All the o ) ers resldent S L

STEVEN J. HARPER LLB at Kirkland & Ellis a retired partner at Northwestern Law School' is an adjunct Professor (Basic Books)' The author Profession in Crisis LawYer Bubble: A anal author of The

The president seems dustbin of failed republics' principle of the into history's a lawyer' It's a bedrock Everyonedeserves civilized soci- l"gut ti" t*t"*t"t" "'i:.,:"fi ::ff :'""T'J;:reattornevssurroundinghimdon'timme- American :1anvbackbone of ?o prospect of fulfilling an 'y't"ti tt'" either' tt'" ety's approa.t' t" t"*i"f :"ttt"' :thical would-be seem to care the lure of future that propelled countless ""ti'p' them- Mavbe tt ,ol,"i diate policv agenda Whatever Kiila Mockingrira, " '';;;;tt is overwhelming' to law school' wealth or the proxim'i'-to angels etti.u, Finches 'o*"tn"". yielded to the lesser there limits? the reason, too many r'J*.I, But are involving Clarence profession and the country's Supreme Court-case e, ,r","v u",*y their The landmark 1963 of their nature. right to counsel must call them out' t"jit"* defendant's ideals, the rest of us Gideon *tt"nt""JJi a i"""U"* Earl the "everyone deserves in criminal cases' Yet *n"*itJ"'t""'J''"'oke tt rationalize-cl^1;t reFesentations lawyer" mantra the Rule of l'aw that constitutional protectton' DisresPect for ;il;; far bevond the cli- the rule oflaw in order' especially when his disrespect for reflection might be and often, Trump touted A liftle more rule of law EarlY advis- podium to attack the ol Powers' RepeatedlY, world's the Constitution 's separation ent uses the -ott to help him' and emboldened him' 'oi"tfulor complicity of lawyers defended and therebY enlists the ers with law degrees at itself and """" But when treatment of protesters is entitled to legal representation' he encouraged rough President Trump no As a candidate, foundation' he has for a ban on all Muslims constitutional December 2015' he called he undermint' Arn"tit''' for his rallies. In with law degrees' Respect right to assistance f'"* entering the countrY' what be- "Jftts issue' It's.the legal profession's the first missile in of law is ttot u potti"n same month' he launched the rule It is also That and its owner' th" Co"'titutil;'s design' on the l/ashingt on Post fo""' t""liito came an ongoing attack animating stool was negative cov- single leg of the separation-of-powers for what Trun.rp claimed fragile. Remove any 's Jeff Bezos' assault morphed into Trump's collaPses' him and his campaign' The unJ orr. democracY implications of erage of have "such understand's the president' Amazon would Everv law school;;;;;;tt threat that, if he became it and all other policy contro- he promised to "open up" that prinJiple' Forsake Then, in febtua'v 2016' abandoning disappears problems." the great American experiment versies fade away, as

53

2018 voL 45 | NO 1 I FALL r

the nation's libel laws so he could win "lots of money" by suing won the presidency, restraining influences would keep him in papers such as Bezos's Post and the New YorkTimes. He attacked check. "He'll have a counsel," said Senator Mitch "" that wasn't fake; rather, he just didn't like it. McConnell (JD, Kentucky,'67)."'[here will be others who point Perhaps it was easy to dismiss those rants because Trump was out there's certain things you can do and you can't do." not yet the party's nominee. But even after emerging as the likely But it hasn't happened that way. head of the Republican ticket, he persisted. Trump's June 2016 Instead, a dangerous normalization of abhorrent presidential barrage against an Indiana-born federal judge for his "Mexican behavior began. Sure, there was a -Donald heritage" crossed yet another red line. Judge Gonzalo Curiel had McGahn (JD, Widener,'94)-and many other close advisers with ruled against a Trump-branded "university" that promised to law degrees: Vice President (JD, Indiana-Robert help students get rich investing in real estate. In circular fashion, McKinney School of Law, '86); (JD, George Trump reasoned that his own comments about Mexicans and im- Washington, '92); (JD/MBA, NYU,'07). migration somehow meant that the judge couldn't be impartial. Until Attorney General (JD, Alabam a,'73) and Had they come from an attorney, Trump's caustic remarks would chief of staff (JD, Miami,'98) fell from Trump's have warranted immediate strong sanctions. grace, they were in the mix too. To use McConnell's words, all of Plenty of intelligent people with law degrees-and even them have been in a position to point out the things that Trump plenty of those without-saw the danger in Trump,s diatribes. can and can't do. But instead, all of them and many others in But many of his defenders convinced themselves that if Trump the White House with JDs became his enablers.

