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As a young lawyer years ago, I often heard – along with some good (and bad) “lawyer jokes” – the frequently cited, and nearly always misunderstood, recommendation of Shakespeare’s anarchist: “The first thing to do, is kill all the lawyers.” Now that I’m an old lawyer, I don’t hear it so much. In my opinion, that’s because in this country we have, figuratively speaking of course, already killed the lawyers.
To say that lawyers are figuratively “dead” in this country is somewhat a provocation along the lines of Nietzsche’s “God is dead.” But it’s not a stretch to say that especially in the “Age of Trump,” both in our community and in the nation at large, lawyers have become much more “irrelevant,” except to the extent they promote “business as usual.”
The days of believing in the law’s ability to improve the lives of ordinary Americans has largely disappeared; we have fewer and fewer applicants to law school; so called “tort reforms” in all their manifestations (limits on claims and awards, grants of “immunity” to big businesses, mandatory arbitration, “the preemption doctrine,”) have essentially taken away much of our citizens’ rights to have their peers adjudicate the facts of their criminal and civil disputes (sometimes euphemistically called “the right to trial by jury”). According to at least one federal Judge quoted below, the judiciary itself has lost much of its power and independence (or willingly given it up), without much protest. Two different lawyers in the community commented to me within the last few weeks that many lawyers in the area are having a tough time economically. It’s no wonder. Legal work for all but the most privileged businesses, or most “injured” or “damaged” individuals (as in “financially lucrative cases”), has been on the decline for years. But these are symptoms of a much larger problem for the “law.”
Society has lost respect not only for the law, but for the whole legal system. And I’m not talking just about the ordinary “woman in the street.” I’m talking about many government officials and employees as well, and many lawyers with whom I have worked over the years. Most striking of all is Presidential Candidate Donald Trump himself, who appears to gain (not lose) support when he questions the fairness of federal Judge Gonzalo P. Curiel, for his ruling in one of the “Trump University” cases based on his “Mexican” Heritage. This country’s scandal of mass incarceration of drug offenders (disproportionally minorities) and other “law breakers” masks the growing disrespect for the legal justice system engendered by the knowledge that consequences for breaking the law and unequal access to justice are often functions of who you are, or how much you can afford to pay a celebrity lawyer. Why should we expect the under-privileged drug offender to respect the law or the legal system when the legal system pays no respect to her? And instead of talking “scandal,” both Presidential candidates vaguely urge “criminal justice reform.” We’ve had a lot of that on the civil side over the last decade. As Dr. Phil might ask, “How’s that working for you?”
The growing disrespect for the law parallels the “Age of Trump,” although it started long before Trump’s announcement for the Presidency. He merely gave it his name, his “Brand.” We should all have seen it coming, locally and nationally, at least since 9/11 and the War on Terror. For some of us older folks, who lived through the John F. Kennedy assassination (and inability of our government to solve the case to the satisfaction of most citizens); the Vietnam War; Watergate; the Iran Contra Affair; and scores of other scandals in and out of government, it seems that our citizens’ loss of respect for the law has been quietly developing our whole adult life.
In its latest manifestation, Federal Judge Jed S. Rakoff, in a recent review of Yale Law Professor Owen Fiss’s new book, “A War Like No Other: The Constitution in a Time of Terror,” perceptively explains our judiciary’s chosen reluctance to “interfere” (i.e., exert independence from the Executive Branch of government) with the waging of the “war on terror” under Presidents Bush and Obama.( Jed S. Rakoff, ‘Terror’ and Everybody’s Rights, The New York Review, September 29, 2016)
Under President Bush, our government carried out “torture” clearly outlawed since the ratification of the United States in 1994 of the United Nations Convention Against Torture, and §2340A of the Federal Criminal Code, which was enacted along with it. It has continued, under Obama, “extraordinary rendition” (knowingly allowing other countries to engage in “torture” as our proxy). Our CIA continues to carry out a legally problematic “drone” assassination policy; all without any meaningful review by the Courts.
According to Judge Rakoff, it’s not that the issues have not come before the Courts; it’s that the Court has found ways of avoiding them. The Second Circuit, in 2009, dismissed victims of “extraordinary rendition” as not presenting a “legitimate” claim (sometimes referred to as a frivolous lawsuit). The Ninth Circuit, in 2010, barred a legal challenge to the practice based on a “prohibition against exposing state secrets.”
Chief Justice John Roberts, writing for the majority in the 2010 case of Holder v. Humanitarian Law Project, interpreted §2339B of the Federal Criminal Code in such as way as to harken back to the “Alien and Sedition Acts” of 1798; and the high court’s highly praised decision in Boumediene v. Bush, re-iterating the nearly 800 year old right of “Habeas Corpus,” has been great in “theory,” but largely ineffectual in practice, as nearly all petitions in support of uncharged and unadjudicated Guantanamo detainees have been denied in the lower courts. Judge Rakoff refers to this new category of prisoners, unknown to our country’s history, as the “forever prisoners.”
