay obliged: “Hey everybody. As Jordan just told you, we are just about an hour away from going back on the floor. This is the last day of the House’s presentation of the impeachment articles. We will begin our defense tomorrow…We will not only start laying out the case in defense of the president but also pointing out what was wrong with what the House managers put forward. We appreciate everybody praying. We appreciate everybody staying engaged.”
The Sekulows’ radio show often seems like just another extension of their defense of Trump, of course, which naturally it is. Bennett has the important role of holding down the fort while the Sekulows are busy with the serious business of protecting the president. He has filled the daily hour with long C-Span clips of Jay Sekulow from the Senate floor, or with Jordan’s hits on Fox & Friends and Sean Hannity. The day before the trial started, Bennett read all seven pages of the Trump impeachment defense memo on the air before Jordan called in to break the monotony with some words for their fans. “Let ‘em know the team is all prepared to go to battle for President Trump as the trial begins,” Jordan said.
There has certainly never been any precedent for this double duty during an impeachment trial, but the Sekulows’ dual roles are reminiscent of a very different but riveting television legal proceeding: the O.J. Simpson trial, which was a veritable circus of TV lawyers. Laurie Levenson, a professor at Loyola Law School in Los Angeles was one of them. She recalls some concern over the potential conflicts when Robert Shapiro, who had represented Simpson in his criminal case, was commenting on TV about the civil case against Simpson. Generally, lawyers don’t publicly comment much on their own cases while they’re ongoing, in part simply out of concern for their clients and also because ethics rules constrain what they can or should say about a case.
These rules differ by state, but they generally require lawyers to maintain civility inside the courtroom and out. The American Bar Association’s Model Rules of Professional Conduct assert that during a trial, lawyers shall not “state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused.” The ABA’s model code also requires lawyers to avoid any statements that might prejudice the outcome of a case. But of course, all of these standards presuppose a jury trial, which impeachment is not.
In the aftermath of the O.J. fiasco, Levenson teamed up with Erwin Chemerinsky, dean of the UC Berkeley law school, who also had been a TV commentator for the trial. The pair wrote a law review article proposing a model ethics code for lawyers who provide legal commentary in the media, in the hopes of cleaning up the business. Among the model rules is the “duty to avoid conflicts.” According to the guidelines they drafted, as lawyers, the Sekulows’ first duty is to their client, President Trump. But as legal commentators, a lawyers’ duty is to the public or the media organization they work for, with the ensuing obligation to provide fair and accurate commentary on a case.
It’s difficult for the Sekulows to ethically reconcile these two loyalties while both representing the president and running a broadcast show on the impeachment—though their attempt to do so may explain why most of their on-air commentary is so insipid. Even so, the impeachment proceeding isn’t really a legal or criminal trial—it’s a political proceeding. And because of that, the ethics and bar rules mostly don’t apply. “Impeachment is unique,” explains Stephen Gillers, a legal ethics expert at the NYU school of law. “It is not even ‘an adjudicative proceeding’ as that term is understood. So Sekulow is free to do this, odd as it may appear to others.”
On Jan. 23, after several days of testimony from Democratic House impeachment managers, Jordan came on the show to dismiss most of the evidence as hearsay and to paint the Democrats’ case as weak. “It’s all falling apart for the Democrats,” Jordan assured his audience before ducking back into the chamber. “Thanks, Jordan,” Bennett said, before marveling, “Nowhere else are you going to get updates from the president’s legal team live.”