Opposing Trump Is The New Article Of Faith For Lawyers

HK_Central_Statue_Square_Legislative_Council_Building_n_Themis_sBelow is my recent column about a type of new article of faith for lawyers in opposing President Donald Trump and his Administration.  Here is the column:

It seems these days like lawyers are proving Jeremy Bentham correct that “lawyers are the only persons in whom ignorance of the law is not punished.” Frankly, President Trump appears to bring out the worst in some lawyers. Indeed, opposing Trump appears to be a new article of faith for lawyers, including some who have been lionized for conduct that is facially unprofessional and arguably unethical.

Sally Yates and the obstruction of executive power

The strange influence that Trump has on lawyers was immediately apparent within days of his taking the oath of office. Acting Attorney General Sally Yates ordered the entire Justice Department to stand down and not to assist the president in the defense of his first executive order on immigration. In a letter to the president, Yates said she was not convinced that the law is just or right.

It was a curious position since the Justice Department argued for the last eight years, and as recently as 2016, that President Obama had sweeping authority over immigration. It is also the Justice Department that defended the alleged “torture program” under the Bush Administration without Yates or others taking such a stand. Yet, Yates effectively dared Trump to fire her over the immigration order and he did so.

Yates was immediately celebrated as a hero by many. Sen. Charles Schumer (D-N.Y.) called her firing another “Saturday Night Massacre,” referring to Nixon’s forcing the resignations of Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus. Yates, however, was less a political massacre as it was a ritualistic suicide. Yates could have resigned like Richardson and Ruckelshaus.

Indeed, she only had a couple days left at Justice Department. But she sought to prevent an entire federal department from supporting a sitting president of the United States. It was a highly unprofessional act that raised serious ethical questions about the duties of a government lawyer. Among the bar rules controlling the conduct of lawyers in Washington, Rule 1.3 requires any withdrawal to be done without harming the client.

Yates did not conclude that the order was unlawful but was simply not convinced of its legality even though many (including lawyers at the Justice Department) argued that the president had this authority. She articulated a reason to resign from her position but not to obstruct a president. Under the same logic, Yates’ position would allow officials to obstruct a host of executive actions based on the failure of the president to convince them of their wisdom.

Monica Herranz and the shielding of illegal immigrants

Oregon Judge Monica Herranz allegedly was not satisfied with just ordering staff not to assist the Trump administration. Herranz held a hearing with Diddier Pacheco Salazar, 22, an illegal immigrant who pleaded guilty to a driving under the influence (DUI) case. Immigration officers were waiting outside of the courthouse to take Salazar into custody.  However, he never emerged. When they went into the courtroom, he was gone. U.S. Immigration and Customs Enforcement (ICE) officers accused Herranz of allowing Salazar to use her personal chamber door to evade the officers.

If true, it was an act of knowing obstruction. It further contravenes federal law which makes it a crime to conceal, harbor, or shield an illegal immigrant from detection. Nevertheless, the U.S. attorney declined to criminally investigate the judge who will instead be subject to possible judicial discipline. In the meantime, many are celebrating a judge who is accused of using her judicial office to obstruct the enforcement of federal law.

Preet Bharara and the refusal to resign from his post

Most recently, the U.S. Attorney for Manhattan, Preet Bharara, took a baffling position in refusing a presidential directive to resign. The most charitable thing to say about Bharara’s action is that it was more unhinged than unethical. After Attorney General Jeff Sessions asked for the resignations of all U.S. attorneys, a standard change of political appointees in a new administration. New administrations (particularly with a change of party) often demand such resignations. Bill Clintondemanded the resignation of all U.S. attorneys and no Democrats or liberals objected. George W. Bush had more of a transition but ultimately replaced all but one U.S. attorneys.

Ironically, presidents will sometimes ask for global resignations from political appointees only to decline to accept some on an individual basis. Bharara’s action guaranteed that he would not be one of them. U.S. Attorneys Dana Boente and Rod Rosenstein did submit their letters and the president reportedly declined to accept their resignations. We will never know if Bharara might have been on that short list because he placed himself on an even shorter list in refusing to resign.

Bharara said that he believed that Trump agreed to have him continue as U.S. attorney. Yet, even that is true, what professional standard is Bharara relying on for this obstructive position? Bharara is a rebel without a cause. He has no vested interest in this political position even if a promise were made. Yet, he is being again lionized for his highly unprofessional and frankly juvenile demand that he be fired. Harvard Law Professor Laurence Tribe tweeted Bahara “is a hero. His firing was no ordinary turnover.”

All U.S. attorneys serve at the pleasure of the president. Bharara insisted on being fired despite the fact that Trump was entirely within his right to ask for resignations and was following the course of other presidents. It is hard not to conclude that Bharara was using his office to try to embarrass the president of the United States. By doing so, he played to political passions rather than performing his professional duties.

Attacking or obstructing Trump appears to be an accepted exemption from long-standing rules of legal practice and judgment. It is the legal version of the papal indulgences, which once forgave or reduced the punishment for sins. The legal indulgence appears to allow (and even celebrate) unprofessional acts, when taken in opposition to Trump or his administration. However, legal rules mean little if they become discretionary when they might support Trump. And if legal rules mean little, then lawyers will mean even less in this administration or any administration.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He is a nationally recognized legal scholar who has written extensively in areas ranging from constitutional law to legal theory and has been published in the law journals of Harvard, Cornell, Duke, Georgetown, and Northwestern University.

