I admit it: this post is putting the cart before the horse. I need to complete a post about the leftist lawyer freak-out over Trump targeting ostentatiously anti-Trump, anti-Republican, pro-Axis law firms by handing them the just desserts for their abandonment of legal ethics and core professional principles to pander to the Democratic Party’s cabal over the past 15 years or more. But I am a bit short of time and energy right now, and Professor Vermeule, that rarity of rarities, a conservative Harvard professor, has done some of my work for me.
Last week, more than ninety members of the Harvard Law School faculty issued a joint letter supposedly concerning the “rule of law,” but actually embracing the same double standards and anti-Trump bias I have been witnessing from my lawyer friends on Facebook and especially in the online discussions among members of the Association of Professional Responsibility Lawyers. It said in part,
“The rule of law is imperiled when government leaders:
- single out lawyers and law firms for retribution based on their lawful and ethical representation of clients disfavored by the government, undermining the Sixth Amendment;
- threaten law firms and legal clinics for their lawyers’ pro bono work or prior government service;
- relent on those arbitrary threats based on public acts of submission and outlays of funds for favored causes; and
- punish people for lawfully speaking out on matters of public concern.
While reasonable people can disagree about the characterization of particular incidents, we are all acutely concerned that severe challenges to the rule of law are taking place, and we strongly condemn any effort to undermine the basic norms we have described….”
This is disingenuous posturing by partisan academics pretending to be neutral patriots. Professor Vermeule called them out on their pretense, writing in part in an open letter to his own to students and the public,
…It would be easy to offer essentially procedural and putatively neutral objections to the collective letter. In virtue of its joint signature list, its collective voice, and its claim to portray itself as a consensus statement of those who otherwise disagree, the letter hovers ambiguously between a statement of the faculty as such and a mere aggregation of “individual” views. It condemns legal policies on which eminent lawyers in good faith observably disagree, even while portraying itself as committed to honoring “diverse” viewpoints. Worse still, it speaks only to the “fears” of some, not all, of our students, and threatens to inflame the fears of other students…
Among you, the students of Harvard Law School, there is a surprisingly large and intellectually powerful contingent who are conservative in some sense or other, many of whom support the current President and the legal policies of his administration. What exactly are you supposed to think when an overwhelming supermajority of the faculty, although purporting to speak “in their individual capacities,” jointly condemn those policies? You might be forgiven for wondering if you will get a fair shake during your time at the law school. Perhaps that concern will turn out to be objectively warranted, or perhaps it won’t. But the concern in itself is entirely legitimate, and as the collective letter speaks to the “fears” of other students without asking whether those fears are objectively justifiable, it seems only fair to do the same in the other direction…
[T]he collective letter, although no doubt offered in good faith by its signatories, is shot through with selective ideological blindness. It is, I am sorry to say, a sectarian document cast as an appeal to high principle. Let us here ignore all other political controversies in recent years, and confine ourselves to those directly involving lawyers, judges, and legal representation: Where were the letter’s signatories when federal prosecutors took the unprecedented step of bringing dozens of criminal charges against a former president, who also happened to be the leading electoral opponent of the then-incumbent president? Where were the signatories when Jeff Clark, Rudy Giuliani, John Eastman, and other lawyers were disbarred or threatened with disbarment, and indeed prosecuted, for their representation of President Trump? Was this not a threat to the rule of law? Where were the signatories when radical activists menaced Supreme Court Justices in their homes, or when a mob hammered on the doors of the Supreme Court itself? Where were the signatories when the Senate Minority Leader shouted to an angry crowd outside the Court that “I want to tell you Gorsuch, I want to tell you Kavanaugh, you have released the whirlwind and you will pay the price. You won’t know what hit you if you go forward with these awful decisions”? Were these not also literal threats to the rule of law?
