Defending the Rule of Law: Where Have All The Lawyers Gone?
This is a call to America’s lawyers, as guardians of the Constitution and the rule of law, to raise their voices now in opposition to President Trump’s continued systematic attacks on our democracy and our core legal principles.
With each passing day, President Trump appears more desperate, unprincipled, and unrestrained. He is escalating his attacks on core constitutional and legal principles and repeatedly demonstrating his lack of regard for any effort to check and balance the exercise of his executive power or political self-interest.
Although the President’s assaults on fundamental principles underlying the rule of law began even before he was elected and have continued unabated thereafter, his recent assaults reveal increased energy behind his destructive impulses. For example, increasing evidence has emerged that he has pressured the Ukrainian government to aid his reelection campaign. These efforts included withholding U.S. aid to Ukraine, aid that was duly appropriated by Congress. This is an abuse of power in contradiction of constitutional principles as well as a potential violation of federal law that makes it illegal for a person to solicit, accept, or receive from a foreign national a contribution, donation or other thing of value.
If not for pushback from Republican members of Congress, the President would have happily used his own resort for the G-7 summit next spring. Though he backed away from awarding the contract to himself, he continues to violate the Constitution’s Emoluments Clause by retaining ownership of his business enterprise and using the power of his office to funnel foreign and public money into his business establishments throughout the country and abroad. Indeed, by calling it “the phony Emoluments Clause,” he has sought to marginalize both the Clause and the enormously important principles it embodies.
The President is also thwarting the constitutional power of congressional oversight by withholding information and ignoring congressional subpoenas. Strong evidence exists that he engaged in obstruction of justice during the investigation of his campaign’s ties to Russia. And almost every day, he lies to the American people, undercutting the foundation of our governmental system that relies on truth and transparency from our elected officials.
Those are but the most recent examples of President Trump’s unrestrained assault on the fundamental institutions, rules and norms that collectively underlie the rule of law in America. Among the most dangerous of those assaults are his repeated attacks on the integrity and independence of the judiciary, our system of justice, the legal profession and the nation’s top law enforcers. Attacks of that sort are tried and true steps toward a dictatorial presidency, one where the president feels empowered to take any action he sees fit, regardless of the law.
Sadly, through their silence, lawyers have abandoned their role as public protectors of the Constitution and rule of law. Upon admission to the bar, all lawyers take an oath to uphold the rule of law and to protect and defend the Constitution. Despite this fundamental obligation, it seems that many in our profession have remained silent in the face of a concerted, partisan effort by the President to defy the legal values of ethics, independence, comity, decency, and integrity that form the core of our system of government.
Last year, at my 50th law school reunion, many of my classmates engaged in a spirited discussion about the silence – indeed, almost the acquiescence – of the legal profession in the face of these attacks on core tenets of American democracy.
Inspired to act, we formed Lawyers Defending American Democracy (LDAD) and issued an Open Letter to the President and to Congress setting forth the principles of American democracy under attack by the President and calling on lawyers across the country to come to the defense of these core values.
LDAD’s main goal is to stand and deliver a message from the legal profession that, whatever political and policy views individual lawyers may have, there is a center of essential legal, constitutional and democratic principles and norms that must hold in order to preserve our unique constitutional and legal structures. We believe that lawyers are uniquely responsible for ensuring that those critical constitutional and legal structures are understood, viable, defended, and kept alive and well.
Despite that responsibility, the independent leaders of the American Bar remain silent, as do many individual lawyers. Worse are the lawyers who are actively assisting the President by going far beyond their duty to act as a zealous advocate for their client.
It hurts my soul to see our professional leaders and colleagues abandon their oaths and obligations in the face of this extraordinary internal assault on our democracy.
Whether lawyers should resist that assault is not a partisan issue. It is time for the legal establishment to stand and deliver a public critique and counter-attack to the President and his highly vocal enablers and to push back with relentless energy on their efforts to undermine public confidence in our system of justice, laws, and law enforcement, and their bullying into silence and subservience individuals sworn to uphold the law and ensure that the law applies equally to everyone.
To America’s lawyers, I ask you to join the ranks of over 800 prominent lawyers from around the country who have signed on to LDAD’s Open Letter and who have joined in a collective, non-partisan effort to protect and defend the Constitution, rule of law, and core democracy and legal principles and values against the assault on those principles and values by the President in violation of the oath he swore and the obligations he assumed as Chief Executive in a constitutional democracy. If you choose not to do that, I implore you, in whatever effective way you think will work, to let your friends, neighbors, coworkers and elected officials know that these predations are not simply exercises in policy alternatives but instead are the poison through which democracy dies.
Above all, as members of the legal profession, we cannot remain silent or remain on the sidelines.