You needn't be particularly concerned for any part of the legal profession. You should be concerned for the rights and freedoms of yourself and whomever you care for. One day, even you or they might want or need the representation of a lawyer or a law firm.
It's also well worth bearing in mind the wise reminder by Justices Stevens, Blackmun and O’Connor in their dissenting opinion in United States v. Alvarez-Machain, 504 U.S. 655 in 1992:
"As Thomas Paine warned, an 'avidity to punish is always dangerous to liberty' because it leads a nation 'to stretch, to misinterpret, and to misapply even the best of laws.' To counter that tendency, he reminds us:
'He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes [permits] a precedent that will reach to himself.' "
We ignore and permit violations of our Constitution by our public servants at our own great peril.
It's also worth bearing in mind the reminders of SCOTUS in Lowe v. SEC, 472 U.S. 181, 205 (1985) quoting Lovell v. Griffin, 303 U.S. 444, 452 (1938):
"The liberty of the press" (the freedom of speech and press) "necessarily embraces pamphlets and leaflets[, which] have been historic weapons in the defense of liberty, as the pamphlets of Thomas Paine and others in our own history abundantly attest. The [freedom of the] press [protects] every sort of publication which affords a vehicle of information and opinion …. [Courts should emphasize] the vital importance of protecting this essential liberty from every sort of infringement."
The court filings and arguments (speech and petitions) of lawyers and law firms are protected as strongly by our Constitution as Paine’s pamphlets.
Leonard Levy in a 1999 book that is very well worth reading these days (Origins of the Bill of Rights) emphasized crucial truths about our First Amendment rights and freedoms. Sadly, such self-evident truths have become, as John Stuart Mill put it, "dead dogma." Too often too many speak and think of the First Amendment as if its scant words somehow created or defined the freedom of speech and press and the right to assemble and petition. Levy highlighted the egregious error of such thought and speech.
"In a sense, the constitutional guarantee of freedom of the press" and speech and the rights to assemble and petition "signified nothing new. It did not augment or expand freedom of the press" and speech or the right to assemble and petition government. The First Amendment's declarations regarding the freedom of speech and press and the rights to assemble and petition the government merely "recognized and perpetuated an existing condition."
Clearly, well before the First Amendment was written or ratified, our original Constitution established that all "Government in the United States derived from the people, who reserved a right to alter it, and [all] government was accountable to the people. That required a broader legal concept of freedom of the press" and speech than existed previously. "Thus freedom of the press" (and speech) "meant the right to criticize harshly the government, its officers, and its policies as well as to comment on matters of public concern."
"The scope of the amendment," most fundamentally and crucially, "is determined by the nature of the government and its relation to the people." Absolutely all American "government is the people's servant, exists by their consent and for their benefit, and is constitutionally limited" by the people and is "responsible" to the people. Our Constitution confirmed that in America, the people are the only true "sovereigns;" the people are not the "subjects" of any "master." The "protections" of our Constitution are "indispensable" for "the development of free people in a free society;" they "are not to be the playthings of momentary majorities" or of any public servant in any branch of any level of government.
Arguing that Americans should "leave counsel alone" goes too far. Lawyers are judicial officers (officers of the court). Every lawyer (admitted to practice before any court) swore (at least once) to support our Constitution. That oath is required of by our Constitution (Art. VI) of absolutely "all executive and judicial Officers" (federal and state). Lawyers are not (and should not be) any more immune than judges from criticism or other instruments of accountability.
In Landmark Commc’ns, Inc. v. Virginia in 1978, SCOTUS emphasized that “the law” (including the First and Fifth Amendments) “gives judges as persons, or courts as institutions” absolutely “no greater immunity from criticism” (or our Constitution) “than other persons or institutions.” Our “speech cannot be punished” merely “to protect the court as a mystical entity” or “judges as individuals or as anointed priests set apart from the community and spared the criticism to which” all “other public servants are exposed.”
I have no problem with anyone exercising their 1A rights. I have a big problem with criticizing attorneys based on their clients (although that has 1A protection, it's wrong) or, even worse, sanctioning based on the same (which is not protected by the 1A).
Even an axe murdering child rapist deserves competent counsel willing to use every legal means to get the best outcome for their client. Interfering with that is a 6A violation.
"If the administration felt that opposing lawyers were filing briefs that they knew or should have known did not hold merit, the administration should have sought sanctions from the judge in the case and potentially from the state bars that license those attorneys."