…Now, of course, one can always say that “well those prosecutions or disbarments or protests were actually warranted, you see”; and the collective letter is careful to insert the qualifier that it only defends “lawful and ethical” representation. But the very question at issue is what is to count as “lawful and ethical,” and who gets to define what those terms mean. And that is what makes the ideological selectivity of the letter both painfully obvious and deeply corrosive of the shared ideal of the rule of law to which it appeals. Two can play at the game of ideological definition, but when they do, both will lose….
Bingo.
Do read all of the professors retort.
Ethics Alarms 
I read the linked full text of the professor’s open letter, and liked it. I especially liked his pledge to students opposed to the Trump administration’s policies that he would teach the law “without fear or favor,” and that when he did offer his own interpretation of a particular point of law, he would also indicate how others differed in their interpretation.(Haven’t been able to sign into the combox lately using my Facebook credentials, so just commented as an email reply.)Sincerely,Catherine McClarey
I give it a week before they try to fire him for lack of collegibility, because his writing causes fear in his students, or some other ficititions reason.
I meant “collegiality”
I very much like “collegibility,” Phlinn. I can imagine the Oxford English Dictionary defining it as “The innate ability, most often in an academic setting, to obsequiously conform to any behavioral or thought model on offer at any given time for purposes of professional advancement and self-preservation without ever actually meaning a thing you say or do.”
He’s been an outlier at Harvard for a long time. And he has tenure.
Ok, maybe I’m a little too cynical.
You’re comparing apples to oranges. And comparing a lawful process to one entirely made up by Trump only for purposes of revenge. If Trump had a beef with lawyers or a law firm, he had every right to have his lawyers file a rule 11 motion in court, or to petition the state bar where the lawyers were licensed or take other appropriate legal action with the system.
The issue is Trump is not following a legal or lawful process, since the EOs violate the Constitution and appear to be similar to a Bill of Attainder. But Trump’s Impeachments, prosecutions, investigations, and the like went through grand juries, indictments, judges, juries, etc. That is, the legal process was followed, whether Trump liked it or not.
If Trump has a beef with a lawyer or a law firm, the appropriate forum is to raise that during the legal proceeding with the court, or to bring something to the attention of a state bar, if there is some sort of ethical violation.
But simply using the power of an office to take personal revenge is not what the office of the presidency is for.
You’re completely wrong, but I’ll make that clear in a full post. Your last paragraph is bad enough: it’s not personal revenge to force a law firm that has announced itself as a foe of the current President and administration to forfeit the privileges a non-partisan, traditionally objective and professional firm would normally recieve. “We are in the pocket of the resistance and the Democrats!” was the virtual announcement from those firms. Of course this administration can’t trust them. Traditionally lawyers and law firms were resolute in not allowing pressures from third parties and desires of other clients to influence their decisions of whom to represent. John Adams, you know. Now many firms have abandoned professionalism for cash and misguide virtue signaling. What Trump is doing to those firms is absolutely just and appropriate.
Oh: the Bill of Attainder comparison is absurd. Your comment would have had a lot more credibility without it.
announced itself as a foe of the current President
It has done no such thing. Clark, Eastman and Giuliani were provided their due process rights to contest the allegations in hearings. Trump is applying his own, sole judgement to impose sanctions on law firms with no due process. THAT is why the two situations are not comparable.
Clark, Eastman and Giuliani were targeted only because they represented Trump. Their bar punishments were unprecedented and were political and partisan. At worst they should have been fined or sanctioned like other lawyers who have engaged in similarly inadequately supported claims. Due Process isn’t the issue. No law firm has a right to security clearance, or a right to get business from the government. You’re throwing terms around that sound good but are inapplicable.
Clark, Eastman and Giuliani were targeted only because they represented Trump.
No they weren’t. Also, the lawyers who were a part of these cases aren’t at the firm anymore. Even if this was true, they were provided due process rights to contest the allegations in hearings.
Their bar punishments were unprecedented and were political and partisan.
That’s because their actions were unprecedented. Who else had a fake elector scheme or filed clearly false and kooky affidavits under rule 11?
