Lawyers and law firms committed to the rule of law should be the first (and loudest) critics of the Trump administration's effort to punish and intimidate those who represent the "wrong" clients.
Even though Steve Vladeck has made this special edition open free to everyone, it is the kind of important and powerful writing that makes it worth having a paid subscription.
“What makes us think if we put more language in there, he’s gonna pay any attention to that? He’s on a lawless rampage, and there’s nothing stopping him,” Sen. Peter Welch (D-Vt.) told us. “The big question will be if he faces a judicial order and disregards it.” [from Punchbowl].
Sorry, but way beyond lawyers and the rule of law as we have known it. Fed Judges/Justices terms are subject to "good behavior". Precedents are not controlling.
This is one of the most important pieces that I have read in a long time. It deserves a fuller airing, for instance in the Atlantic or another widely distributed media.
I can't help but think of the analogies to the early Nazi days, when firms of all types capitulated to the Nazis out of fear for their own economic well-being or out of a willingness to feed on the suffering of those companies to who stood their ground. When we put our economic safety ahead of our moral responsibility, we are well on the path to condoning and accepting totalitarianism.
Steve please consider writing a piece on the equally important correlative issue of government attorneys resisting efforts to employ them in enforcing or defending Administration efforts that are unconstitutional and/or illegal. Lawyers both take an oath to uphold the constitution and to not engage in frivolous lawsuits. One day - perhaps very soon - the Supreme Court will hopefully hold that Trump has taken a step too far. When that day comes government lawyers will have an important choice to make.
I'm noting the onset and increase in boldfaced PERJURY to courts/judges by Musk-Trump Regime lawyers. That's in addition to the OPENLY CONTEMPTUOUS "IDIOCY" of: "I'm here representing the government on behalf of this claim, EXCEPT I HAVE ABSOLUTELY ZERO CLUE WHATSOEVER ABOUT ANYTHING I'M HERE FOR!"
It is hard to know whether the openly contemptuous idiocy is a deliberate strategy and a device for conveying disrespect for the Judiciary or is a genuine expression of ignorance. In either event, it is happening frequently and it degrades the rule of law as it may be intended to do. But the Courts and the Bar Associations have the power to protect the lawyers who stand in opposition to these assaults on professional ethics and the rule of law and to sanction the Government political legal hacks who are perpetrating these crimes.It is time that they do so
Yes. That is exactly what it is (illegal and unconstitutional discrimination and retaliation against attorneys based on the content (and even the viewpoint) of their political speech). The controlling legal principles are far from novel. They have long been acknowledged to be the very foundation of our entire Constitution (the foundation of our nation).
Our “speech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.” Snyder v. Phelps, 562 U.S. 443, 452 (2011) (quoting Connick v. Myers, 461 U.S. 138, 145 (1983)) (cleaned up). See also Snyder at 453 (discussing when “[s]peech deals with matters of public concern”).
Our “speech concerning public affairs” is “the essence of self-government,” and it “should be uninhibited, robust, and wide-open,” and it may “include vehement, caustic,” and “unpleasantly sharp attacks on government and public officials.” Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964). Accord Snyder at 452; Rosenblatt v. Baer, 383 U.S. 75, 85 (1966).
In Rosenblatt, SCOTUS emphasized that the public has "a strong interest in debate on public issues [including] about those persons who are in a position significantly to influence the resolution of those issues. Criticism of government is at the very center of the constitutionally protected area of free discussion. Criticism of those responsible for government operations must be free, lest criticism of government itself be penalized."
Besides a first amendment challenge by attorneys that vindictive clearance-stripping violates ability to choose their clients (a form of speech), doesn't this also violate the 6th amendment right to counsel? The Trump admin is exercising a veto power over Jack Smith's (or any other defendant's) choice of attorney in which competent representation requires a security clearance.