54 LITIGATION lllustration by Daniel Herlzbe(g overreach by . case is yet one more example of egregious assault on the rule of law has "This Since the inauguration, Trump's judge'" a ban a single, unelected district Making good on a campaign promise' he issued intensified. . undermines faith in our legal system' ' ' '" countries' When Judge "Today's ruling on travelers from several Muslim-majority and open bor- . this is a fight between sovereignty ban, Trump tweeted "Ultimately, James Robart ruled against the first travel and between between the rule of law and lawlessness' criticizing the "so-called judge"' attack- ders, to 5o million followers, and those who would undermine and spewing hardworking Americans ing the appellate court that affirmed the decision' that the their safetY and freedom'" .r.ro. at other federal courts reaching the conclusion ban was unconstitutional' job to review that white House Counsel Don McGahn's was judges continued to rule against Trump's travel As federal went out' But if he is telling Trump "what his enablers with statement before it ban, he lashed out further. And, disgracefully, that Trump listens' he can and can't do," there's little evidence law degrees defended his outbursts: of the Justice Professor Jack Goldsmith, a former member President George Department's Office of Legal Counsel for . "I think his tweet was perfect' ' ' '" and "If Kellyanne Conway: McGahn must be either incompetent then the presi- W. Bush, suggested that there are any politics in any judicial decision' that out'" or ineffective. dent and his people have a right to call judge sitting on an . Jeff Sessions: "I really am amazed that a that stops the presi- island in the Pacific can issue an order of the legal dent ofthe United States' ' ' If we members "' are very accus- . Mike Pence: "I think the American people tomedtothispresidentspeakinghismindandspeakingvery profe s sion esp eciallY straightwith them. . . ." - our Rules of Professional the litigators-do But wait. What happened to the Model Conduct? of and 'A lawyer should further the public's understanding jobs properly, our justice system because legal confidence in the rule oflaw and the depend on popular institutions in a constitutional democracy will surYive. states nation participation and support to maintain their authority"' its preamble. fall 2017' to a terrorist attack in during a lawyer from mak- In response How about Model Rule B'2, which forbids the suspect to Trump entertained briefly the idea of sending lawyer knows to be false or with reckless ing "a statement that the quick dispatch for the yet-to-be-tried the qualifications Guantanamo. Urging a disregard as to its truth or falsity concerning justice system as a suspect, he referred to America's criminal or integritY of a judge"? with law degrees "joke" a.rd a "laughingstock'" Trump's advisers Andwhatabouttheoaththateverylawyertakestouphold a rally crowd that remained silent, just as they did wl,en he told the way, the presidential oath includes that the Constitution? By suspects' he'd like to see the police get tougher on commitment, too. that was increasingly dangerous WhenaskedaboutTrump'sambivalent,ambiguous'andcon- As Trump advanced to terrain and neo- statements about white supremacist violence framework, his lawyer enablers followed' tradictory to the Constitution's said, "I stand with the president' federal funds Nazis in Charlottesville, Pence The first court to rule against his attempt to deny of an official and I stand bY those words'" to sanctuary cities found itself on the receiving end advisers raised a voice or a finger after a banana None of Trump's legal white House statement that read as if it had come from the usual multiyear analysis from the Justice free world: he acted without republic, not the beacon ofthe Joe Department and pardoned former Maricopa County Sheriff guilty of criminal contempt relating to his department's ."Today, suffered another blow' as an unelected Arpaio, the rule oflaw than notorious civil rights law violations' The was more judge unilaterally rewrote imnligration policy for our Nation' ' ' '" to Trump de- jails from turn- a finger in the judiciary's eye; it was tantamount . "Sanctuary cities, like San Francisco, block their that he is the law. And in May 2018, Pence heaped praise aliens to Federal authorities for deportation'" claring ing over criminal great friend of this Francisco' on then GOP Senate candidate Arpaio: 'A . "Once again, a single district judge' this time in San president, a tireless champion of strong borders and the rule of has ignored federal immigration law to set a new policy for law. Sheriff Joe Arpaio, I'm honored to have you here'" the entire countrY."

