OPINION
GUEST ESSAY
The Trump Threat Is Growing. Lawyers Must Rise to
Meet This Moment.
Nov. 21,
2023
By George
Conway, J. Michael Luttig and Barbara Comstock
The writers
are lawyers. Mr. Conway was in private practice. Mr. Luttig was a judge on the
United States Court of Appeals for the Fourth Circuit from 1991 to 2006. Ms.
Comstock represented Virginia’s 10th District in Congress from 2015 to 2019.
They serve on the board of the newly formed Society for the Rule of Law
Institute.
American
democracy, the Constitution and the rule of law are the righteous causes of our
times, and the nation’s legal profession is obligated to support them. But with
the acquiescence of the larger conservative legal movement, these pillars of
our system of governance are increasingly in peril. The dangers will only grow
should Donald Trump be returned to the White House next November.
Recent
reporting about plans for a second Trump presidency are frightening. He would
stock his administration with partisan loyalists committed to fast-tracking his
agenda and sidestepping — if not circumventing altogether — existing laws and
long-established legal norms. This would include appointing to high public
office political appointees to rubber-stamp his plans to investigate and exact
retribution against his political opponents; make federal public servants
removable at will by the president himself; and invoke special powers to take
unilateral action on First Amendment-protected activities, criminal justice,
elections, immigration and more.
We have
seen him try this before, though fortunately he was thwarted — he would say
“betrayed”— by executive branch lawyers and by judges who refused to go along
with his more draconian and often unlawful policies and his effort to remain in
office after being cast out by voters. But should Mr. Trump return to the White
House, he will arrive with a coterie of lawyers and advisers who, like him, are
determined not to be thwarted again.
The
Federalist Society, long the standard-bearer for the conservative legal
movement, has failed to respond in this period of crisis.
That is why
we need an organization of conservative lawyers committed to the foundational
constitutional principles we once all agreed upon: the primacy of American
democracy, the sanctity of the Constitution and the rule of law, the
independence of the courts, the inviolability of elections and mutual support
among those tasked with the solemn responsibility of enforcing the laws of the
United States. This new organization must step up, speak out and defend these
ideals.
Leaders of
the legal profession should be asking themselves, “What role did we play in
creating this ongoing legal emergency?” But so far, there has been no such
post-mortem reflection, and none appears on the horizon. Many lawyers who
served in the last administration — and many on the outside who occupy
positions of influence within the conservative legal community — have instead
stood largely silent, assenting to the recent assaults on America’s fragile
democracy.
We were
members of the Federalist Society or followed the organization early in our
careers. Created in response to left-liberal domination of the courts, it
served a principled role, connecting young lawyers with one another and with
career opportunities, promoting constitutional scholarship and ultimately
providing candidates for the federal bench and Supreme Court.
But the
Federalist Society has conspicuously declined to speak out against the
constitutional and other legal excesses of Mr. Trump and his administration.
Most notably, it has failed to reckon with his effort to overturn the last
presidential election and his continued denial that he lost that election. When
White House lawyers are inventing cockamamie theories to stop the peaceful
transition of power and copping pleas to avoid jail time, it’s clear that we in
the legal profession have come to a crisis point.
We are
thankful that there were lawyers in the Trump administration who opted to
resign or be fired rather than advance his flagrantly unconstitutional schemes.
They should be lauded.
But these
exceptions were notably few and far between. More alarming is the growing crowd
of grifters, frauds and con men willing to subvert the Constitution and
long-established constitutional principles for the whims of political
expediency. The actions of these conservative Republican lawyers are
increasingly becoming the new normal. For a group of lawyers sworn to uphold
the Constitution, this is an indictment of the nation’s legal profession. Any
legal movement that could foment such a constitutional abdication and attract a
sufficient number of lawyers willing to advocate its unlawful causes is ripe
for a major reckoning.
We must
rebuild a conservative legal movement that supports and defends American
democracy, the Constitution and the rule of law and that incentivizes and
promotes those lawyers who are prepared to do the same. To that end, we have
formed a nonprofit organization, the Society for the Rule of Law Institute, to
bring sanity back to conservative lawyering and jurisprudence.
There is a
need and demand for this new legal movement that the legal profession can
readily meet. Pro-democracy, pro-rule-of-law lawyers who populate our law
school campuses, law firms and the courts decry what is happening in our
profession. They deserve an outlet to productively channel these sentiments.
Originally
formed in 2018 as Checks & Balances during what we took to be the height of
Mr. Trump’s threat to the rule of law, the organization spoke out against his
transgressions. Since then, the legal landscape has deteriorated to a degree we
failed to imagine, with Mr. Trump and his allies explicitly threatening to
upend fundamental tenets of the American constitutional system if returned to
power.
We believe
it is necessary to build a legal movement with the capability to recruit and
engage dues-paying members, file legal briefs, provide mentorship and career
opportunities, convene supporters and speak out as vocally and forthrightly as
is necessary to meet the urgency that this moment requires.
First and
foremost, this movement will work to inspire young legal talent and connect
them with professional opportunities that will enable them to fulfill their
vast potential without having to compromise their convictions.
Second, the
movement will focus on building a large body of scholarship to counteract the
new orthodoxy of anti-constitutional and anti-democratic law being churned out
by the fever swamps. The Constitution cannot defend itself; lawyers and legal
scholars must. Conservative scholars like the former federal appellate judges
Michael McConnell and Thomas Griffith and the law professor Keith Whittington,
who joins Yale from Princeton next year, are models for a new and more
responsible conservative legal movement.
Third and
most important, we will marshal principled voices to speak out against the
endless stream of falsehoods and authoritarian legal theories that are being
propagated almost daily. To do otherwise would be to cede the field to lawyers
of bad faith. We have seen in recent years what the unchecked spread of wildly
untrue and anti-democratic lies gets us. We lawyers have a gift for advocacy
and persuasion; we must use it.
While those
in the pro-democracy legal community — many of them progressives — might
disagree with our overall legal philosophy, we welcome them with open arms. We
are at a point when commitment to fundamental classical liberal tenets of our
republican form of government is far more important than partisan politics and
political party — and even philosophical questions about the law. Our country
comes first, and our country is in a constitutional emergency, if not a
constitutional crisis. We all must act accordingly, especially us lawyers.
The writers
are lawyers. George Conway was in private practice. J. Michael Luttig was a
judge on the United States Court of Appeals for the Fourth Circuit from 1991 to
2006. Barbara Comstock represented Virginia’s 10th District in Congress from
2015 to 2019. They serve on the board of the newly formed Society for the Rule
of Law Institute, formerly called Checks & Balances.
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