Below 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.
Lawyers are charged with defending the Constitution. The Constitution is supreme over statutory law. Recall, for one example, its used to be a “law” that blacks could not sit at a white lunch counter; that example amply illustrates the tension that lawyers must deal with on a daily basis. By contesting the Jim Crow laws, lawyers were arguably not following the law, rather, they followed the overarching concept of the supremacy of the Constitution. There is such a thing as an absolute truth; one is allowed his own opinion, but not his own facts. There is no reasonable argument that the current holder of the presidency is in any way qualified to be there; as a matter of fact, there is a very reasonable argument that he manifests the greatest danger to our constitutional republic (and hence, the Constitution) since the events of 1861. Viewed through that clarifying lens, it behooves all lawyers to contest and controvert in every legal way possible the actions of the current administration which serve to endanger the Constitution. I am very proud to stand tall for the Constitution of the United States of America.
Mark M – were you standing tall for the Constitution when Obama was twisting it into knots? Trump is just following Obama’s lead.
“There is no reasonable argument that the current holder of the presidency is in any way qualified to be there;”
Mark M.,
This is the United States Constitution you are talking about, correct? I ask simply because President Trump meets EVERY qualification required to be elected President.
Next time you feel the need to dissemble, withstand that urge. You know very well I wasn’t referring to age, residency and citizenship at birth.
Mark,
I know very well that you imply you respect the constitution. So don’the look now, but you just made a reasonable argument to counter your Trump qualification claim.
You’re welcome. 😆
Yes, John, we should ignore that a child is in the White House and pose no problem as he dismantles the government and destroys the country…
…Yet, even that is true, what professional standard is Bharara relying on for this obstructive position? …
Maybe, John, the same professional standard that begat this country?
I would not oppose Trump or say disparaging words about him in front of a jury.
That is the crux of lawyering. Not yakking on the email with fellow professors who do not meet with the real public at jury trials. And I would not pee off a Trump judge either.
No. He is out of the picture for lawyering– real lawyering.
Hey Anon,
Here is an excellent example regarding government overreach, correction, and reversal:
https://danieljmitchell.wordpress.com/2016/09/20/the-unsung-economic-success-story-of-new-zealand/
“When we started this process with the Department of Transportation, it had 5,600 employees. When we finished, it had 53. When we started with the Forest Service, it had 17,000 employees. When we finished, it had 17. When we applied it to the Ministry of Works, it had 28,000 employees. I used to be Minister of Works, and ended up being the only employee. …if you say to me, “But you killed all those jobs!”—well, that’s just not true. The government stopped employing people in those jobs, but the need for the jobs didn’t disappear. I visited some of the forestry workers some months after they’d lost their government jobs, and they were quite happy. They told me that they were now earning about three times what they used to earn—on top of which, they were surprised to learn that they could do about 60 percent more than they used to!”
PLUS many more UNEXPECTEDLY good results! Please try and read with an open mind, all the way through.
“We lowered the high income tax rate from 66 to 33 percent, and set that flat rate for high-income earners. In addition, we brought the low end down from 38 to 19 percent, which became the flat rate for low-income earners. We then set a consumption tax rate of 10 percent and eliminated all other taxes—capital gains taxes, property taxes, etc. We carefully designed this system to produce exactly the same revenue as we were getting before and presented it to the public as a zero sum game. But what actually happened was that we received 20 percent more revenue than before. Why? We hadn’t allowed for the increase in voluntary compliance.”
HA read that last sentence again! WE HADN’T ALLOWED FOR THE INCREASE IN VOLUNTARY COMPLIANCE!!
That danged invisible hand slapping people again.
What you see sometimes is nothing more than a shell game. The Judge, well things can happen.
Yates, she stood by her principle. Show me cases where she represented the DOJ on an Executive Order. I could not find any.
Preet, I see his rationale for not resigning. He had been asked personally to stay by Trump and Sessions. If they wanted to fire him they should have done it in the same manner as the request to stay on.
Now the sticky one is Preet was/is investigating Trumps business associates for corruption. I guess this will come out as Preet could bring a private lawsuit and act as a Prosecutor. I think Trump is biting off more than he can chew.
