Lawlessness and Trump’s lawyers

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Events since Jan. 20 have called into question the ability of attorneys to safeguard the rule of law.

President Donald Trump has sought retribution against law firms that previously opposed him or represented the Democratic National Committee. He has called for the impeachment of federal judges who issued orders against him, labeling one of them a “radical left judge” and a “lunatic.” He has commenced an investigation into law firms that engage in diversity, equity and inclusion initiatives.

Most recently, he called upon Department of Justice lawyers to refer for discipline any lawyer who opposes a Trump policy on grounds the DOJ alone deems frivolous or unfounded.

Trump has not acted alone in any of these extraordinary endeavors; in each instance, he has been enabled by federal lawyers working as White House counsel, in the Department of Justice, at the Department of Homeland Security, or at the Equal Employment Opportunity Commission.

In an unprecedented speech to the DOJ, Trump made clear his view that federal government lawyers represent his interests rather than the interests of the American public. By contrast, Trump detests lawyers who oppose him, viewing them as obstructionists and perhaps seditionists.

Even nonpartisans among us should perceive Trump’s statements and actions as a serious threat to the role of lawyers in the United States. Robust advocacy allows judges and juries to make informed decisions based on a fully developed factual record. John Adams famously defended British soldiers accused of murdering colonists on the steps of the Old State House in March 1770 — contrary to the political interests of his cousin, Samuel Adams, who rallied sentiment against British presence in Boston. In his diaries, President Adams explained the reason he took on the unpopular “Boston Massacre” defense: “Persons whose Lives were at Stake ought to have the Council they preferred … and that every Lawyer must hold himself responsible not only to his Country, but to the highest and most infallible of all Trybunals for the Part he should Act.”

The current spate of government lawyers who counsel Trump would be wise to take note of the fates of those lawyers who advised him during his first administration.

When Trump seeks to punish law firms that have opposed him, he calls into question this right to counsel. The American Bar Association has recognized that “[l]egal representation should not be denied to people … whose cause is controversial or the subject of popular disapproval.”

Americans elected Donald Trump knowing that he intended to be a disruptor of government. That is fair. But lawyers representing our “Disruptor in Chief ” must take caution that they owe allegiance to the bar and to the judicial system as well as to the president.

The current spate of government lawyers who counsel Trump would be wise to take note of the fates of those lawyers who advised him during his first administration. Rudolph Giuliani was disbarred for filing frivolous legal complaints alleging fraud in the 2020 election. John Eastman was disbarred for assisting Trump with the fraudulent elector scheme.

Trump does not hold a law license, nor does he seem to care about the fate of his advisors who do. But Trump’s lawyers should care deeply. Federal government attorneys hold their law licenses at the state level, and they can be disciplined by that state even if their conduct occurs out of state. If federal lawyers perceive their “client” as the president — a proposition that might fairly be questioned even by those who believe in the theory of a unitary executive — they still owe duties to the court system, to their adversary, and to the public. Under attorney rules of professional conduct, sometimes those duties take precedence over duties to a client.

Making false statements to a tribunal (Rule 3.3); making frivolous claims or asserting frivolous defenses (Rule 3.1); disobeying court orders (Rule 3.4); engaging in conduct that discriminates on the basis of race, national origin or gender identity (Rule 4.4); making statements that recklessly disparage the integrity of a judge (Rule 8.2); and punishing lawyers who oppose the government (Rule 8.4(d)) are just some of the ethical minefields federal lawyers may encounter if they misperceive that their professional loyalties lie solely with the president.

Since the time of our founding, the task of erecting and maintaining guardrails around our fragile democratic experiment has rested primarily with lawyers. The profession owes a duty to investigate and discipline attorneys who attempt to dismantle those guardrails in a manner that violates their ethical duties.

The matter is urgent, and the moment is now. If the bar remains silent about such transgressions, the independence of the profession is at risk.

R. Michael Cassidy is a professor at Boston College Law School and chair of the Board of Bar Overseers. The views expressed above do not represent an official position of the BBO.