We are a nation of laws where political leaders peacefully transition the power of government, where disputes about elections are played out in the courts with words and logic, not with weapons. Lawyers built this system. And lawyers give it life.
When I was installed as FBA president in Atlanta last September, I remarked that our country may well be at a crossroads in its history. There is political turmoil. More and more of our judges are personally criticized or attacked by those who disagree with their rulings. The rule of law and the independence of the judiciary are being challenged.
A year later as I end my term, my concerns for our country’s traditional reliance the rule of law has only grown. After the recent convictions of President Donald Trump’s personal lawyer, Michael Cohen, and his campaign manager, Paul Manafort, we saw the president criticize the judicial process, claiming that the Department of Justice (DOJ) prosecuted and our federal court system condoned convictions for violations of law that were not really crimes. He then praised Manafort for refusing to “break” and cooperate with the federal investigators who are charged with enforcing the law. I see these attacks on our independent federal law enforcement agencies as but a part of the larger denigration of the American justice system. This includes an interview last week, in which the president criticized Attorney General Jeff Sessions (who was a key figure in the Trump campaign) for recusing himself from the Russia investigation and referred to our nation’s law enforcement system as the department of “justice.” (In an interview with “Fox & Friends,” President Trump said, “I always put ‘justice’ now with quotes” because he believes the DOJ is corrupt.1) By the time this message publishes, I suspect this will be old news, and we will have seen further developments that cause these examples to slide into the haze.
Our FBA is a big tent organization. Our stated agenda involves supporting our courts, the rule of law, the independence of the judiciary, and those who comprise and serve the Third Branch. We have avoided partisan politics. Determining where the line is between defending our constitutional ideals and “politics” can be difficult, but we know that line has been crossed when one branch of government seeks to undermine trust in our courts and in the rule of law. That is happening today.
When Sen. John McCain passed away recently, we were reminded of his conduct on the presidential campaign trail, especially one incident where a voter called his opponent’s character into question. Although it was against his partisan interests to do so, Sen. McCain told the voter that she was wrong and that his opponent was a decent family man and citizen. Rather than accept her statement for political gain or expediency, he corrected the underlying precept. We must do the same. Whether we support or reject the president’s policies, we must vociferously object each time he, or any other leader, makes statements intended to erode faith in our courts. Yes, argue for the policy of your choice—but not at the expense of the rule of law.
I believe that “history is happening”2 right now and that we are once again at a critical time in our nation’s history when lawyers are in a position to make a difference. Lawyers have a responsibility to our democracy and to our society to fulfill the expectations of leadership that we accepted when we entered the profession. We have a responsibility to educate others about our Constitution and our judicial system. We have a duty to lead by example and to show our fellow citizens how to engage in civil debate, how to make evidence-based decisions, and even how to adjust our opinions and decisions when new evidence comes to light. We have a duty to defend that system and its judges from those who attack it—to teach our fellow citizens that the courts are not just another political body. We have a duty to defend the rule of law.
We are privileged to be lawyers in a nation of laws. But it will only remain so if we do our duties as lawyers to defend it.
1 Ainsley Earhardt Interviews President Donald Trump, YouTube (Aug. 23, 2018), https://www.youtube.com/watch?v=RuwK1QipDDg.
2 Phillipa Soo et al., The Schuyler Sisters, on Hamilton (Original Broadway Cast Recording) (Atlantic Records 2015).