In a 2020 article, Dean Cynthia Fountaine documents how Germany’s Nazi regime incrementally gained control of the legal system and the role legal professionals played in the process. Following an arson the regime labeled an act of terrorism in 1933, President von Hindenburg declared a “national state of emergency” under a constitutional provision that permitted the government to strip all individual rights while expanding the State’s police power. Within two months, tens of thousands were arrested and detained without judicial review. Then, the legislature passed an act enabling Chancellor Hitler “to decree law” without the consent of parliament and unbound by the Constitution. Hitler then promoted lawyer Hans Frank, who had long represented members of the Nazi party in criminal tribunals, to positions where he could reshape the German legal system through two methods: First, “purging” the “politically unreliable” (such as Jewish, Social Democrat, and women lawyers) — removing them from roles such as judge, prosecutor, and professor, disbarring them, and prohibiting their future legal employment. And second, “coordinating” — shifting the law from an independent profession to one with “unanimity of aim,” with loyalty oaths and obligations to the State over one’s clients. Eventually, the death penalty’s application was broadened significantly, while the right to counsel became discretionary; attorneys who represented certain clients or made arguments that were interpreted as criticizing the State could be subject to disbarment or criminal sanctions; and judges who failed to discern how Hitler would rule would be removed. Only one prosecutor resigned.
In this Blog post, we discuss the role of lawyers in preventing rising authoritarianism under the current Presidential Administration. The Model Rules of Professional Conduct make clear in their preamble that lawyers have professional obligations to uphold the rule of law. But the moral call we make here may go beyond what the rules require, at least under common, thin, conceptions of what the rule of law means. Simply following the law “will sometimes involve the lawyer in immoral conduct.” Legal scholars have debated the moral defensibility of the “lawyer’s amoral ethical role” in society; lawyers share positive law collectively, while individually held moral concerns are seemingly subject to much wider disagreement. But a strict legal-moral binary is a normative, moral interpretation of the content of the law. Professor Richard Wasserstrom argued that legal amorality at the institutional level is justified only when legal institutions merit an “enormous degree of trust and confidence,” but unjust “rules and practices” increasingly call into question disengagement from moral considerations. We discuss authoritarianism here, rather than “rule of law” — a term used by others in describing similar issues — to elide thorny scholarly disputes about the extent to which the rule of law alone precludes authoritarianism and to challenge the legal-moral binary.
Legal professionals have good reason to stand together against shifts towards authoritarianism. In arguing as much, we will rest on other writers’ laurels. Journalists, activists, and scholars have expertly documented the various ways in which the administration’s actions display the trend toward authoritarianism. Thus, our focus is not on demonstrating that the current executive is degrading our democratic norms, engaging in viewpoint discrimination, exercising unprecedented power, and leveraging the state to the benefit of his personal interests or those of his cronies (and against his personal rivals). Rather, our focus is to report on some of the legal profession’s initial responses and to explain why lawyers — government, private, and nonprofit alike — should be particularly sensitive to the costs of not resisting these shifts.
I. Institutional and Individual Responses to the Current Administration
Anyone who follows the news is aware that the current administration is testing the boundaries of the law, in part through the use of threats and coercion to control legal actors. The government has made prosecutorial decisions tainted by political considerations, while executive orders target specific lawyers and law firms because of their legal work. A “grassroots group of law students” began tracking how law firms have reacted. A March presidential memorandum urged the Attorney General to “seek sanctions against attorneys and law firms who engage in frivolous, unreasonable, and vexatious litigation,” with a specific focus on lawyers who represent immigrants. This memo was released shortly after the administration deported hundreds to a “notorious maximum-security prison” in El Salvador without due process. When this action was challenged in court, the judge’s attempt to gather facts and ensure the observance of court orders apparently triggered the President’s request “for the judge to be impeached.” Legal scholars have begun analyzing the potential legal impact of the administration’s actions and sounding an alarm for the legal community. Inundated with increasingly quotidian attacks from the executive branch, lawyers must determine — quickly — how to respond.
Many have publicly opposed the administration’s legal agenda, some in high-profile resignations and other communications. Following the issuance of the frivolous litigation memorandum, twenty-two civil rights organizations called on all members of the legal profession “to speak out against this dangerous assault on the legal profession and the rule of law.” Hundreds of lawyers and law firms have signed a bipartisan letter asking U.S. Attorney General Pam Bondi “as the lawyer . . . entrusted with the representation of the United States . . . to protect the legal profession.” Seventy-nine law school deans signed a letter condemning the punishment of lawyers and firms for “zealous lawful and ethical advocacy.” The State Bar of Michigan committed to the necessity of an independent judiciary as a “cornerstone” of the nation’s democracy. Perkins Coie “reluctantly” filed a complaint against the executive order threatening the firm’s ability to continue providing legal services. Numerous States and hundreds of law professors joined Perkins Coie as Amici in a lawsuit challenging the executive order singling the firm out for punishment. Keker, Van Nest & Peters decried the attack on lawyers and urged law firms to support Perkins Coie as Amici. Over five hundred firms, led by Munger, Tolles, & Olson and Eimer Stahl, as well as hundreds of former state and federal judges and others, have filed amicus briefs. Paul, Weiss alumni rebuked the firm’s “surrender.” And an open letter invites law firm associates to join the American Bar Association in rejecting attacks on the law and legal professionals. These nonexhaustive examples of resistance have blossomed during the writing of this Blog post.