I can’t speak for all attorneys, but as for me – the son of a World War II POW – I think it ironic, to say the least, that the chief lawyer of the now famous “Torture Memos, ” John Yoo, did not go down in history as the worst example of a lawyer “telling a client what they wanted to hear” in opining that “waterboarding” (a technique mastered by all good torturers at least since the Spanish Inquisition) was in fact not torture at all, but merely “Enhanced Interrogation”: a creative description of what we used to call “legalese.” John Yoo did not go to jail for this advice. He did not get disbarred. He has not even been rebuked by anyone in authority for “frivolous advice.” Instead, he has since landed a job as a “Professor of Law” at the prestigious University of California at Berkeley School of Law. Kind of like what happened to the notorious Roy Cohn who, after being accused in the Army-McCarthy hearings of 1954, inter alia, of doctoring evidence on behalf of soon-to-be disgraced Senator Joseph McCarthy, went on to a lucrative practice of law, whose clients included Donald Trump, as well as a number of Mafia figures, such as Ton Salerno, Carmine Galante, and John Gotti. You really cannot make this stuff up. It’s History. Yet we expect every ordinary American to respect the law, even when lawyers such as Yoo actively and proudly recommend what even our Founders found so “deplorable,” (i.e., torture), so as to cause them to incorporate prohibitions against it for citizens in at least two separate Amendments to the United States Constitution: The Fifth Amendment prohibition against compelled self-incrimination, and the Eighth Amendment prohibition against cruel and unusual punishment.
In the “Age of Trump,” the Donald gets away with running his campaign in part on a promise to re-institute “torture” as a legitimate weapon in the ongoing War On Terror, without bothering to comment on its legality. He also intimates that he will violate the First Amendment by barring from the United States adherents of a particular religion (Muslims); and his companion shill Rudy Giuliani (once a U.S. Prosecutor and lawyer who should know better) lies that “ in war, everything is legal.” That is not what I learned in law school. But never mind the facts. When you are suspicious of the whole system, one assertion about the law is as true (or false) to many citizens as any others.
I haven’t heard many lawyers renounce Trump and his candidacy for his demonstrated lack of respect for the “rule of law” or the Constitution, which, by law, the President is elected to defend. Nor have we heard much from lawyers collectively, through their bar associations, bar organizations, or the like, renouncing the idea of a Trump Presidency on those same grounds. Pardon us, Senator Robert C. Byrd, while you roll over in your grave.
In our self-satisfied glow of “exceptionalism,” we don’t think we even need to renounce perceived threats to the Constitution. We say “It Can’t Happen Here,” echoing, but not reading, Sinclair Lewis. And don’t expect us to try to learn anything from foreign Human Rights lawyers who work in failed or authoritarian states, and daily risk their careers and lives in service of the “rule of law.” “Disrespect for the law” is for them a matter of life and death – for themselves and their clients. But you don’t have to be a foreign Human Rights Lawyer to speak out, denounce, and take action against a clear attack to one of our supposed “core values,” adherence to the “rule of law.”
A case in point — the two year struggle (2007-2009) that many lawyers in Pakistan (Pakistan?) engaged in with the then administration of President Pervez Musharraf, who unconstitutionally suspended the Chief Justice of the Pakistan’s Supreme Court for certain rulings, including finding Pakistan’s intelligence agency complicit in approximately 400 “forced disappearances” of citizens without due process of law. Said “disappearances” conveniently (for the Government) included not only “terror suspects,” but “human rights” activists as well. “The Lawyers’ Movement,” also called the “Movement for the Restoration of the Judiciary,” or “Black Coat Protests,” lasted for approximately 2 years, before the Chief Justice was reinstated.
During those two years, many lawyers were injured or killed; hundreds were arrested, mostly as a result of engaging in “non-violent” civil disobedience. As recently as August 9, 2016, 72 individuals, mostly lawyers, were killed in a suicide bombing in Pakistan, when a bomb went off during a memorial service attended by approximately 200 lawyers to grieve the murder of Bilal Anwar Kasi, president of the Balochistan Bar Association. Terrorist groups have claimed responsibility. Others have questioned this conclusion, noting that the Pakistani army has been repeatedly accused of human rights violations in the area by international rights groups.
I know that pundits will claim that the way the “rule of law” is broken in Pakistan in no way compares to our own country. No need for our lawyers to take to the streets, at least not yet. But it does illustrate the high stakes to any society, whose justice system, its “rule of law,” may evaporate into chaos (or stalemate), and include the real, not just figurative, killing of lawyers. I write to pose the question to my colleagues at the Bar: Do we not have an ethical obligation, as lawyers, individually and collectively, to at least speak out publically against Trump, to publically renounce Trump as “qualified’ to be President based on his comments on the constitution and the rule of law alone?
The one and maybe only thing Pakistani citizens had during the “Black Coat Protests” that our citizens do not share in determining whether or not to vote for Trump is the knowledge that their lawyers took, or would take, vigorous and robust action (including civil disobedience under threat of death or injury, if necessary) to protect their constitution.
I fear we can’t count on the same vigorous and robust action from our lawyers should Trump become President and the constitution threatened. We too (like other ordinary citizens) are narrowly focused on the diminishing possibilities of our profession, and our jobs. But if you are an ordinary lawyer like me who thinks it has been hard to get “justice” for other ordinary Americans leading up to the “Age of Trump,” you should be able to imagine how much worse it would be under a Trump Presidency. Maybe you can even imagine the Inauguration Address. It would probably include something like this:
“We are at war. I can keep you safe, but only if you get rid of all those frivolous lawsuits, like that one against my own University, before that Judge, you know, the Mexican one, Gonzales Curial (sic)”
For now, I urge all lawyers, as lawyers, collectively and individually, to renounce Trump as a Presidential candidate, on the basis of his lack of qualification to defend the United States Constitution, and the Rule of Law. It’s the least we can do, as lawyers, in honor of our late great Senator, Lawyer, and Constitutionalist, Robert C. Byrd. If not for him, do it with the knowledge that its “5 o’clock somewhere,” and that they are already killing the lawyers. Otherwise, I fear we risk repeating history when lawyers and judges were co-opted by power and charisma, and led their society’s descent into tyranny.