55 voL4s I NOI lFALL20l8 that C's 12, Sekulou'told AB election' On JulY statement' "The attacked a Presidential Don Jr.'s original there's Russia' which TrumP had no role in drafting Then a month after his he said. "The President democracY' Less than sign off on anYthing," the heart of American Pre sident didn't Todd of the Federal Bureau 16, he told NBC's Chuck TrunrP asked the director in that." On JulY inaugura tion, wasn't involved the president was time, Jame s ComeY, for "Personal want to be clear-that (FBl) at the the same thing: "I do of Investigation Sessions, comPlY- and did not issue get it. AttorneY Gene ral the drafting of the statement loyaltY" and did n't from not involve d in regulations' recused himself ing with Justice DePartment Trump the statement'" admitted that of disloYaltY for rvhich the White House Probe-an act Two weeks later, even the TrumP-Russia Yet, on he soldiered denials were not true. never forgave him' Se,kulow's earlier has h law degrees that he in FebruarY 2018, "sekulow told his advisers wit As rePorted When TrumP him for TrumP. hosts into a regu- were loYal and helped Promote talk-radi o show he to fire Comey' they turned the live weekdaY planned Mike Pence saw of the federal Probes into nu merous media rePorts' for trashing the legitimacy a lie. According to one de- lar forum r-a "rant," according to draft termination lette TrumP's Russia connections'" TrumP's did Donald McGahn' So Kushner saw it too. So scriPtion. Jared (JD,Harvard,'89)' did DePutY Attorney General endorsed and that-aP- the Rulc of Lau' the memo that Sessions Attacks on who then drafted (JD, NYU"6B)' anchored the false White Rosensteln''s later surPrise- Sekulow's co-counsel' parentl y to RepeatedlY, facts, truth, and re- firing on llf{.aY 9,2017' the awaY from cover story for ComeY's has sPun the press and Public House worked on Jefferson's maxim that Pence' and Priebus rePortedlY of law. DefYingThomas Kushner, McGahn, sPect for the rule elec- Kellyanne ConwaY took to dePends on an informed for the false narrative' functioning democracY talking Points himself went to a ProPerlY that "truth isn't truth" TrumP's lie. Pence August 2OlB statement airwaves and marketed torate, Giuliani's 2017 the General Rosenstein ConwaY's January DePutY AttorneY bookend to KellYanne Hill and said that was the Perfect a Capitol for the between, TrumP provided down and made the recommendation facts." In "came to work, sat invocation of "alternative and what would need new leadershiP' "What You're seeing to do its jo,b that it bridge connecting them: FBI to be able attorney thematic to the The happening." that recommendation President' reading is not what's He brought you're iness with what that recommendation." that it is. TrumP's unhaPP general concurred with ExcePt' of course, as- TrumP threw them un- is evident in his relentless for their Personal fealtY' seeing and hearing As a reward he the Public is with the meeting on MaY 10, told into Russia's interference In a te on the investigation der his bus. Priva d the head saults Mueller' minister, "I just fire included Sessions, Rosenstein' ambassador and foreign election. His targets have FBI Russia's great Pressure and even keY a real nut job. I faced of Justice, the FBI, FBI. IIe was crazY' ComeY, the DePartment of the daY' with NBC's that TrumP sPoke That's taken off." The next ComeY's testimonY because of Russia' witnesses who corroborate Michael ,lic. Rosenstein's recommendation national securitY adviser Holt, he went Pub to him about "letting fformer Lester because of "this and verbal abuse said He fired ComeY his rampages was irrelevant, TrumP Flynnl go." TrumP defends attack on the rule oflaw But lawyers know an Russia thing'" as "fighting back." wrath' Prioritizing the ,lers with law degrees nstein incurred TrumP's see it. So do his enab Then Rose appointed when theY the Trump- loyaltY to TrumP, Rosensteln TrumP has railed against rule of law over Personal For more than a Year' of so, it bagged a