I have no idea how you could possibly have written that with a straight face given some of the judges involved and the conduct (and severe partisanship) of the Bar.
Let's not mince words. They DID file briefs they knew, or would have known if they did their jobs properly, did not hold merit, and they did so knowing full well that there would be zero accountability for doing so from the judges or the Bar.
This is not an attack, this is ACCOUNTABILITY. If you genuinely think that such accountability would or could come from any other source, I want to see the receipts where that's actually HAPPENED. I see a protected class that unethically (and in many cases, illegally) abused their positions to misuse and abuse the law in a manner more commonly associated with a banana Republic to support what amounts to a soft coup. They engaged in persecution moreso than legitimate prosecution. This administration is actively trying to address this corruption and malfeasance.
Yes, we need independent lawyers who can defend unpopular clients and prosecute popular defendents, but we also need lawyers to actually follow the law and ethics demanded of the profession. You don't protect the former by refusing to enforce the latter.
"If you genuinely think that such accountability would or could come from any other source, I want to see the receipts where that's actually HAPPENED."
AFAICT Trump never sought sanctions from the judge nor filed complaints with the bar, so the claim that they would not have faced any sanctions is a counterfactual.
Your example is nearly two decades old, does not involve political partisanship, malicious prosecution, or other forms of lawfare and weaponization of the legal system for political purposes. Bluntly, it's irrelevant, and if that's that best you could come up with you've rather supported my point that lawyers haven't been upholding their ethical standards for a long time.
This is not a counterfactual, it is a reality of how a profession is supposed to work: they are supposed to be self-policing in order to retain the confidence of the public. A judge does not need to receive a complaint to act on malfeasance brought before him, he's derelict in his duty if he does not act. Likewise, the Bar has the responsibility to enforce their own professional standards on their members. They failed to do so. This is like arguing that an Internal Affairs office can't police their own organization without an outside complaint.
Steven, to use your words, "I have no idea how you could possibly have written that with a straight face . . . This is not an attack, this is ACCOUNTABILITY."
The actions of Trump and other executive officials here are blatantly and dangerously unconstitutional. Please consider my detailed comments regarding FIRE's So To Speak podcast No. 235 with Ilya Shapiro. There, I addressed very similar violations of our Constitution. Then and now, federal officials retaliated against individuals and associations merely because they were associated (even extremely loosely) with other people who previously exercised our freedom of expression and freedom of association. Such retaliation violates our Constitution regardless of whether it is perpetrated by Trump and other executive officials or federal (or state) judges.
This is not a valid argument. Even the article here notes that the administration has been explicitly clear about their reasons for taking action and in each case the reason given is a matter of professional misconduct, not speech or expression, and the institutions on the receiving end have responsibilities regarding the professional conduct of their members. You can't hand wave away illegal or professionally unethical conduct with an appeal to freedom of expression. Bluntly, this shouldn't even be a topic for a FIRE article because none of these cases involve 1A rights.
Steven, you contended that "in each case the reason given is a matter of professional misconduct, not speech or expression." "This is not a valid argument," as you put it. Please consider the self-evident truth that opponents of the freedom of speech and press and the rights to assemble and petition often give their unconstitutional oppression a respectable-sounding label and they often give their victims an evil-sounding label. A wise and unanimous SCOTUS being faithful to our Constitution said this about such labels:
"In deciding the question now, we are compelled by neither precedent nor policy to give any more weight to the epithet ‘libel’ than we have to other ‘mere labels.’ "
"Like insurrection, contempt, advocacy of unlawful acts, breach of the peace, obscenity, solicitation of legal business, and the various other formulae for the repression of expression that have been challenged in this Court, libel can claim no talismanic immunity from constitutional limitations. It must be measured by standards that satisfy the First Amendment."
Here, the label "professional misconduct" is no more compelling than "the various other formulae for the repression of expression" identified by SCOTUS. The government retaliation and discrimination at issue must be measured by standards that satisfy our Constitution.
Public servants "cannot foreclose the exercise of constitutional rights by mere labels." NAACP v. Button, 371 U.S. 415, 429 (1963). Mere "abstract discussion is not the only species of communication which the Constitution protects; the First Amendment also protects vigorous advocacy [by lawyers, law firms and litigants], certainly of lawful ends, against governmental intrusion." Id. Clearly, our Constitution and SCOTUS precedent emphatically "affirmed the right" to "engage in association for the advancement of beliefs and ideas." Id. at 430. "Our form of government is built on the premise that every citizen shall have the right to engage in political expression and association. This right was" even expressly and emphatically secured "in the First Amendment of the Bill of Rights." Id. at 431.
