The Lawyer's Oath and the Rule Of

point of view By Lisa E. Davis Lisa E. Davis is a partner at Frankfurt Kurnit Klein & Selz who protects the First Amendment rights of authors, playwrights, filmmakers and journalists as a transactional entertainment lawyer. She blogs about law and activism in the Trump era at www.journaloftheplagueyears.com. The Lawyer’s Oath and the Rule of Law he Rule of Law dates back to at tions afforded to citizens by our Consti- probably thought about the meaning of least the Magna Carta of 1215. It tution. Many have argued that Trump those words since we recited them with is the foundational principle of violated the “Emoluments Clause” of raised right hands many years ago, now T 3 our Republic, best expressed by Thomas Article II since his first day in office. His is the time for us to recognize that the Paine, who said, “For as in absolute intemperate calls to send accused terror- words we affirmed to become members government the King is law, so in free ists to Guantanamo evince his ignorance of the bar are more than a talismanic countries the law ought to be king; and of the Sixth and Eighth Amendments. phrase devoid of meaning. They confer there ought to be no other.”1 What stands out most during Trump’s an obligation. In the United States, the principle tenure, though, is his relentless attack on Whether by responding to the Mus- of adherence to the Rule of Law is the rights guaranteed by the First and lim ban by flooding the airports armed expressed in our Constitution, the archi- Fourteenth Amendments. with nothing more than laptops and tecture from which the edifice of our Trump’s fundamental lack of under- Lexis passwords6 or volunteering at clin- democracy was built. Although the Con- standing of the relationship between a ics to assist DACA recipients with the stitution was decidedly imperfect at its free press and a functioning democracy documentation required to remain in inception, in denying African Americans was evident in his very first press confer- the only country they have ever known, any measure of humanity or women the ence after the election. Trump refused to New York lawyers have been answering full rights of citizenship, its enduring take a question from CNN’s Jim Acos- the call and showing that we under- strength is evidenced by the fact that ta, calling the network, “fake news.”4 stand that to “support” the Constitution brilliant lawyers used the selfsame tool Trump berated the “dishonest media” means to “uphold or defend” it as “valid to correct those glaring oversights and for accurately reporting his equivoca- or right.” push our country to live up to its credo tion on the character of the Nazis who Benjamin Franklin famously that “all men are created equal.” marched in Charlottesville.5 quipped that the Founders had cre- The articles and amendments of our In its brief duration, the Trump ated “a republic, if you can keep it.” As Constitution are the guardrails of our administration has also promoted poli- lawyers, we must recognize our pivotal civil society. We must recognize that cies that make a mockery of the Four- role in answering Franklin’s challenge. challenges to the legitimacy or univer- teenth Amendment guarantee of equal At a time when those in government sal applicability of our Constitution are protection of the laws. Virtually every abandon their obligation to uphold the challenges to the Rule of Law itself and policy initiative has involved singling Constitution, lawyers must step into the treat them as such. We have treated the out categories of Americans for differ- breach and advocate, not only for our Rule of Law as something unchangeable ential and punitive treatment under the clients, but for the Rule of Law itself. n that we don’t have to work to maintain. law. From the travel ban that numerous The events of the last year should have courts found to be a fig leaf for anti- 1. thomas Paine, Common Sense. shaken us all out of our complacency. Muslim animus, to the transgender mili- 2. U.S. Const., art. I, § 1. Last November, for the first time in tary ban, to the withdrawal of protection 3. eric Lipton and Adam Liptak, Foreign Payments to Trump Firms Violate Constitution, Suit Will Claim, modern history, the United States elect- from the Dreamers, the policy agenda N.Y. Times, Jan. 22, 2017, A18. ed as president a non-lawyer who has of this administration seems to be to 4. Dylan Byers, Donald Trump attacks press, conflates never demonstrated an understanding establish classes of Americans entitled CNN, BuzzFeed reporting at news conference, CNNmed- of, or a reverence for, the Constitution or to less legal protection than others, in ia, Jan. 11, 2017, http://money.cnn.com/2017/01/11/ media/sean-spicer-mike-pence-donald-trump-press- the Rule of Law. To the contrary, Donald direct contravention of the Fourteenth conference/index.html. Trump’s constant derision of the press as Amendment. 5. Brian Naylor and Tamara Keith, Trump Defends “fake news” is evidence of his antipathy As Americans, this should unnerve Charlottesville Comments At Phoenix Rally, by NPR.org, to the First Amendment. us. As attorneys, this should spur us Aug. 22, 2017, https://www.npr.org/2017/08/22/ 545226284/trump-heads-to-arizona-to-push-border- Despite having taken an oath to “pre- to act. Regardless of our practice area, wall-funding-rally-supporters. serve, protect and defend the Constitu- or whether we serve in public office, 6. Dahlia Lithwick, The Lawyers Showed Up, by 2 tion of the United States,” Trump rou- each of us took an oath to “support the Slate, Jan. 28, 2017, http://www.slate.com/articles/ tinely displays what could most charita- Constitution and the laws of the State news_and_politics/jurisprudence/2017/01/lawyers_ bly be framed as ignorance of the protec- of New York.” Although few of us have take_on_donald_trump_s_muslim_ban.html. NYSBA Journal | January 2018 | 43