The American Legal Profession is "Facing a Moment of Truth"
"The crucible of fear burns away impurities to their single essential element -- courage or cowardice"
By Robert B. Hubbell Today’s Edition
Americans who seek to defend the rule of law should take heart from a flurry of judicial rulings last week that have checked many of Trump’s unconstitutional efforts to dismantle the federal government and break the legal profession.
Before reviewing the judiciary's efforts to impede and reverse Trump's slow-rolling coup, I address the existential crisis faced by the American legal profession.
As in most crises, the crucible of fear burns away impurities, refining hearts and souls to their single essential element—courage or cowardice. The legal profession is experiencing a painful sorting process that is revealing the true character of lawyers and law firms.
Fortunately, to date, Trump’s blast furnace of corruption and vengeance has produced more heroes than cowards. However, two firms that have been revealed as unalloyed cowards occupy the pinnacle of the legal profession: Paul Weiss and Skadden Arps.
We are witnessing a struggle for the soul of the legal profession, and the outcome is in doubt. We must do everything we can to support and defend the legal profession, so that it can support and defend the Constitution and the rule of law.
A moment of truth. The American legal profession faces a moment of truth. It must answer this question:
Is the legal profession part of the fabric of a justice system rooted in the Constitution or is it a collection of warring tribes and clans whose only allegiance is to profit?
Paul Weiss and Skadden Arps have declared their allegiance to profit.
There is no going back. They have forever marked themselves as interlopers who pose as lawyers but who “lack all conviction.” (Yeats.) Because of their privileged position atop the legal profession, their hasty surrenders have imperiled other firms by emboldening Trump, suggesting that the leaders of all law firms are easy marks with no self-respect.
Trump is wrong.
At a fundamental level, Paul Weiss and Skadden Arps have betrayed the legal profession. Lawyers of conscience at those firms should reconsider their affiliation with Paul Weiss and Skadden Arps, or work to oust current leadership and reverse their shameful “articles of surrender” to Trump.
The good news is that a growing cohort of courageous firms is challenging Trump in court--and winning. Perkins Coie, Covington & Burling, Jenner & Block, and Wilmer Hale have defied Trump's executive orders, with three of the four obtaining injunctive relief against Trump's lawless edicts. See: Time, What to Know About the Law Firms Targeted by Trump.
Other firms have come to the aid of the targeted firms, including Cooley LLP and Williams & Connolly.
Still other firms continue to sue the administration in the face of threats, including The Elias Law Group; Munger Tolles & Olson; Gibson Dunn; Hogan Lovells; Ropes & Gray; Arnold & Porter; and Milbank. See The ABA Journal: Which BigLaw firms and big-name lawyers are involved in suits against Trump administration?
Professional pushback. The cowardice of Paul, Weiss and Skadden Arps has ignited a small but righteous pushback among associates in the legal profession.
Rachel Cohen, a Skadden associate who resigned from the firm in protest, has put together a “Toolkit for Associates” that seeks to influence firms to make the right decisions. And thousands of associates have signed a letter asking their big firm employers to stand up to Trump. See The Telegraph: Junior lawyers revolt after bosses bow to Trump ‘intimidation’.
The legal profession is facing a moment of truth. If it collapses, the consequences could be disastrous for democracy. If it stands, it will illuminate the path forward for individuals, universities, and businesses of conscience.
Never before in the history of the profession has a choice been so significant for the future of our democracy.
Every lawyer in America is being called upon to make a choice about who they are and what interests they serve. It is a personal choice, even for lawyers in megafirms.
Upon entering the legal profession, every lawyer took an oath to support and defend the Constitution. That oath should serve as the touchstone of their decision.
Latest legal developments. Last Friday, federal courts continued to resist Trump's lawless efforts to override congressional authority and dismantle the federal government.
A federal judge granted a temporary restraining order against Trump's executive order targeting the law firm of Wilmer Hale. See CNN: Judges block Trump executive orders targeting law firms tied to Mueller probe.
A federal judge granted a temporary restraining order against Trump executive order targeting the law firm of Jenner & Block. See Reuters: Judge blocks 'disturbing' Trump executive order against law firm Jenner & Block.
A federal judge granted a temporary restraining order against the dismantling of the Voice of America. See: The Hill, Federal judge temporarily blocks dismantling of VOA.
A federal judge temporarily blocked the deportation of a Tufts student whose visa was secretly revoked by Marco Rubio before her kidnapping-style arrest on the street. See: ABC News, Deportation halted for student whose visa Rubio says was revoked due to activism.
But Trump secured a victory in the Fourth Circuit Court of Appeals, which ruled that Musk’s role in dismantling USAID did not violate the Appointments Clause of the Constitution. See: The Hill, Appeals court enables Musk to resume cuts at USAID.
The narrow decision does not address the fact that Trump has no authority to abolish an agency created and funded by Congress. Although Trump will eventually lose, he will cause hundreds of thousands of deaths due to starvation and preventable diseases.
Institutions obeying in advance. I buried the lead about Skadden Arps.
Unlike Perkins Coie, Jenner & Block, and Wilmer Hale, Trump did not issue an executive order targeting Skadden Arps. It surrendered in advance of any such order, promising to provide $100 million in pro bono legal services as directed by an aspiring dictator. See HuffPo: Law Firm Skadden Chooses To Surrender To Trump.
Harvard University terminated the leaders of its Middle Eastern Institute, bowing to pressure from Trump to make way for Republican orthodoxy in the university’s curriculum. See New York Times: Leaders of Harvard’s Middle Eastern Studies Center Will Leave.
The Times reports:
The executive committee of Harvard’s chapter of the American Association of University Professors condemned “the abrupt termination” of the center’s leaders in a statement.
“In the context of recent events, the decision appears to be a shameful attempt to escape punishment from the Trump administration for engaging in academic discussions about topics the president disfavors,” the statement said. “These firings cede the university’s decision-making authority to bullies and bad-faith actors committed to silencing speech with which they disagree.”
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