Thank you for highlighting Velazquez. It should be a prominent part of every lawyer's education. Sadly, it's not. In addition to the crucial language that you quoted, the Velazquez justices also highlighted the harm to our constitutional system caused by the actions of Trump and his lackeys. They are working to distort the law and undermine the development of analysis of our Constitution. "Restricting” conscientious, capable “attorneys” from “presenting arguments and analyses to the courts distorts the legal system by altering the traditional” (constitutional) “role” of “attorneys.”
As SCOTUS emphasized in Theard v. United States, 354 U.S. 278 (1957), each attorney is "an officer of [a] court, and, like the court itself, an instrument or agency to advance the ends of justice." As our Constitution, itself, emphasizes (Article VI), "all" such "judicial Officers" (judges and attorneys, federal and state) must "support this Constitution" in every action in any court. Every attorney admitted to practice before any state or federal court (and every judge) swears or affirms that he or she will do exactly that.
Another important statement along the same lines is in Konigsberg v. State Bar of Cal., 353 U.S. 252, 273 (1957): it is “important” to “society and the bar itself that lawyers be unintimidated—free to think, speak, and act as members of an Independent Bar.”
In the 1960's an important pair of cases addressed related principles. In Cohen v. Hurley, 366 U.S. 117, 137 (1961), Justices Black and Douglas were joined by Chief Justice Warren in a dissent that emphasized the following:
The “important role” of “lawyers” in “our society” makes it “imperative that [lawyers] not be discriminated against” regarding “freedoms that are designed to protect” Americans “against the tyrannical exertion of governmental power. [Indeed,] the great purposes underlying [such] freedoms [include affording] independence to those who must discharge important public responsibilities. [Lawyers], with responsibilities as great as those placed upon any group in our society, must have that independence.”
The justices dissenting in Cohen were in the majority in Spevack v. Klein, 385 U.S. 511 (1967). The plurality opinion of Justices Douglas, Black and Brennan and Chief Justice Warren emphasized that the foregoing was implicit (“need not be elaborated again”) in Spevack. More importantly, they (and Justice Fortas in a concurring opinion) emphasized that the “Fifth Amendment” and “the Fourteenth” each “extends its protection to lawyers,” and neither may “be watered down” to facilitate violating the rights of lawyers. There is “no room in the” Fifth or Fourteenth Amendments to discriminate based on mere “classifications of people so as to deny [lawyers due process of law]. Lawyers are not excepted” from “person” in the Fifth and Fourteenth Amendments, and judges “can imply no exception.” Justice Fortas, concurring, emphasized that “[t]he special responsibilities [attorneys] assume” as “officer[s] of the court do not carry with them” any “diminution” of attorneys’ “Fifth Amendment rights” (or First Amendment rights and freedoms).
The one thing I would add to this is that the Left got pretty smug about this exact same issue when it was, for instance, the resident advisor at Harvard who lost his job for working on Harvey Weinstein's defense team.
It's a really important principle, and the Trump administration is shattering the norm, which is disgusting. But maybe some folks should have listened to those of us who were saying this was an important norm back when their side was undermining it?
I retired from practicing law more than 15 years ago, but even then “capitalism run amok” was a plague affecting the major law firms, where file churning, creative counting of billable hours, a blind eye towards conflicts of interest, “rainmakers” elevated to positions of power and “producers” relegated to the lower tier, were all on the rise if not already dominant. Even so, I have been astonished of late how easy it has been for Trump, Musk and the DOJ to find lawyers to do there bidding, and that it has primarily been states’ attorneys general and a couple of public service nonprofit firms leading the charge against the new administration’s clearly unlawful actions. Thank you for this piece, and it’s reminder of the role that lawyers should be playing in our society. I am hopeful, but pessimistic, that this view will prevail.
You make a very good point. Every practicing lawyer swore to support our Constitution. But how many of us actually did that in any material sense while we worked? Most of us in private practice were mostly just trying to make some money. Retirement is a great time to fulfill our oaths. That's why I take the time to research and write what I do.
More retired lawyers need to play a much more active role in addressing the misconduct of people in power. The Founders and Framers understood quite well that people need to have financial independence to have sufficient independence to properly support our Constitution. That's why federal judges' salaries and tenure ("during good behaviour") are protected by our Constitution.