Courts (much less mere judges acting individually or collectively or even the president) “may not prohibit” constitutionally-protected “modes of expression and association” by merely invoking the general “power to regulate the legal profession.” Id. at 428-429. “[I]t is no answer” that “the purpose of” any “regulations” (court rules or rulings, judges' letters or executive orders or memoranda) “was merely to insure high professional standards.” Id. at 438-439. First Amendment “liberties,” including “speech, press, or association” are “indispensable.” Id. at 439. Courts and presidents “may not, under the guise of prohibiting professional misconduct, ignore” (knowingly violate) “constitutional rights” (as they did). Id.
In New York Times Co. v. Sullivan, a unanimous SCOTUS quoted Madison regarding our First Amendment rights and freedoms to emphasize the same point as Leonard Levy did in another of my comments regarding this post. "Madison" emphasized "that the Constitution created a form of government under which ‘The people, not the government, possess the absolute sovereignty.’ The structure of the government dispersed power in reflection of the people’s distrust of concentrated power, and of power itself at all levels." Clearly, "the nature of [our] Republican Government" dictates "that the censorial power is in the people over the Government, and not in the Government over the people."
Also not an argument, unless you are taking the facially absurd position that "professional misconduct" is literally impossible to regulate in the legal profession, which is clearly nonsense.
The government has not here ignored or knowingly violated constitutional rights. You attempting to mislabel professional misconduct as free expression or association is not an argument. None of these cases have so much as implicated Freedom of Speech, Expression, or Association. These aren't 1A cases in any way, shape, or form. No protected form of expression is threatened.
Steven, I think I understand your concern. Are you concerned that labels such as "speech," "assembly" or "petition" should not immunize from all scrutiny (all regulation) all expression, communication and association? If so, I agree. No mere label should end any inquiry.
All forms of expression, communication and association are PROTECTED by our Constitution, but no form of expression, communication or association is completely IMMUNIZED from all regulation. All litigation entails exercises of freedoms of speech and press and freedom of association (right to assemble), and (if directed at government action, then also the right to petition). Yet, all litigation is subject to copious regulation (including in court rules governing procedure, evidence and professional conduct).
I also agree with SCOTUS about the process of law that is due because government power irrefutably is being used (by POTUS) against people because they engaged in expression, communication, petitioning the government and associating with each other.
One of the best opinions SCOTUS justices ever wrote about the relationship of the people to public officials was New York Times Co. v. Sullivan, 376 U.S. 254 (1964). Another was Citizens United v. FEC, 558 U.S. 310 (2010). Both emphasized that "the people" are the only sovereign in America. Those opinions also shed light on how the sovereignty of the people determined the freedom of speech and press and freedom of association. The sovereignty of the people means, most fundamentally, that all public officials are public servants. Trump is not our ruler. He is our representative. His conduct is governed by our Constitution.
Two of the best decisions I've seen SCOTUS justices write securing rights were District of Columbia v. Heller, 554 U.S. 570 (2008) and N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022). They're not merely about guns. They're more generally about the sovereignty of the people, about what American citizens have the right to do for self-defense or self-preservation, and about due process of law protecting such rights.
An “Amendment’s plain text covers” the conduct at issue, so “the Constitution presumptively protects that conduct.” Bruen at 17. Government always must “justify” any “regulation” thereof, i.e., “must demonstrate” (prove, not merely contend) that regulation was “consistent with this Nation’s historical tradition” of protecting speech/petitions/association. Id. Government always “must affirmatively prove that” its regulation of expression, communication and association is within this nation’s “historical tradition” of protecting speech/petitions/association within “the outer bounds” of each “right.” Id. at 19.
As SCOTUS put it in Speiser v. Randall, 357 U.S. 513, 528-529 (1958), whenever “the constitutional right to speak” is “deterred by” invoking any “general” rule, “due process demands that the speech be unencumbered until” government presents “proof to justify its inhibition.” POTUS must prove that he's not abridging the freedoms of expression, communication and association. He cannot merely allege "professional misconduct" or "national security" in executive fiat (executive orders or memoranda).