lot 7 3) as sPecial counsel' hunt''" If Mueller (JD, UvA' ' as a "witch Robert didn't Russiainvestigation his aPPointment' against Sessions and Rosenstein Only 10 months after TrumP's sudden turns warlocks in record time' j TrumP's attack team including (JD, Mercer,'80) from oining had secured 22 indictments' stoP JaY Sekulow Special Counsel Mueller and public debut. When the the Iran-Contra Sekulow had an unfortunate To that in Perspective' in June 2017. TrulnP five guiltY Pleas' Put about a June 9,2016, for more than four Years YorkTimeslearned in JulY 2017 investiga tions continued New J ar ed Whitewater (JD, Georgetown,' 7 4), efforts' meeting among less to show for their Tower asked and had a lot Mueller: several Russians, reporters weighed in on Jr'' and on MaY 10, 2018' Mike Pence Kushner, discussed Even so, In read, "We PrimarilY investigation began' Don Jr. about it' His first statement about a Year since this "It's been it uP'" adoPtion ofRussian children." I think it's time to wraP a program about the the interests of the country' of S taff Priebus called 12 Russian military On national television, Chief two months later, Mueller indicted OnlY and Nrational Committee episod e a "big nothingburger'" for hacking the Democratic 11, released ficers a his storY again and, on JulY time, he charged Then Don Jr. changed on Clinton's camPaign. At the same the meeting' They Promised "dirt" using the the emails that had led to conducting an influence camPalgn government's support sPY with "as of Russia and its to affect RePub lican Positions Part Rifle Association as a vehicle to that message: "I love it." of Mr. TrumP." Don Jr.'s response

56 LITIGATION then president of the American Trump campaign man- attack on Judge Curiel. Likewise, policies. In August, a jury found former Trump's of Trial Lawyers Bartholomew Dalton criticized guilty of and bank ' On the College ager eaul Manafort that found the original travel Michael Cohen ,"rporrr. to the federal court rulings ,urn" d.y, Trump's longtime personal lawyer finance ban unconstitutional. (JD, Cooley, '91) pleaded grrilty to violating campaign Mueller Butiftheruleoflawistosurvive,thecounterpunchesto and tax laws. Not counting Cohen (whose investigation must become pervasive, stronger' and more systematic' attorney in )' Mueller had Trump had referred to the U.S. confronting Trump's de- individuals That means publicly and persistently notched more than 100 criminal counts against 32 Yet' throughout it fenders when theY go astray' and three companies by the end ofAugust' point that all, Giuliani and sekulow repeated the Pence talking Mueller should "wraP it uP'" executive This is simply not a level playing field' The entire Respect for the rule of added power of a branch is subordinate to Trump, who has the chase his shiny formidable social media presence as mass media law is not a issue; who are just trying to Partisan objects. For law enforcement professionals that no one is dotheir jobs-upholding the fundamental principle the top has been immense' it's the legal above the law-the pressure coming from Profession's TheadditionaldemandsfromacompliantCongresshave has an ample sup- increased that pressure. In that body, Trump arlrmating force. Senator Lindsey ply of JD enablers too, including the voices of Carolina,'81) and Representative Jim Jordan t.rh"* (JD, South become complicit-or even dangerous Why does it matter? If lawyers (JD, University,'01)' In the face of Trump's Capital a wayward leader attacks the rule of other GOP mem- just acquiescent-when behavior, the pervasive silence of almost every Rosenstein is one positive law, so what? ber of Congress has been deafening' i But in the search example of resistance; at times, so is Sessions' and among con- for similar role models in Trump's inner circle Two Troubling Precedents Republicans, it's slim pickings' gressional are especially troubling' though not ev- Trump's assaults' At least two precedents Judges are similarly powerless to deal