That also is why a unanimous SCOTUS (quoting James Madison) in New York Times Co. v. Sullivan, 376 U.S. 254 (1964) emphasized that our “Constitution created a [republican] form of government under which ‘The people, not the government, possess the absolute sovereignty.’ [Our Constitution] dispersed power” in many ways precisely because “of the people’s” extreme “distrust” of people with “power” at “all levels.” In our “Republican Government,” the “censorial power is” necessarily generally “in the people over the Government, and not in the Government over the people.”
All “public men” are essentially “public property,” so our “discussion" of any official's official conduct "cannot be denied and the right” and “duty” of “criticism must not be stifled.” "Those who won our independence believed" that "public discussion is a political duty; and that this should be a fundamental principle of the American government." "It is as much" the "duty" of "the citizen-critic of government" to "criticize as it is the official’s duty to administer."
So all courts must protect all Americans’ “privilege for criticism of official conduct.” All courts must “support” the “privilege for the citizen-critic of government.” Such “privilege is required by the First and Fourteenth Amendments.” In fact, "freedom of expression upon public questions is secured [as a] constitutional safeguard to assure unfettered interchange of ideas [to bring about] political and social changes desired by the people. [ F]ree political discussion [so] that government may be responsive to the will of the people and that changes may be obtained by lawful means[ is] essential to the security of the Republic [and] is a fundamental principle of our constitutional system."
"There has been a rich and robust debate about whether/when lawyers should be criticized or even vilified for representing unpopular clients," immediately bringing to mind William Kunstler. We need many lawyers with his courage and integrity.
Divide and conquer. We must not allow ourselves to be distracted from who our real opponent is. Musk
Even though Steve Vladeck has made this special edition open free to everyone, it is the kind of important and powerful writing that makes it worth having a paid subscription.
Thank you
This article made me purchase a subscription. It's so important to support this work right now.
Extremely well said
Will Covington challenge the order?
“What makes us think if we put more language in there, he’s gonna pay any attention to that? He’s on a lawless rampage, and there’s nothing stopping him,” Sen. Peter Welch (D-Vt.) told us. “The big question will be if he faces a judicial order and disregards it.” [from Punchbowl].
Sorry, but way beyond lawyers and the rule of law as we have known it. Fed Judges/Justices terms are subject to "good behavior". Precedents are not controlling.
You gotta admit, Steve, The Trump Crew got this pretty well gamed out. Not sure the ABA is coming to the rescue. Nor SCOTUS.
"When you're in a war, and you've got all the power, they let you grab em by the yingyang, and there's nothing they can do about it".
Wait til Elon begins impeaching judges.
Elections have consequesces.
This is one of the most important pieces that I have read in a long time. It deserves a fuller airing, for instance in the Atlantic or another widely distributed media.
I can't help but think of the analogies to the early Nazi days, when firms of all types capitulated to the Nazis out of fear for their own economic well-being or out of a willingness to feed on the suffering of those companies to who stood their ground. When we put our economic safety ahead of our moral responsibility, we are well on the path to condoning and accepting totalitarianism.
Steve please consider writing a piece on the equally important correlative issue of government attorneys resisting efforts to employ them in enforcing or defending Administration efforts that are unconstitutional and/or illegal. Lawyers both take an oath to uphold the constitution and to not engage in frivolous lawsuits. One day - perhaps very soon - the Supreme Court will hopefully hold that Trump has taken a step too far. When that day comes government lawyers will have an important choice to make.
I'm noting the onset and increase in boldfaced PERJURY to courts/judges by Musk-Trump Regime lawyers. That's in addition to the OPENLY CONTEMPTUOUS "IDIOCY" of: "I'm here representing the government on behalf of this claim, EXCEPT I HAVE ABSOLUTELY ZERO CLUE WHATSOEVER ABOUT ANYTHING I'M HERE FOR!"