At worst they should have been fined or sanctioned like other lawyers who have engaged in similarly inadequately supported claims.
Like who?
Due Process isn’t the issue. No law firm has a right to security clearance, or a right to get business from the government. You’re throwing terms around that sound good but are inapplicable.
This violated the law firm’s First amendment rights, it’s also a company death sentence by the government against a company they don’t like since they rely on doing business with the government. It also was done without zero process so that’s why there was no due process done at all. It’s very clearly the Trump administration sending a message to law firms “if you oppose use, we’ll ruin your business”
Why didn’t Trump file something (through counsel) with the court during the pendency of the litigation or action where the representation (he feels is improper) was occurring, or to submit a complaint to the relevant state bar? That is how the process works if you have an issue with a lawyer or law firm.
A firm can represent Charles Manson or Bernie Madoff or Jeff Epstein. It doesn’t mean they are doing anything wrong. And taking on opponents of the administration doesn’t mean you are doing anything wrong and law firms announce all the time that they are handling certain classes or categories of matters. Including right wing firms who take on religious freedom cases or represent the administration.
It’s attacking the profession and legitimacy of people representing different groups and economically disabled entire firms for employing people who offended the president. The district courts are rightly outraged.
The imaginary First Amendment claim exposes your bias. There is nothing in the First Amendment that requires the government to ignore stated conflicts of interest by aspiring contractors. And you are proving Prof. Vermeule’s point: “Now, of course, one can always say that “well those prosecutions or disbarments or protests were actually warranted, you see”; I’m sure you think the contrived, rigged, unethical prosecutions of Trump were valid too. And the two purely partisan impeachments. And the crippling “Russian Collusion” investigation based on a false Hillary Clinton “opposition research” document and illegally obtained FISA warrants.And the two purely partisan impeachments —Hey, the President got “due process,” so what’s the problem?
Oh.. a law firm is accountable for what its lawyers do and the policies they follow.
I’ve seen all of these intellectually dishonest arguments before…and better.
The imaginary First Amendment claim exposes your bias. There is nothing in the First Amendment that requires the government to ignore stated conflicts of interest by aspiring contractors.
This doesn’t make sense because the gov’t is under no obligation to hire these firms as contractors in the first place. This also wasn’t an argument put forth in the EO.
It is a violation of the firm’s First Amendment because the law firm is now unable to exercise its free speech representing clients who oppose the government, even partisan ones. There was zero due process performed by the administration when the firm lost its ability to exercise their free speech in representing clients against the gov’t. Due process mandates that a person facing a government sanction receive notice of the case and an opportunity to be heard. None was given.
The First Amendment prohibits government officials from subjecting individuals to retaliatory actions after the fact for having engaged in protected speech. Also, Trump didn’t justify his order based on a desire to address the conflicts of interest, because the order punishes, for example, Perkins Coie employees for the firm’s past association with lawyers who have left.
For example, Trumps EO accused Perkins Coie of trying to overturn popular, necessary, and democratically enacted election laws, including those requiring voter identification. This is Perkin Coie’s First Amendment right to do so. This is viewpoint discrimination.
Ding! “It is a violation of the firm’s First Amendment because the law firm is now unable to exercise its free speech representing clients who oppose the government, even partisan ones.”
That’s obviously untrue and a silly claim. You’re not worth arguing with if you’re going to make ridiculous statements like that. Someone else can waste time trying to explain it to you, but be warned: you are getting into “Stupidity Rule” territory.
That’s obviously untrue and a silly claim.
No it’s not.
Also, Trump didn’t justify his order based on a desire to address the conflicts of interest, because the order punishes, for example, Perkins Coie employees for the firm’s past association with lawyers who have left.
That is a collateral consequence.
Perkins Coie was responsible for the conduct of its lawyers.
Marisa wrote:
This violated the law firm’s First amendment rights, it’s also a company death sentence by the government against a company they don’t like since they rely on doing business with the government.
