Skip to content
Search

Latest Stories

Top Stories

It’s time to defend the guardrails of democracy

Opinion

It’s time to defend the guardrails of democracy

A gavel.

Getty Images, Alexander Sikov

Lawyers know that President Trump’s executive orders targeting individual law firms, and now, the entire legal profession, are illegal and unconstitutional. The situation puts a choice to every lawyer and every law firm. Do you fight – speak out and act out against this lawless behavior? Or do you accommodate it, keep your head down, and wait for the storm to pass?

The answer is to fight. Here’s why – and here’s what lawyers should do.


Our system of government is rooted in the principle that government power is constrained by guardrails. Whether legal, constitutional, or simply norms of behavior, these guardrails are so clear that few Americans disagree with them: government power is constrained by the courts; free speech is sacred; Congress gets to decide how money is spent; law enforcement decisions are made through a rigorous process, not political whim; government officials must tell the truth and follow the law.

These guardrails are not self-enforcing. All citizens have a role to play in enforcing these principles but lawyers have a special duty. For the privilege of entering this profession, lawyers swear an oath to protect the Constitution. And that means when the government is crashing through these guardrails, lawyers have an obligation to act – and to take sides.

Paul, Weiss is an example of a firm that has failed to live up to this standard. After being hit with an illegal and unconstitutional executive order, trying to put the firm out of business, the firm decided that instead of fighting, it would cut a deal requiring it to provide $40 million in free legal representation to causes identified by President Trump and to make other major changes in its operations. The leadership of Paul, Weiss decided that its highest duty was to stay in business.

Other firms and attorneys are in the fight. For example, Williams & Connolly is representing Perkins Coie, as it deals with another illegal and unconstitutional executive order targeting it. This is an act of principle and courage, as Williams & Connolly will likely face a fate similar to their client’s. Or look to the example of the young associate from Skadden who had everything to lose but decided her principles mattered more than her job.

Far too many law schools and their leaders seem to be trying to avoid confrontation. But these institutions, which teach the Constitution, the rule of law, legal ethics, and lawyers’ duty to preserve and protect a system of law focused on justice and fairness, don’t get to sit silently when those very principles are under attack. They have an obligation to set an example. It is past time for these leaders to speak out against this behavior, to call out their alumni who are acting this way, and to even revoke their degrees.

Individual lawyers and ordinary citizens also must act. If you’re an attorney at a firm that won’t live up to these sacred principles, there are other firms that will hire you. If you’re a company with business with a firm that isn’t living up to these standards, consider moving your business to one that does. And if you’re an alumni of a law school that has stood on the sidelines, demand action, and stop donating.

Above all, the message must be clear. The government cannot break the law and it cannot violate the Constitution. As lawyers, we swear an oath to represent our clients with zeal. The Constitution and the rule of law deserve the same representation. In the end, if lawyers won’t speak out now, when their profession is under an illegal and unconstitutional attack, when will they? If lawyers won’t fight for themselves, who will? And if lawyers cave in, who will be left to fight for the rest of us?


Evan Falchuk is the chair of the executive committee of Lawyers Defending American Democracy.

Read More

Shadow on a wall of Judge hitting gavel in court, concept of justice, law, and legal protection

DOJ lawsuits in Alaska and California preview post-Election Day fights over certification and seating winners. Here’s how officials and voters can prepare.

Aitor Diago / Getty Images

The Lawsuits Will Lose. The Delays Will Still Win.

Less than two weeks before Election Day, President Trump’s Justice Department asked a federal court to stop Alaska from certifying its U.S. Senate race if Republican Sen. Dan Sullivan loses to Democrat Mary Peltola. The lawsuit claims that a second candidate on the ballot, Daniel J. Sullivan, will confuse voters. That argument went nowhere in June, when the Alaska Supreme Court ruled that the state had no legal way to remove him from the ballot. Asked about the suit, the president took credit. “I’m the one that said do it,” he told reporters.

Alongside the Alaska suit, the Trump administration sued California to keep the state from counting mail ballots from 20,000 people it calls “likely” noncitizens. Over the summer, the Department of Homeland Security put that number at 190,000. Legal experts expect both suits to fail, as so many suits like them have. Still, Alaska and California give us an early look at what the weeks after November 3rd could bring: recount demands, calls to review or throw out ballots, and pressure to delay seating winners.

Keep ReadingShow less
Shadow on a wall of Judge hitting gavel in court, concept of justice, law, and legal protection
The Rule of Law depends on action, not blind optimism. Explore how critical hope, civic engagement, and accountability can strengthen democracy.
Aitor Diago / Getty Images

The Law Was Supposed to Be a Shield. I Found the Bars.

I used to believe that learning the law meant learning the architecture of protection.

I believed statutes existed because someone, somewhere, had anticipated injustice and decided certain lines should never be crossed. I believed due process meant power could not simply declare itself correct. I believed whistleblower protections, grievance procedures, public-records laws, administrative review and courts formed a structure designed to restrain institutional misconduct.

Keep ReadingShow less
​Christa Pike

Christa Pike in an undated photo.

(Tennessee Department of Correction/ZUMA Press/TNS)

How death penalty opponents share the blame for botched executions

“Botched” is a perfectly fine word for golf, cooking, or home repair. It seems inadequate for the taking of a life, even the life of Christa Pike, a heinous murderer.

In 1996, a jury found Pike guilty of the torture and murder of her Jobs Corps classmate, Colleen Slemmer. Pike was sentenced to death. In the 30 years since, her case has gone through at least seven major rounds of appeal and judicial review, including four petitions to the Supreme Court. All were rejected. This doesn’t even include the many more attempts to reopen or reverse her sentence that went nowhere. She is guilty, lawfully and rightly convicted.

Keep ReadingShow less
A solemn portrait of a woman looking down, bathed in dramatic light and shadow from window blinds, emphasizing solitude and deep thought in monochrome.

After the Lindsay Clancy mistrial, we must confront postpartum mental illness and ask how to better support mothers before tragedy strikes.

Viktoriya Skorikova/Getty Images

The Questions We Should Be Asking About the Lindsay Clancy Case

Three children are dead.

Nothing that follows should ever diminish that heartbreaking reality.

Keep ReadingShow less