Lawyers need to meet the moment

The legal profession supports and defends civil society – that’s why it’s under siege

Clarence Darrow argues for the defense in the Scopes trial of 1925.

Throughout the legal ups and downs of American history, there has been one relative constant: the importance of having a lawyer. From Clarence Darrow in the Scopes trial to Ernest Besig in Korematsu to Floyd Abrams in the Pentagon Papers case, lawyers have proudly represented their clients — sometimes without fear of personal harm or retaliation from the government, other times in spite of it. This is the country that elected John Adams as president after he defended the British soldiers in the Boston Massacre trial. It is also the country that produced generations of civil rights lawyers who overcame threats and intimidation to enforce the promises contained in our Reconstruction-era constitutional amendments.

This tradition continued through the first Trump administration, when the legal community leapt into action to represent organizations challenging abuses of power and the communities harmed by the abuses. (Recall the images of lawyers rushing to airports after the first iteration of the Muslim travel ban.) Throughout those four years, the legal profession was pivotal in helping civil society to hold the line. By one estimate, the first Trump administration lost in court 80 percent of the time.

This history is important not to lionize the legal profession, but because the Trump administration hasn’t forgotten it. This time around, President Trump and his allies in the Department of Justice (and other agencies) are attempting to ensure that none of their targets, critics, or opponents have access to the legal support they need to stay on the field and continue to challenge abuses of power.

Put differently: President Trump has revived tactics used during the darker parts of American history and is deploying them in a brazen attempt to punish the lawyers who represent clients or causes that the White House perceives as a threat to its agenda.

For the legal profession, this moment may be existential. And the repercussions of the lawyers abdicating their role in supporting and defending civil society are likely to be felt far and wide.

Holding lawyers “accountable” just for doing their jobs?

As my colleagues wrote last week, the Trump administration is attempting to undermine the entire American justice system by flirting with disobeying court orders, threatening federal judges, and bullying major law firms with executive orders meant to cripple their businesses.

Things have only continued to escalate. On Friday the White House issued a memorandum instructing the Attorney General to “seek sanctions against attorneys and law firms who engage in frivolous, unreasonable, and vexatious litigation against the United States,” and further to “review conduct by attorneys or their law firms in litigation against the Federal Government over the last 8 years.” The memo is striking for many reasons, perhaps most of all the clear message the White House is sending: any lawyer who opposes the administration or has in the past will be held “accountable.”

Consider just how chilling that memo is (and is intended to be). The federal government aims to find a way to punish any lawyer who does their job in representing clients against government overreach.

Will this result in actual investigations or attempts to suspend law licenses? Only time will tell. But it doesn’t have to in order to have its intended effect.

Importantly, though, this is not only an assault on the legal profession, or even the legal system more broadly. It’s also an attempt to keep all of civil society at bay by taking a critical support system out at the knees.

An independent legal profession is critical to protecting civic space

Democratic decline is often hastened by a tightening of the “space” in which civil society organizations operate. These organizations and their leaders are vocal counterpoints to the autocratic faction, particularly when they operate as part of a broad and diverse pro-democracy coalition. Civil society organizations play critical roles in identifying and checking abuses of power, keeping the public focused on authoritarian threats, and holding bad actors responsible. They also help to bolster democratic institutions, including the media and the courts. As autocratic factions within a country seek to grow more powerful and insulate themselves from accountability, they often seek to undermine the civil society organizations they see as a threat.

The Trump administration implicitly understands this dynamic and is deploying well-worn tactics to squeeze civil society.

As Shanna Singh Hughey explained last year, here’s how it works:

1. The autocrat sows fear and division. First, the autocrat uses the tools of government power to threaten or retaliate against a dissenter or perceived enemy, which contributes to a climate of fear and sows division.

2. Opponents leave the field. Then, those who worry they could be next begin to take themselves off the field — engaging in a form of "anticipatory obedience." They fall in line or stop opposing the autocrat out of fear of consequences, sometimes even before they themselves are targeted. That leaves fewer people and organizations standing up to challenge the autocrat.

3. Institutions falter. Without broad support (or pressure) from civil society, the institutions that should provide important checks and balances — like the courts and the media — fail to check the autocrat’s abuses of power.

4. The autocrat becomes more powerful. The unchecked autocrat further consolidates power.

It’s important to understand the Trump administration’s assault on the legal profession in this context. Civil society organizations — represented by their own lawyers, but also law firms large and small — are a significant obstacle to the autocratic faction in the White House. Lawyers are not only part of civil society, they also defend and uphold it. If the lawyers are taken off the field (or persuaded to take themselves off the field), more of civil society is likely to follow. And that means diminished ability to organize, limits on public debate and the free exchange of ideas, and fewer organizations standing up to confront abuses of power.

This is not a partisan concern. Lawyers support civil society organizations across the ideological spectrum. What the Trump administration is doing sets a dangerous precedent that can just as easily be used against organizations on the political right as on the left (and anyone in-between who manages to end up on the wrong side of this president or any future president).

But in some respects, the fact that the Trump administration is focusing so much attention on the legal community is a sign of weakness. The administration doesn’t seem to believe it can actually pass meaningful legislation to advance its agenda despite having a Republican Congress, so it is ignoring Congress altogether whenever it can. There are signs that the American people are not impressed by what the administration is doing (or not) for them. And, importantly, the administration is losing in court.

Rather than cowering, the legal community should recognize the administration’s weaknesses and fight back — forcefully and collectively. We know from experience at home and abroad that fighting back against autocrats works. Again, this is what it looks like:

The legal profession needs to meet the moment, not shrink from it

Law firms should stand up for themselves and for each other. When one firm comes under attack, they should respond as though it’s an attack on them all (much like Williams & Connolly LLP has done by stepping up to represent Perkins Coie, and a few others have done by starting to speak out) — because it is an attack on them all.

Just as important, the legal community (especially those with resources) must continue to stand up for civil society. As part of that, the industry should commit to supporting pro-democracy causes, including not only challenging abuses of power directly, but also defending civil society organizations and leaders who are already under threat and certain to face increasing attack. And they shouldn’t be shy about it. People need to know that someone has their backs when the FBI comes knocking, or they’re handed a congressional subpoena, or the President of the United States publicly defames them — that’s part of how civil society actors stay on the field when faced with authoritarian-style threats.

Of course, some firms are already doing this, including by donating pro bono hours to counter the ongoing abuses of the Trump administration. THANK YOU, please keep at it.

For lawyers and law firms looking for ways to meet the moment, here are a few suggestions:

• Volunteer for an organization like We The Action (including its Public Service Legal Response Center and Immigration Legal Response Center), or the ProJourn project of the Reporters Committee for Freedom of the Press.

• Find pro bono opportunities with your local bar association. (See, e.g., the American Bar Association’s volunteer opportunities webpage, and its state-by-state list of pro bono opportunities.)

• Learn more about the crisis support networks coming online and convince your firm to partner with them.

• Share this post with your networks encouraging them to do the same.

This is not the time for lawyers and law firms to put their heads down — rather, it’s the time for them to raise their hands to help, just as they have done in the past.

Let the telling of this moment in the history of the profession be one of heroism, not capitulation.