54 thoughts on “Opposing Trump Is The New Article Of Faith For Lawyers

    • Thank you for sharing that link. The analysis seems to be very reasoned and the 3rd option is particularly troubling with respect to the traditional separation of powers.

      “Imagine a world in which other actors have no expectation of civic virtue from the President and thus no concept of deference to him. Imagine a world in which the words of the President are not presumed to carry any weight. Imagine a world in which far more judicial review of presidential conduct is de novo, and in which the executive has to find highly coercive means of enforcing message discipline on its staff because it can’t depend on loyalty. That’s a very different presidency than the one we have come to expect.

      It’s actually a presidency without the principle that we separate the man from the office. It’s a presidency in which we owe nothing to the office institutionally and make individual decisions about how to interact with it based on how much we trust, like, or hate its occupant.”

      Would the Judiciary then be moving beyond interpreting the letter of the law by instituting their personal bias even more than we’ve come to expect? The time for vetting the character and virtue of a President with regards to his suitability of office was before the election and certainly prior to him taking the oath of office. He is now under oath and the measure of the Executive should be in his fidelity to that oath.

    • Mark M. – thanks for the link to the Lawfare article. It was interesting. I did notice a lot of judge shopping going on. They have only picked on tame judges so far.

  1. But who will protect us from them?

    Patriot Act and it’s supporting documents did three things.

    1. .Suspended the Constitution within 100 miles of the sea coasts and tributaries and land borders. This includes all civil rights and 1st Amendment Rights.

    2. Suspended habeas corpus, probable cause and once againi all civil rights substituting arrest upon ‘suspicion’ of terrorism and as added by Obama on suspicion of supporting terrorism.

    (Terrororism and terrorists not defined nor limited nor excluded US Citizens)

    3. and the following i got this from one of Napolitano’s articles not to confuse with Napolitiano the Governor of Arizona and the second or third head of DOHS now DHS.

    “Obama would not have needed a warrant to authorize surveillance on Trump. Obama was the president and as such enjoyed authority under the Foreign Intelligence Surveillance Act to order surveillance on any person in America, without suspicion, probable cause or a warrant.

    FISA contemplates that the surveillance it authorizes will be for national security purposes, but this is an amorphous phrase and an ambiguous standard that has been the favorite excuse of most modern presidents for extraconstitutional behavior.

    FISA was enacted in the late 1970s to force the federal government to focus its surveillance activities — its domestic national security-based spying — on only those people who were more likely than not agents of a foreign government. Because FISA authorizes judges on the Foreign Intelligence Surveillance Court to make rules and establish procedures for surveillance — essentially lawmaking — in secret, the public and the media have been largely kept in the dark about the nature and extent of the statute and the legal and moral rationale for the federal government’s spying on everyone in the U.S.

    The mass spying that these judges have ruled FISA authorizes is directly counter to the wording, meaning and purpose of FISA itself, which was enacted to prevent just what it has in fact now unleashed.

    We now know indisputably that this secret FISA court — whose judges cannot keep records of their own work and have their pockets and briefcases checked by guards as they enter and leave the courthouse — has permitted all spying on everyone all the time.

    The FISA court only hears lawyers for the government, and they have convinced it that it is more efficient to capture the digital versions of everyone’s phone calls, texts, emails and other digital traffic than it is to force the government — as the Constitution requires — to focus on only those who there is reason to believe are more likely than not engaging in unlawful acts.

    When FISA was written, telephone surveillance was a matter of wiretapping — installing a wire onto the target’s telephone line, either inside or outside the home or business, and listening to or recording in real time the conversations that were audible on the tapped line.

    Today the National Security Agency has 24/7 access to the mainframe computers of all telecom providers and all computer service providers and to all digital traffic carried by fiber optics in the U.S. The NSA has had this access pursuant to FISA court orders issued in 2005 and renewed every 90 days. The FISA court has based its rulings on its own essentially secret convoluted logic, never subjected to public scrutiny. That has resulted in the universal surveillance state in which we in America now live. The NSA has never denied this.

    Surveillance is now a catch all term historically desribed as tapping or even hacking but is all inclusive as there is now zero limits.

    “Velkom to ze DDR. Your papers? Your papers are not in order. You have what to do in the DDR? Next Window!”

    The movies come to the USA ….Velkommen …..

    All you patriots ought to try reading the Patriot Act one day. That is the parts you are allowed to read.

    The misuse of the above is one reason they don’t want to use these methods and would rather let the Congress do the investigations. After all they wrote the Patrioit Act and the rest of it. They can’t really say much without out point out their own culpability along with a few Presidents.

    Better it gets aired out in the open the way this President is doing.

  2. Do we really want to go down this road, where we will not accept the legal outcome of a democratic election?

    Because if this is how it’s going to be, then I guess we must gird our loins. Each and every time a president gets lawfully elected, the other side will refuse to accept it. Government employees will remain staunchly partisan, and refuse to do their jobs, obstructing that president.

    Every 4 years, one side of the government will war with the other, down to local offices, switching every time a new party takes office. No one will ever obey the will of the people or agree to do their jobs, regardless of politics.

    It will just be one interminable mud bath after another, until our reputation as a free republic is thoroughly ruined, and some man or woman takes over wearing a beret, aviator glasses, and smoking a cigar, to helm the banana republic that used to be free.

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