It is hard to know whether the openly contemptuous idiocy is a deliberate strategy and a device for conveying disrespect for the Judiciary or is a genuine expression of ignorance. In either event, it is happening frequently and it degrades the rule of law as it may be intended to do. But the Courts and the Bar Associations have the power to protect the lawyers who stand in opposition to these assaults on professional ethics and the rule of law and to sanction the Government political legal hacks who are perpetrating these crimes.It is time that they do so
Is there any way to legally push back on this? Seems very similar to the government trying to stifle free speech.
Yes. That is exactly what it is (illegal and unconstitutional discrimination and retaliation against attorneys based on the content (and even the viewpoint) of their political speech). The controlling legal principles are far from novel. They have long been acknowledged to be the very foundation of our entire Constitution (the foundation of our nation).
Our “speech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.” Snyder v. Phelps, 562 U.S. 443, 452 (2011) (quoting Connick v. Myers, 461 U.S. 138, 145 (1983)) (cleaned up). See also Snyder at 453 (discussing when “[s]peech deals with matters of public concern”).
Our “speech concerning public affairs” is “the essence of self-government,” and it “should be uninhibited, robust, and wide-open,” and it may “include vehement, caustic,” and “unpleasantly sharp attacks on government and public officials.” Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964). Accord Snyder at 452; Rosenblatt v. Baer, 383 U.S. 75, 85 (1966).
In Rosenblatt, SCOTUS emphasized that the public has "a strong interest in debate on public issues [including] about those persons who are in a position significantly to influence the resolution of those issues. Criticism of government is at the very center of the constitutionally protected area of free discussion. Criticism of those responsible for government operations must be free, lest criticism of government itself be penalized."
Besides a first amendment challenge by attorneys that vindictive clearance-stripping violates ability to choose their clients (a form of speech), doesn't this also violate the 6th amendment right to counsel? The Trump admin is exercising a veto power over Jack Smith's (or any other defendant's) choice of attorney in which competent representation requires a security clearance.
Is it plausible the security clearance revocation arose because some Project 2025 went to see Oppenheimer (and identified RDJ as the hero)?
Seems like a good time for Jack Smith's 2nd report to hit the media while there still is one.
Thank you for highlighting Velazquez. It should be a prominent part of every lawyer's education. Sadly, it's not. In addition to the crucial language that you quoted, the Velazquez justices also highlighted the harm to our constitutional system caused by the actions of Trump and his lackeys. They are working to distort the law and undermine the development of analysis of our Constitution. "Restricting” conscientious, capable “attorneys” from “presenting arguments and analyses to the courts distorts the legal system by altering the traditional” (constitutional) “role” of “attorneys.”
As SCOTUS emphasized in Theard v. United States, 354 U.S. 278 (1957), each attorney is "an officer of [a] court, and, like the court itself, an instrument or agency to advance the ends of justice." As our Constitution, itself, emphasizes (Article VI), "all" such "judicial Officers" (judges and attorneys, federal and state) must "support this Constitution" in every action in any court. Every attorney admitted to practice before any state or federal court (and every judge) swears or affirms that he or she will do exactly that.
Another important statement along the same lines is in Konigsberg v. State Bar of Cal., 353 U.S. 252, 273 (1957): it is “important” to “society and the bar itself that lawyers be unintimidated—free to think, speak, and act as members of an Independent Bar.”
In the 1960's an important pair of cases addressed related principles. In Cohen v. Hurley, 366 U.S. 117, 137 (1961), Justices Black and Douglas were joined by Chief Justice Warren in a dissent that emphasized the following:
The “important role” of “lawyers” in “our society” makes it “imperative that [lawyers] not be discriminated against” regarding “freedoms that are designed to protect” Americans “against the tyrannical exertion of governmental power. [Indeed,] the great purposes underlying [such] freedoms [include affording] independence to those who must discharge important public responsibilities. [Lawyers], with responsibilities as great as those placed upon any group in our society, must have that independence.”