I find your attempt to draw a dichotomy between 'protected' and 'immunized' to be an unclear distinction. Suffice it to say that I am a strong advocate in favor of Freedom of Speech, Expression, and Association, but recognize that not all forms of those things are wholly that and may (even must) be regulated on the basis of what they are ALSO, such as commercial speech being subject to fraud regulation precisely because it is a commercial activity, not purely speech, therefore it is NOT necessarily "protected speech" in the sense of 'Free Speech'. A defendent who commits fraud in an advertisement cannot defend that commercial conduct by appealing to the 1A. It's not a 1A case at all, it's a commercial case. In short, these are not labels that may be used to excuse otherwise subject conduct from being subject, which very much appears to be the argument that FIRE, and you, have advanced here. Bringing frivolous cases unwarranted by fact or law for the improper purpose of harassment and imposing delays and litigation costs upon the defendent is NOT protected by the 1A (even when the defendent in question is Trump or the federal government). Nor is it protected by the Right to Petition for a Redress of Grievances, which still requires that the petitioners must actually HAVE a legitimate grievance under the law.
For example, is Rule 3.1 unconstitutional? Is this in ANY way a violation of the 1A?
"A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law."
I am of the opinion that Perkins lawyers violated this rule.
Likewise, is Rule 11(b) unconstitutional?
"(b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:
(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;
(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.
Again, I believe that the Perkins lawyers violated this Rule by engaging in legal advocacy that they KNEW was frivolous, unwarranted, and presented for improper purpose of harassment and cost of litigation.
Yet despite this, you have argued that the rest of the firm and its employees and contacts ought not be affected? This is inconsistent with the Rule itself.
(c) Sanctions.
(1) In General. If, after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated, the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation. Absent exceptional circumstances, a law firm must be held jointly responsible for a violation committed by its partner, associate, or employee.
I will repeat that last sentence with relevant emphasis: Absent exceptional circumstances, a law firm MUST be held JOINTLY responsible for a violation committed by its partner, associate, or employee.
I contend that the sanctions that the Trump administration has attempted to impose ARE 'an appropriate sanction' against 'any attorney, law firm, or party that violated the rule', therefore entirely constitutional.
Steven, if you speak with specificity, you can see what is "facially absurd." Specifically what misconduct did any current Perkins Coie or Susman Godfrey attorney commit? How are current Perkins Coie or Susman Godfrey attorneys being punished for anything other than associating with those firms or with other attorneys or certain clients or speaking for clients? Specifically what misconduct did any attorney who worked with or for Jack Smith or Robert Muller or the Manhattan District Attorney’s office commit? For any of the attorneys I inquired about, please identify the attorney and the evidence of how such attorney's conduct constituted misconduct.
You seem unclear with how the law treats organizations. When an entity that bears a legal responsibility of oversight and correction fails to fulfill that obligation in dealing with misconduct, it assumes the same responsibility for that misconduct. Authority may be delegated, responsibility may not.
Lawyers at these firms committed gross breaches of legal ethics and professional codes of conduct (arguably to the extent that the conduct itself was outright illegal) and the firms not only failed to prevent such misconduct, not only failed to censure or otherwise punish such misconduct by their employees, they actively supported it and have continued to do so. Measures taken by the government to redress this injustice have included the firms accordingly. Individuals who did not personally engage in misconduct are of course free to seek employment elsewhere without prejudice, but those who remain, knowing full well that their organization has and remains committed to such malfeasance, are aiding and abetting the misconduct after the fact. They are obstructing justice.
How are Jack Smith and the rest guilty of misconduct? That's a very long list, but you can conveniently refer to the justification the government clearly explicates in each case. It's convenient that we don't need to guess or rely on news reports here, it's already stated outright.
You're also operating under another false premise that this article shares: many of the measures taken by the government here are not, properly speaking, 'punishment' at all. A client who loses confidence in his lawyer, or law firm, is clearly entitled to fire them and seek legal services elsewhere, particularly when the reason for that loss of confidence is the clear appearance of bias by the lawyers against the client himself, much less outright misconduct. No one would rationally argue that you are required to keep a legal representative that you cannot trust to faithfully represent your interests or behave legally and ethically, on the supposed basis that the lawyers who proved unreliable somehow 'deserve' to keep your business, much less have any 'right' to it. That isn't violating the lawyers' Freedom of Association in any way, it's the client exercising his own Freedom of Association to choose NOT to associate with those lawyers.