Websteris back..
“Picking and Choosing: Fired acting AG backed Obama’s unlawful executive order on immigration”.–WASHINGTON TIMES. Jan.31, 2007
The elimination of food programs for poor elderly should be opposed by anyone with moral principles.
Spokesperson for the left who have no morals. Interesting Not really, strange? No just normal. Another very poor choice of words? Certainly.
This from the political group that for eight years directly attacked the poor elderly with the cycle of economic repression Borrow, inflate, devalue, repudiate and lowered those same people buying power WITHOUT adjusting their COLA not one thin dime.
Spare me your mealy mouth lack of moral values.
One of the main reasons we kicked you out of office. You have no morals, you have no values and you use the elderly as a way of paying the TANSTAAFL bill as the group least able to fight back or do anything about your vicious depredations.
Bight me Comrade Anon we don’t serve the party. That’s the job of the clone collective. That particular
complaint is one YOU. YOU own it
But now watch the House Budget committee do what they call marking the bill on the first go round of trying to get a viable bill. Waste of time and done as a delaying tactic I guess but anytning to keep from actually working…..That’s on YOU and the RINOs your alt right partners in crime.
Mark up has a cousing called Ear Marks and that’s where the pork hits the pig trough. That’s the part to watch closely as the one inch bill becomes six inches tall.
We’ll havfe to see is if the hatchet job we did on the left was sufficient. If not there is always next time. Not that we have our Constitution back (absent a few black robed dictator wannabes and those still pretending Democrat does not mean left wing fascist loser socialists.
Wouldn’t put it past one of Kerry’s side deals to hold off and then do terrorism on demand the same way they had the RINOs to do ‘cave on command’ in the Congress.
complaint is one YOU. YOU own it should be ‘complaint is on YOU. YOU own it.’
We really need an edit function. ….
Meals on Wheels gets 3% of it’s funding from the government. Your many deep pocketed billionaires can make that easily.
https://twitter.com/JamesFallows/status/842240081544978433
https://twitter.com/StephLauren/status/842178674036219905
I would be impressed if there was as much concern for the rights of the President’s boss to have their day in court.
Yours is political drivel here, Mr. Turley. Yates believed the EO “may be unconstitutional,” and she instructed her assistants not to enforce it. That’s hardly unethical or unprofessional balanced against your claim that she harmed her client by withdrawing. Your man in the White House is the prototype for lack of ethics and professionalism.
Go Brewers!
Steve:
Sounds like you’ve already gone to lots of brewers today.
yawn
This is no surprise whatsoever. The culture of the law professoriate and the appellate judiciary was ruined decades ago and the Democratic Party is these days aught but the electoral vehicle of the word-merchant element, lawyers foremost among them. Rank and file lawyers are not the problem. Appellate judges, BigLaw, and law schools are the problem, and democratic institutions are incongruent with the behavior of these elements of the legal profession at this time. It’s kill or be killed as we speak.
So much of what is going on in this country proves Lincoln’s quote perfectly; “The philosophy of the school room in one generation will be the philosophy of government in the next.” This is not reasoned obstruction but irrational indoctrination. Take a look at how much effort went into denying Betsy DeVos for Education Secretary. The progressive Left cannot release their grip on education and give parents the power to determine what they believe is in their own children’s best interests.
The following article discusses how the progressives have built this indoctrination system of education that functions very similar to a strict, fundamentalist religion, especially at private universities:
“What does it mean to say that these institutions are religious schools? First, that they possess a dogma, unwritten but understood by all: a set of “correct” opinions and beliefs, or at best, a narrow range within which disagreement is permitted. There is a right way to think and a right way to talk, and also a right set of things to think and talk about. Secularism is taken for granted. Environmentalism is a sacred cause. Issues of identity—principally the holy trinity of race, gender, and sexuality—occupy the center of concern.”
https://theamericanscholar.org/on-political-correctness/#.WMqCCn_1Lo1
olly – another article recently published by Andrew Sullivan, says much the same:
http://nymag.com/daily/intelligencer/2017/03/is-intersectionality-a-religion.html
Thank you for the citation maplady. I had read that yesterday and could not recall the link.