But only some feel compelled to speak out against what we call shifts to authoritarianism. Paul, Weiss was the first big law firm to join other “major industry leaders [in] folding when threatened,” dedicating millions in pro bono work to support the administration’s projects. Skadden sought out a deal with the administration preemptively; other firms have quickly made their own deals. Some government attorneys are hard at work both carrying out and defending executive orders. House Speaker Mike Johnson, himself a lawyer, suggested that Congress may not only impeach federal judges but also defund and/or eliminate federal courts. After issuing a statement supporting the rule of law, the American Bar Association suspended its DEI mandate for law schools pursuant to an executive order attacking DEI initiatives. This was still not enough to stop the DOJ from barring attorneys from attending ABA events.
There are many possible explanations for legal professionals’ capitulation, silence, or preemptive compliance. Some lawyers may believe that at least some of the administration’s policies are legally sound. Firms may make financial calculations, concluding that these deals are better for business or help to avoid irreparable harm to client relationships. Individual lawyers may weigh the potential financial cost or career risks heavily, such as concerns about seemingly punitive reassignments at the Federal Department of Justice. Some individuals may feel physically unsafe. For example, “political pressure” and “violent threats” against federal judges “have been rising since the 2020 presidential election.” But judges do not appear to be ready to bow under that pressure. The Federal Judges Association issued a press release stating that: “Any erosion in the independence of the judiciary is a threat to our Constitution and to democratic rule of law.” The federal judiciary has also launched a task force on security and independence. Insofar as the legal profession is driven by fear and the desire for safety, it should look to the experiences of other communities for lessons. Marginalized communities that have already been living under a hostile regime know well that the “illusion of some safety” cannot justify the decision to appease.
II. Authoritarianism and Lawyers
Regardless of why the legal world is reacting in such a mixed pattern to these developments, it is worth picking apart what is so troubling about that pattern. There is a special danger with lawyers choosing to obey the executive under these conditions, even when not necessary. That is because authoritarians rely on both consent and the veneer of legalism in order to fully realize authoritarianism.
The fact that government relies on acquiescence to be governed is hard to dispute — following Hannah Arendt, obedience to a regime is support of that regime. Commentators have rightly found renewed salience in what Professor Timothy Snyder has called “anticipatory obedience.” He writes: “Most of the power of authoritarianism is freely given. . . . [I]ndividuals think ahead about what a more repressive government will want, and then offer themselves without being asked.” In recent months, this term has been applied to overly acquiescent and uncoerced conduct from schools, the news media, and hospitals. But you can extend the force of this a touch further, to different practices. Namely: the choice to kowtow rather than defend yourself and your practices when you could. This President has personally reached into the inner functioning of municipalities, collegiate sports associations, universities, possibly preschools, and — pertinently here — private law firms. To allow him to do so without at least holding him to the litigatory costs of those actions is a form of consent with the potential to be just as nefarious as anticipatory obedience. If norms just are what actors do, then institutions that allow the executive to act as king allow the government to turn monarchic. Surely, this doesn’t mean actors have to fight every battle presented to them by the administration. But it does mean that the choice not to fight has consequences for a country on the road to authoritarianism.
And the stakes of these choices are especially weighty for lawyers. Humanitarian lawyer-academics Kieran McEvoy, Louise Mallinder, and Anna Bryson aptly note in their study of lawyers under authoritarianism and transition:
“In reality, comparatively few authoritarian states completely abandon their (ostensible) commitment to some variant of the rule of law. Indeed, in many instances law becomes the delivery mechanism for authoritarian impulses. The role of legality in enabling and legitimating repressive political projects can be seen widely, such as when giving prominence to constitutions, holding political trials, expanding emergency laws, and engaging in overtly racist social and political engineering through law . . . .”
Although McEvoy, Mallinder, and Bryson were particularly interested in the choice to participate in inherently unfair legal proceedings, the empirical fact of the law’s enabling role still has theoretical significance for our situation today. If the imprimatur of law can carry legitimizing force, then the actions of lawyers and the legal system can easily ratify — in the eyes of the whole polity — the erosion of democratic norms merely through their consent. Professor Maciej Kisilowski, who has previously raised forceful concerns about authoritarianism in Poland, extensively studied how Polish lawyers in the mid-twentieth century worked to promote legal theories that served to legitimate the authoritarian status quo. They “sold” legalism to the regime while selling the regime to the public.
And so we arrive at the picture: Lawyers are the intermediaries between the kind of control an authoritarian regime wants and what kinds of controls the public sees as legitimate to consent to. By acquiescing to the President, even if purely for self-preservation, lawyers may inadvertently play a special role in selling, ratifying, and ossifying changes in our legal norms and democratic institutions.
Conclusion
Lawyer Marc Elias, who was individually named in the March memorandum, had previously published a statement urging all readers to consider that through silence: “You are ignoring Martin Niemöller’s message. It is you that Martin Luther King Jr. was condemning.” The point is clear: We are at our weakest when alone. And standing up for each other is the only cure. In a call to universities to stand together and up against “creeping authoritarianism,” Professor Charlie Eaton points out that “[a] key authoritarian strategy is to single out prominent individuals or institutions for repression so that others, afraid, forgo legitimate criticism . . . .” Indeed, in an email to the firm, Paul, Weiss partner Brad Karp referred to the executive’s threats as an “existential crisis” for the firm. But recall Perkins Coie retaining Williams & Connolly; recall “conservative star” litigator Paul Clement stepping up to bat for WilmerHale against the administration’s threats. Capitulating instead of fighting might seem the only sensible option, if you are standing alone. But standing together, the American legal profession has a chance of breaking the historical patterns we have discussed above — a chance at resisting authoritarian co-optation.
The post The Cost of Capitulation appeared first on Harvard Law Review.