with Trump eryone sees them the same waY' Code of Conduct renders them mute' While The Judicial central players in the creation and preser- our system of govern- One, lawyers were freely violates the norms that underpin February World War II Japanese internment camps' In the rules prohibiting self-defense' vation of *.rr,, .1r'rdg., faithfully honor wrote Executive 1942, President Franklin D' Roosevelt's lawyers Who is left to Protect the rePublic? establishing the camps' A month later' Roosevelt past Section of Litigation Chair Order 9066 Look in the mirror. As 1944' six of ,.That signed legislation that gave it teeth' In December Pulgram observed: leaves to us, the lawyers, Laurence Court appointees sided with the gov- judges accused'" Roosevelt's eight Supreme the task to speak up on behalf of unfairly defense of the camps in Korematsu v' Ilnited States-a "When Attacks on Judges Go Beyond the Pale"' ernment's L. Pulgram, joined ranks of the rulings in the ABA has decision that has the ignominious 43 LTTIGATION I (Fall 2016). Pulgram notes that v. Sandford and P/essy v' Ferguson' state and local bar organizations to use in Dred Scott a guidebook for born of igno- and Some see that episode as an isolated incident dealing with such situations: "Rapid Response to Unfair regard it is a profound lesson about the That quick read is worth every rance and fear. Others Unjust Criticism of Juciges." powerful need for special vigilance at critical moments, lest a attorneY's time. helpless atinority' Either way' there is principles of the guidebook also apply to majority marginalize a The underlying or must little dispute about the objective outcome: However innocent the special counsel and his team. Like judges, Mueller well-meaning the motives may have been, the law operated as proceed secretly and cannot respond to Trump's vitriol' The a tool of oppression during a dark chapter in American history' public learns about his work only when a grand jury issues an And through both sins of omission and sins of commission' at- indictment or when Mueller issues a final report' Meanwhile' on torneys bore a significant share of the blame' he relies on the rest ofus to speak-not in his defense' but TWo, lawyers t-acilitated an even darker chapter of world his- behal f of the rule of law that he and his colleagues, as dedicated tory-Weimar German.v. When discussing Trump, some regard legal professionals, are trying to uphold' any invocation of the years when Adolf Hitler rose to porver as Some lawyers have risen to the challenge. To her credit, then permits them inlmediately to stop listening or ABA President Paulette Brown condemned Trump's verbal hyperbole that

57 voL 45 I NO 1 I FALL 2OlI . An attorney cannot follow a client's directive to aid or reading. "Things'uvere much different tl-ren," tl-re1' say' "That could abet criminal behavior. And an attorney cannot disregard a sworn never happen here." For others, Trump keeps rnarking boxes on oath to support the Constitution and the rule of law' any "dictator's checklist": stoking fear, demonizing opponents' shunning facts, attacking tl.re media, and seeking personal loyalty over respect for the rule of law. Prescrving the Rule of Law Any debate about comparisons between Trump and Hitler is ..Lawyers play a vital role in the preservation of society." So starts besicle the point. The issue isn't them; it's us' In a constitutional Model Rules of Professional Conduct. During the Trump era, democracy, how should the legal profession respond to a chief the preserving society means confronting head-on a president who executive who systematically attacks the rule of law? During veers dangerously off course. It means speaking out against his the 1930s, confronted that question, and as its democ- assaults on the rule of law-every single time' It means standing racy slid into oblivion, what were its la\ iyers doing? Some were and victims u'ho cannot stand up for themselves, greasing the skids. up for targets judges and the