This is without a doubt the most absurd and legally ignorant remark I have seen lately. The First Amendment does not provide any person or group with a right to represent the government in a legal matter.
Even if Trump ordered the government not to do business explicitly because of their supposed ideology only, it is not a First Amendment matter. Their right to speak is not infringed at all, they may still comment on matters of public concern, and are free to engage in any legal representation for which a client will engage them.
You seem to suggest that the government must have a pure non-partisan reason for refusing to engage them. I claim the government can choose to engage them, or not, for any reason including the color of their Managing Member’s tie as well as the fact they have demonstrated flagrant hostility to the administration. Would you hire a lawyer to represent you if you knew they despised you and your business? No, because you would rightly be concerned that their differences with you might interfere with their zealous representation of you.
The fact that the US government refuses to engage them, regardless of the reason, has nothing at all to do with the First Amendment.
And finally, where in the Constitution does it say that the US government cannot refuse to do business with somebody because it might bankrupt them? I can’t seem to find it anywhere, but you suggest it must be there somewhere!
I claim that any business that places all it’s eggs in one basket is virtually asking to be bankrupted, and doesn’t deserve to be in business at all.
(Thank you.)
The First Amendment does not provide any person or group with a right to represent the government in a legal matter.
No one said that.
If no one said that what is this statement you wrote?
“It is a violation of the firm’s First Amendment because the law firm is now unable to exercise its free speech representing clients who oppose the government, even partisan ones.”
What does a security clearance have to do with representing a client that opposes the government other that being able to charge higher fees? Are you saying they cannot perform adequate discovery? If so, then all law firms are entitled to equivalent security clearances to provide equal protection. What makes Perkins Coie special.
Marissa is missing the forest for the trees. You don’t attack a lawyer for representing a client that many officers of the courts do not like. It was obvious that any due process Trump was afforded was just going through motions to appear he got due process when the decisions were made before the first argument was uttered.
Letitia James campaigned on getting Trump. Perkins Coie laundered the payments From HRC through the DNC to Steele in the collusion hoax. The Pennsylvania supreme court abrogated its duty to not take up a case when elections officials changed rules in violation of the state constitution and other courts ruled that Trump’s challenges lacked standing. Sure, all this was technical due process but the process was hardly fair.
For us lay people it looks like those charged with meting out equal justice do so only when the mood strikes them or when it follows in keeping with ideological perspectives of the judges. Why else would Act blue and others spend ten million out of state dollars on a supreme court race where one candidate has pledged to rule for the progressive left. I once had a strong belief in our system of justice but too many prosecutors and judges have proven themselves unfit to provide equal treatment under the law and it is they who have harmed the legal profession.
Perkins Coie laundered the payments From HRC through the DNC to Steele in the collusion hoax.
That is justification enoigh to revoke its security clearance, as well as further investigation into its degree of involvement in the Steele dossier
It was, however, your implication. There are no First Amendment issues in this controversy at all.
The First Amendment does not provide any person or group with a right to represent the government in a legal matter.
No one said that.
Please explain how the government deciding to no longer do business with Perkins Coie violates their first amendment rights, if the first amendment does not provide them with a right to engage in such business? That apparent inconsistency is why people think you suggested they did have such a right.
The EO directed the government to terminate contracts when possible, and to suspend their security clearances pending review. It does not constrain their speech. There is a distinction between choosing not to do business with someone based on who they associate with and actively harming them.
I think any attempt to draw a line based on the governemtns reasoning for not engaging in business would have too many reductio ad absurdum options to work. It would certainly lead to invalidating large parts of the civil rights act, which explicitly blocks government contracts based on who business choose to associate with. I’m in the fringe who think the civil rights act IS bad law, but I find it doubtful you would agree.
Who else had a fake elector scheme
John F. Kennedy, and he prevailed.
The term “fake electors” only came into fashion because Trump Bad. Hillary also explored having “alternate electors” ready, just in case.