The justices dissenting in Cohen were in the majority in Spevack v. Klein, 385 U.S. 511 (1967). The plurality opinion of Justices Douglas, Black and Brennan and Chief Justice Warren emphasized that the foregoing was implicit (“need not be elaborated again”) in Spevack. More importantly, they (and Justice Fortas in a concurring opinion) emphasized that the “Fifth Amendment” and “the Fourteenth” each “extends its protection to lawyers,” and neither may “be watered down” to facilitate violating the rights of lawyers. There is “no room in the” Fifth or Fourteenth Amendments to discriminate based on mere “classifications of people so as to deny [lawyers due process of law]. Lawyers are not excepted” from “person” in the Fifth and Fourteenth Amendments, and judges “can imply no exception.” Justice Fortas, concurring, emphasized that “[t]he special responsibilities [attorneys] assume” as “officer[s] of the court do not carry with them” any “diminution” of attorneys’ “Fifth Amendment rights” (or First Amendment rights and freedoms).
The one thing I would add to this is that the Left got pretty smug about this exact same issue when it was, for instance, the resident advisor at Harvard who lost his job for working on Harvey Weinstein's defense team.
It's a really important principle, and the Trump administration is shattering the norm, which is disgusting. But maybe some folks should have listened to those of us who were saying this was an important norm back when their side was undermining it?
I retired from practicing law more than 15 years ago, but even then “capitalism run amok” was a plague affecting the major law firms, where file churning, creative counting of billable hours, a blind eye towards conflicts of interest, “rainmakers” elevated to positions of power and “producers” relegated to the lower tier, were all on the rise if not already dominant. Even so, I have been astonished of late how easy it has been for Trump, Musk and the DOJ to find lawyers to do there bidding, and that it has primarily been states’ attorneys general and a couple of public service nonprofit firms leading the charge against the new administration’s clearly unlawful actions. Thank you for this piece, and it’s reminder of the role that lawyers should be playing in our society. I am hopeful, but pessimistic, that this view will prevail.
You make a very good point. Every practicing lawyer swore to support our Constitution. But how many of us actually did that in any material sense while we worked? Most of us in private practice were mostly just trying to make some money. Retirement is a great time to fulfill our oaths. That's why I take the time to research and write what I do.
More retired lawyers need to play a much more active role in addressing the misconduct of people in power. The Founders and Framers understood quite well that people need to have financial independence to have sufficient independence to properly support our Constitution. That's why federal judges' salaries and tenure ("during good behaviour") are protected by our Constitution.
That also is why a unanimous SCOTUS (quoting James Madison) in New York Times Co. v. Sullivan, 376 U.S. 254 (1964) emphasized that our “Constitution created a [republican] form of government under which ‘The people, not the government, possess the absolute sovereignty.’ [Our Constitution] dispersed power” in many ways precisely because “of the people’s” extreme “distrust” of people with “power” at “all levels.” In our “Republican Government,” the “censorial power is” necessarily generally “in the people over the Government, and not in the Government over the people.”
All “public men” are essentially “public property,” so our “discussion" of any official's official conduct "cannot be denied and the right” and “duty” of “criticism must not be stifled.” "Those who won our independence believed" that "public discussion is a political duty; and that this should be a fundamental principle of the American government." "It is as much" the "duty" of "the citizen-critic of government" to "criticize as it is the official’s duty to administer."
So all courts must protect all Americans’ “privilege for criticism of official conduct.” All courts must “support” the “privilege for the citizen-critic of government.” Such “privilege is required by the First and Fourteenth Amendments.” In fact, "freedom of expression upon public questions is secured [as a] constitutional safeguard to assure unfettered interchange of ideas [to bring about] political and social changes desired by the people. [ F]ree political discussion [so] that government may be responsive to the will of the people and that changes may be obtained by lawful means[ is] essential to the security of the Republic [and] is a fundamental principle of our constitutional system."
"There has been a rich and robust debate about whether/when lawyers should be criticized or even vilified for representing unpopular clients," immediately bringing to mind William Kunstler. We need many lawyers with his courage and integrity.
Surely Eds Martin qualifies for censure or disbarment by the DC Bar. Who's writing that letter to the Bar?