LAW.COM: Legal Heavyweights Call Out Bar Associations to Respond to Trump Mistruths

September 13, 2019
By: Michael Marciano
This article was originally published on Law.com

 Representatives of hundreds of attorneys, law firm partners, scholars and  judges who raised  alarm in February over what they called the abandonment of the rule of law by the Trump administration have released another call to the legal community to speak out against attacks on truth and justice.

In a statement released this week, a steering committee for Lawyers Defending American Democracy said President Donald Trump has  committed “serious violations of the basic values of truth, law and civility, which lawyers must defend,” including attacks on the media and issuing false statements to the public.

Led by former Massachusetts Attorney General Scott Harshbarger, LDAD was founded by members of the Harvard Law School Class of 1968 during their 50th class reunion last year. One of the group’s first questions was “Where’s the American Bar Association?” Class members agreed they needed to speak out about the rule of law being undermined at the U.S. government’s highest levels.

“If we are to fulfill our obligations as members of a profession charged with protecting and defending our Constitution, we must speak out when we see democracy and the rule of law being undermined at the highest levels of our government,” Harshbarger said. “It is time for lawyers—as a profession—to defend the checks and balances and demand accountability from lawmakers.”

As of this month, more than 550 attorneys have signed an open letter calling on Trump to respect and honor the principles and norms of American democracy, including truthfulness, independent branches of government and freedom to engage in civil discourse.

While the LDAD’s statements are in line with what many liberal groups have said in criticizing Trump, the organization is a self-described nonpartisan collective including 30 acting and retired judges, 70 former or current law professors and deans, 85 current and former government officials and 90 law firm partners.

In Connecticut, members include Yale Law School lecturer Eugene R. Fidell, who said Wednesday that, while there is not one single event that precipitated this week’s announcement, it is almost a lack of news about resistance to attacks on truth and justice that has become alarming.

“The kind of symptoms that we’ve seen in the past have accelerated and have reached the point where no one who cares about the rule of law can put them fully out of mind,” Fidell said. “They’re just so overwhelming at this point, it’s a matter of degree. Is there a specific precipitating event? No, I can’t say that there is, but it’s reached a boiling point, I believe.”

While the situation for some may conjure recollections of German Lutheran pastor Martin Niemöller’s poem that begins “First they came for the socialists,” engraved in stone at the New England Holocaust Memorial in Boston, Fidell said the point is for members of the legal community to take note of what’s happening right now and speak up. “We’re living in an environment in which government has become a reality show,” he said. “A great deal of oxygen has been taken up. There’s a limited public attention span, and so much has been taken up with trivia and distractions that the leaders of our society and leaders of the profession lose sight of the forest through the trees with the outrage du jour.”

Fidell and LDAD made specific appeals to leaders of bar associations across the country and in Connecticut to be more responsive to blatant mistruths and abuses of the rule of law when they see them. “What I think is missing is the leaders of the bars stepping forward and using their vocal cords to get this set of issues on the public screen,” Fidell said. “I think leaders of the Connecticut bar ought to be generating statements about the rule of law. I don’t know what there is to be afraid of. Be afraid of the erosion of the rule of law. What good is it if you can bring a nice contract action for your client if the whole legal system is under fire?”

While the Connecticut bar has been vocal about some issues, including diversity and inclusion, lawyer substance abuse and immigrants’ rights, the bar has tended to avoid sounding overtly political in its public statements. The bar’s focus in recent years has been on providing services and educational information to both members and nonmembers in the community.

CBA executive director Keith Soressi said Friday the organization “continues to be committed to the protection and the advancement of the rule of law,” noting the bar created a rule of law committee following a conference on the subject last December. “We are committed to it, and we need to make sure the rule of law is protected, as well as letting the public know the importance of the rule of law,” he said. “I think it’s an issue that needs to be addressed and should continue to be researched.”

LDAD signatory and Yale Law School professor emeritus Stephen Wizner agreed that people are getting numb to repeated mistruths and untruths being uttered and perpetuated by the Trump administration. “The whole point of this initiative is to get people thinking about it again, especially lawyers,” he said. “As lawyers we need to be saying to each other, and to our friends who are not lawyers, that this is very significant and we really care about it.”

Both Wizner and Fidell credited Connecticut generally with having an active legislative delegation that has challenged the Trump administration on statements dating back to the “alternative fact” that Trump drew the largest inaugural audience in history in 2017. “You just get numb to it,” Wizner said. “It’s just a question of how to get involved. I think there hasn’t been enough publicity about this organization and how to get lawyers signed on.”

In addition to LDAD, conservative and libertarian lawyers group Checks and Balances was formed last November and issued a mission statement committing to “the rule of law, the power of truth and the independence of the criminal justice system, the imperative of individual rights and the necessity of civil discourse.” The group encouraged other lawyers “to stand up for these principles.”

Fidell recalled that in 2007, when Pakistan’s President Pervez Musharraf suspended the country’s Supreme Court Chief Justice Muhammad Chaudhry, an international protest erupted, including attorneys in the United States who demonstrated in Washington. “Almost 40,000 of them showed up on Capitol Hill on behalf of the fired chief justice of Pakistan,” Fidell said. “If people won’t raise their voices now, what happens when it gets worse?”

Fidell said supporters of Trump should know that adhering to basic truths and justice should transcend political parties. “This is not a political thing,” he said. “It has political aspects, but this is going to stay with us, because the base that thrives on this kind of attack on the rule of law might not realize it, but their ox is going to get gored sooner or later. It’s not going away.”