Likewise, the President is invested with full responsibility and authority regarding National Defense, including being the Original Classification Authority for classified material. The determination of who should have a security clearance is entirely at his discretion based on his judgement regarding what best serves the National Defense and who has "need to know". There is no possible legal argument of merit to be made that any other official can dictate to the President who must be given or allowed access to classified material. That's a core power of his office, beyond judicial review. What or whether that retraction of access has economic effects on the former holder is literally (and legally) irrelevant. They have no standing. Lost income is not a valid basis to challenge the President's determination that an individual or organization is not trustworthy of access to classified material.
These are all law firms that happily participated in the weaponization of our court systems against the Republican party, many of its supporters, and Trump himself.
Huge, wealthy, powerful law firms should not be gleefully working with politicians to destroy our political process.
Perkins Coie participated in a scheme to hamper a duly elected president, working alongside foreign intelligence personnel and a credulous, biased media. Other firms happily participated in novel applications of the law specifically meant to interfere in our political process, and to subvert the will of the voters.
They should be punished. We aren't supposed to be living in an oligarchy, even one that claims to be morally and intellectually superior to its citizens.
Did you comment when any lawyers representing Trump were targeted with what smells like coordinated political retribution? Rudy Giuliani, Michael Cohen, Kenneth Chesebro, John Eastman, Lin Wood, Sidney Powell, Jenna Ellis, Jeffrey Clark, Christina Bobb, Juli Haller, Brandon Johnson, Larry Joseph? Or is it "what they did really was bad" but what the folks you mention don't deserve similar treatment? Are you arguing that they should be prosecuted, harassed, bankrupted and disbarred in the same way?
Why shouldn't Trump, as executive, be able to prohibit his administration from becoming a client to a law firm that may not have his administration's best interest or have demonstrated animus against his administration? Would you force any other such attorney on any other client?
Clearances...the President gets to make this call. Sorry.
Access to buildings...perhaps the only place where you may be able to argue against what Trump has done, for some folks.
Did you comment when any lawyers representing Trump were targeted with what smells like coordinated political retribution? Rudy Giuliani, Michael Cohen, Kenneth Chesebro, John Eastman, Lin Wood, Sidney Powell, Jenna Ellis, Jeffrey Clark, Christina Bobb, Juli Haller, Brandon Johnson, Larry Joseph? Or is it "what they did really was bad" but what the folks you mention don't deserve similar treatment? Are you arguing that they should be prosecuted, harassed, bankrupted and disbarred in the same way?
Why shouldn't Trump, as executive, be able to prohibit his administration from becoming a client to a law firm that may not have his administration's best interest or have demonstrated animus against his administration? Would you force any other such attorney on any other client?
Clearances...the President gets to make this call. Sorry.
Access to buildings...perhaps the only place where you may be able to argue against what Trump has done, for some folks.
"(b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:
(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;
(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information."
Regarding your earlier argument that it's somehow an infringement of other employees right of association for the entire firm to suffer consequences, particularly note the next section"
"(c) Sanctions.
(1) In General. If, after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated, the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation. Absent exceptional circumstances, a law firm must be held jointly responsible for a violation committed by its partner, associate, or employee."
Read that last sentence again until it sinks in: a law firm MUST be held JOINTLY responsible for a violation committed by its partner, associate, or employee."
Steven indirectly raised and gave rise to very valid and very important points.
Steven focused on the authors’ separation-of-powers or federalism type of argument ("the administration should have sought sanctions from the judge in the case and potentially from the state bars [state judges] that license those attorneys."). But the Constitution’s apportioning of powers (between federal branches or between state and national governments) is irrelevant here. The actions of the executive branch are blatantly and egregiously unconstitutional, and they would be equally blatantly and egregiously unconstitutional if perpetrated by federal or state judges.
In fact, the blatantly and egregiously unconstitutional actions of executive officials actually were earlier perpetrated by federal judges just last year as I addressed in detailed comments regarding a So To Speak podcast (No. 235 with Ilya Shapiro). A gang of federal judges blatantly and egregiously violated our Constitution by imposing extra-judicial punishment (via a mere letter) on Columbia law school, Columbia University and all students who associate with Columbia because people at or associated with Columbia exercised the freedom of expression and freedom of association.
