Trump’s lawyers and the rule of law: Part 1

The president is playing with fire and his lawyers are fanning the flames. In the end, the nation will suffer the burns.

“The first thing we do, let’s kill all the lawyers.”Dick the Butcher, in Shakespeare’s Henry VI (1591)

Shakespeare’s famous line has drawn conflicting interpretations. To some, it’s a 16th century lawyer joke. But to others focused on the anarchist who spoke them, it’s a nod to the role of law in underpinning a civilized society. Upon admission to the bar, the lawyers surrounding Donald Trump swore fealty to the US Constitution. When they assumed their current duties on behalf of all Americans, they reaffirmed that oath. When Trump attacks the rule of law, his advisers with legal degrees have a special responsibility to speak up. Whatever they’re saying to Trump privately, their public defense of his indefensible assault on the judiciary is no joke, and they know it.

Pattern and practice of misbehavior

A year ago, Trump went after an American-born federal judge of Mexican heritage who had ruled against him in the Trump University case. Previewing the way congressional Republicans would place party above country, Sen. Mitch McConnell (R-KY)—who received his law degree from the University of Kentucky—assured everyone that, as president, Trump would not endanger the rule of law: “He’ll have a White House counsel. There will be others who point out there’s certain things you can do and you can’t do.”

So where are those people now? They’ve become his enablers. Three months ago, when a federal judge blocked Trump’s first unconstitutional travel ban, he launched an early-morning attack. The target, the Honorable James L. Robart, was a respected George W. Bush appointee whom the Senate confirmed unanimously.

Rather than condemn Trump’s efforts to undermine the judicial branch, several attorneys closest to Trump took to the airwaves in his defense. On Feb. 5, 2017, George Stephanopoulos asked Vice President Mike Pence (JD, Indiana ’86), “[I]s it right for the president to say, ‘so-called judge’? . . . Doesn’t that undermine the separation of powers in the Constitution?”

“Well,” Pence replied, “I don’t think it does. I think the American people are very accustomed to this president speaking his mind and speaking very straight with them . . .” That deflection wouldn’t earn a passing grade in any constitutional law course.

Five days, nine tweets and a live appearance later, Trump finished his tantrum. In the meantime, he’d called the entire judicial branch politicized and blamed it preemptively for the next terrorist attack on US soil. Shortly after losing a unanimous appellate court decision affirming Judge Robart, Trump tweeted again:

Counselor to the president Kellyanne Conway (JD, George Washington, ’92) defended Trump steadfastly: “I thought his tweet was perfect when he said, ‘We’ll see you in court.’” Later, she added, “If there are politics in any particular judicial decision, then the president and his spokespeople have a right to call that out.” But Conway knew that Trump’s losses hadn’t been political. Republican presidents had appointed Judge Robart and several others judges who had ruled against him.

A few days later, Trump senior adviser Stephen Miller—a non-lawyer—appeared on Sunday morning talk shows and offered these disturbing sound bites:

There’s no such thing as judicial supremacy.”
The judiciary is not supreme.”
We have a judiciary that has taken far too much power and become in many cases a supreme branch of government.”

Anyone with a law degree—and many without one—know that judicial review and the accompanying power of judges to invalidate legislative and executive action date to the early days of the republic. Where were Trump’s lawyers?

Afterward, Trump praised Miller:

Attorney General Jeff Sessions isn’t helping the US Constitution, either. He expressed amazement “that a judge sitting on an island in the Pacific” could “issue an order that stops the president of the United States. . . .” He was referring to the state of Hawaii.

As with the travel ban defeats, Trump responded to an April 25, 2017 judicial setback of his executive order regarding sanctuary cities by grabbing his Android at five o’clock in the morning:

The official White House statement on Trump’s latest defeat was even more intemperate:

“Today, the rule of law suffered another blow, as an unelected judge unilaterally rewrote immigration policy for our Nation . . . This case is yet one more example of egregious overreach by a single, unelected district judge. Today’s ruling undermines faith in our legal system . . . Ultimately, this is a fight between sovereignty and open borders, between the rule of law and lawlessness, and between hardworking Americans and those who would undermine their safety and freedom.”

If White House counsel Donald F. McGahn II (JD, Widener ’94) was doing his job, he had a hand in drafting that call to arms. If he wasn’t involved, then he should resign for malfeasance or ineffectiveness. Chief of staff Reince Priebus (JD, Miami, ’98) ran with Trump’s baton, saying, “It’s another example of the how the Ninth Circuit went bananas.”

Trump is playing with fire and his lawyers are fanning the flames. In the end, the nation will suffer the burns. Pence, Conway, and Priebus aren’t Trump’s official lawyers; Don McGahn has that role. But all of them have law degrees. They understand the separation of powers and know that checks and balances preserve a fragile system. They know that public confidence in the judiciary is essential to American democracy. And they realize that no one with a legal degree should aid or abet a presidential effort to undermine the US Constitution.

The stakes are high and have nothing to do with politics or party loyalty. They have everything to do with the fundamental role that the independent judiciary plays in restraining a renegade chief executive. History is rife with the tragic consequences of failure. Americans would do well to remember that no single person can create an autocracy; it requires help from others. Whether by sins of omission or commission, lawyers who encourage the systematic erosion of public trust in federal judges are a would-be autocrat’s allies.

Hopefully, historians will never have to write the story of how American democracy died. But if they do, the list of Trump advisers with law degrees will be a good place to start.

The next installment in this series will consider White House counsel Donald F. McGahn II.

This post was first published on BillMoyers.com

Steven Harper blogs at The Belly of the Beast, is an adjunct professor at Northwestern University, and contributes regularly to The American Lawyer. He is the author of several books, including The Lawyer Bubble—A Profession in Crisis and Crossing Hoffa—A Teamster’s Story (a Chicago Tribune “Best Book of the Year”). Follow him on Twitter: @StevenJHarper1.

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