special counsel's team investigating po- As with Japanese internment camps in America, an essential including tential presidential crimes. It means remembering that, for most precondition r.r,as widespread public fear. The newly appointed us, our biggest impact occurs one person at a time' chancellor, Hitler, exploited the Reichstag fire as an act of do- of is neither the first populist nor the first demagogue mestic terrorism, a Communist plot to overthrow the country' Trump attack the rule oflaw in this country' Several years ago, for- From there, attorney fingerprints were all over the destruction to White House counsel (JD, Georgetown, '65) of democracy in GermanY. mer meeting of the Pennsylvania Association of Criminal One day after the Reichstag fire on February 27,1933,Nazi told a Lawyers that in assembling the names of participants leaders persuaded an aging President Paul von Hindenburg to Defense Watergate wrongdoing, he counted 21 attorneys' In addi- issue the Decree ofthe Reich President for the Protection ofthe in to himself and President Nixon (LL'B', Duke, '37), there People and the State, which suspended important provisions of tion White House Domestic Affairs Adviser the German constitution, especially those safeguarding individual were (LL.B., '51); Attorney General John Mitchell (LL'B', rights and due process of law. The days of a free and independent Stanford, White House Special Counsel press became numbered. Fordham,'38); (JD, Washington,'59); Nixon's personal attorney, Herbert A month later came the Law to Remedy the Distress of the George (JD, USC,'51); and Egil "Bud" Krogh (JD, University People and the Reich. Commonly known as the Enabling Act, Kalmbach who headed the "Plumbers" unit involved it allowed the German chancellor to promulgate laws that vio- of Washington, '68), lated the Weimar Constitution. On August 20,L934, a new Oath in the break-in. lawyers-especially litigators-who put the of t-oyalty for All State Officials required obedience to the na- Thanks to other self-interest, political affiliations, and per- tion's leader personally, rather than the German constitution' country above their most of those criminals with law degrees The Nuremburg Race Laws were enacted on September 15, 1935' sonal policy preferences, Hitler didn't draft decrees or legislation. Rather, it was his served prison time. of the legal profession-especially the litiga- lawyers-acting as enablers-who helped him dismantle the rule If we members jobs properly, nation will survive. And when of law. Without the active involvement of attorneys, he could not tors-do our our have met the chal- have turned the legal system against itself. A complicit legisla- the Trump era ends, the profession will from the tive body assisted and then became irrelevant. Through effective lenge that Benjamin Franklin posed when he emerged lawyering, the predator made Germany's legal apparatus his host Constitutional Conventio nin1787. "Well, Doctor," he was asked, he species. He created a justice system in which he alone was the "what have we got-a republic or a monarchy?" 'A republic," law to which all others swore personal loyalty. replied, "if you can keep it." Perhaps history does not r&peat itself. But sometimes it rhymes However the Trump presidency ends, future generations will in unsettling ways. On Malch 31,2016, Trump said, "Real power ask, "In the struggle to keep the republic, which side were you on?" is-I don't even want to use the word-fear." His manipulation of There is only one correct answer. And every lawyer knows it. . fear and his track record in the search for personal loyalty above all else speak for themselves. This isn't about whether everyone is entitled to legal counsel. That's sophistry, of course. No one disputes that attorneys must provide their best advice to clients and advocate zealously on their behalf. But those professional responsibilities have lim- its. An attornel, cannot knowingly permit a witness to commit

58 LITIGATION