That woman mentioned who worked in the Justice Dept is probably the worst of those mentioned. The Preet guy is trying to make a name for himself so as to run for some office or oriface.
The constitutional right of habeus corpus is irrepealable. It can be suspended when necessary in times of rebellion or invasion: “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.”
Jimmy brings up a good point though that proponents try persuading the public to the contrary, i.e., that congressional legislation can repeal it.
He’s had some really spot-on videos lately.
I would go a step further and say that this is what happens when politics becomes a religion, where followers are so eager to allow politicians to dictate their lives, they are apt to enforce it against others.
Those ordinary citizens who allow this to happen to themselves are only being played as the fool. To allow themselves to be so eagerly controlled by their lack of independent thinking, these true believers delude themselves into the fallacy that they are such intellects and architects of influence, In reality they are just willing pawns to be used and then disregarded once their vote is cast and the powers to be and their peers can enjoy being the actual beneficiaries of the work of the fools.
You can either be the captain of your destiny through living your own life, or live it vicariously by entreating those who think for you.
Darren–you could not be more correct. The sad thing is that today, in the USA, politics IS a religion and certainly those who voted for Trump prove he is correct for us as an article of faith. What hath God wrought? Oh, I understand, a Turley.
This is what happens when you move from a “rules based” system of justice to a “personal whim based” system.
It is the same thing that happens when Leftist Democratic college students shut down the free speech rights of others on campus, or when immigration laws are flouted. Or, when inner city thugs riot over cops shooting thugs in small numbers and do nothing when thugs shoot thugs in large numbers.
This is brought to you courtesy of the Democratic Party, where “feelings” and “empathy” reign supreme, and most of the media is working hand over fist to promote Democratic Party agendas.
It is not fixable without great violence by the people on the other side. Which means that it is not fixable, because the other side believes in rules.
Squeeky Fromm
Girl Reporter
They are woofing out of fear at seeing how easy it was for the real rulers of the country to tear down their house of cards. That’s the good thing about a Constitutional Republic. In business in the USA since 1898 it took just a few months to shred it’s very existence into the nearest garbage pail.
That condition is called self government as described by the founders and framers it’s composed of the ultimate source of power in the country the citizen. Independent, free, rational thinkers who use reason and to embellish that use that condittion to examine the nature of all things as to the value or usefulness of that being examined.
There will be more. This isn’t over by a long shot. I fully ecxpect incidents of recal and initiative to increase on a local level as the citizens learn a forgotten lesson and truth., Citizens are the employers and government is the ‘temporary’ employee.
The second truth is the makeup of political parties changes No telling what the sad sack shreds of the left become with their bits and pieces – whats left of them – but in the center we’re finding a revival of trust in the notion the center of the national political discourse in a Constitutional Reublic IS the Constitution which handily offers a method of change when needed. Not by one wanna be dictator in black robes but by that ultimate authority the people themselves. All leading to the gradual formationi of a Constitutional Centrist Coalition – the new style of party.
Not new just rediscovered.
And one in which the legal profession is not seen as central but as ‘somewhat useful’ …..possibly…..after having their nature examined…and perhaps their value for value offerings to the social contract re-examined.
How long will we last as a Republic?
Our Constitution is no longer or barely taught in public schools and in the police academies they are taught our Founding fathers were terrorist.
There is no longer a rule of law unless the liberals approve of it. Viva la revolution!!!!
JT not being an attorney your last paragraph is chilling. If we can no longer trust those we expect to live, enforce and set example for our law the way it was written, void of personal and political feelings where is the rule of law? I hear people on the networks saying they’re afraid and nervous, well I’m beginning to get nervous and fearful myself and it’s not from President Trump. The party that lost the election has done nothing but try to subvert a legally elected President.
Trump is succeeding in getting the MSM and legal profession to implode via their arrogance and entitlement.
https://twitter.com/davidsirota/status/842375334213361666
Indeed. The 9th Circuit is filled with goofballs. Will be much happier when Trump seats his Supreme Court Nominee and these rogue lawyers are brought to heel.
I respectfully disagree.