As far as I know, FIRE and Mr. Lukianoff said not one word against the unconstitutional misconduct of judges. Not only has FIRE been silent about such the egregious and dangerous examples set by federal judges in 2024, but Mr. Shapiro even purported to defend the judges’ misconduct by pretending that “prospective” retaliation and discrimination somehow was constitutional. The blatant misconduct of the gang of judges targeting Columbia and students who associate with it and FIRE’s silence should make us think twice about what the authors (Mr. Lukianoff and Mr. Goldstein) did say here now.
The authors emphasized the “remarkable” fact “that in a profession of professional talkers,” we “found very few willing to talk.” As far as I know, not even FIRE or Mr. Lukianoff were willing to talk about the blatantly and egregiously unconstitutional actions of judges just last year when they targeted law students, law school faculty, law schools and entire universities in a manner that is very alarmingly similar to Trump’s targeting of lawyers and law firms now.
Such silence by FIRE and Mr. Lukianoff (and many other lawyers and law firms) is all the more telling because, as the authors state, “FIRE is effectively a law firm” and (as the authors emphasized, including with italics) FIRE is “loyal to principle, not people or parties — and as always, [FIRE’s] principle has been and remains: If it’s protected, we will defend it. No exceptions. No throat-clearing. No apologies.”
So which half of the legal profession should I be concerned for, the half that can bearly stomach me, or the half that actively hates me?
You needn't be particularly concerned for any part of the legal profession. You should be concerned for the rights and freedoms of yourself and whomever you care for. One day, even you or they might want or need the representation of a lawyer or a law firm.
It's also well worth bearing in mind the wise reminder by Justices Stevens, Blackmun and O’Connor in their dissenting opinion in United States v. Alvarez-Machain, 504 U.S. 655 in 1992:
"As Thomas Paine warned, an 'avidity to punish is always dangerous to liberty' because it leads a nation 'to stretch, to misinterpret, and to misapply even the best of laws.' To counter that tendency, he reminds us:
'He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes [permits] a precedent that will reach to himself.' "
We ignore and permit violations of our Constitution by our public servants at our own great peril.
It's also worth bearing in mind the reminders of SCOTUS in Lowe v. SEC, 472 U.S. 181, 205 (1985) quoting Lovell v. Griffin, 303 U.S. 444, 452 (1938):
"The liberty of the press" (the freedom of speech and press) "necessarily embraces pamphlets and leaflets[, which] have been historic weapons in the defense of liberty, as the pamphlets of Thomas Paine and others in our own history abundantly attest. The [freedom of the] press [protects] every sort of publication which affords a vehicle of information and opinion …. [Courts should emphasize] the vital importance of protecting this essential liberty from every sort of infringement."
The court filings and arguments (speech and petitions) of lawyers and law firms are protected as strongly by our Constitution as Paine’s pamphlets.
Leonard Levy in a 1999 book that is very well worth reading these days (Origins of the Bill of Rights) emphasized crucial truths about our First Amendment rights and freedoms. Sadly, such self-evident truths have become, as John Stuart Mill put it, "dead dogma." Too often too many speak and think of the First Amendment as if its scant words somehow created or defined the freedom of speech and press and the right to assemble and petition. Levy highlighted the egregious error of such thought and speech.
"In a sense, the constitutional guarantee of freedom of the press" and speech and the rights to assemble and petition "signified nothing new. It did not augment or expand freedom of the press" and speech or the right to assemble and petition government. The First Amendment's declarations regarding the freedom of speech and press and the rights to assemble and petition the government merely "recognized and perpetuated an existing condition."
Clearly, well before the First Amendment was written or ratified, our original Constitution established that all "Government in the United States derived from the people, who reserved a right to alter it, and [all] government was accountable to the people. That required a broader legal concept of freedom of the press" and speech than existed previously. "Thus freedom of the press" (and speech) "meant the right to criticize harshly the government, its officers, and its policies as well as to comment on matters of public concern."
"The scope of the amendment," most fundamentally and crucially, "is determined by the nature of the government and its relation to the people." Absolutely all American "government is the people's servant, exists by their consent and for their benefit, and is constitutionally limited" by the people and is "responsible" to the people. Our Constitution confirmed that in America, the people are the only true "sovereigns;" the people are not the "subjects" of any "master." The "protections" of our Constitution are "indispensable" for "the development of free people in a free society;" they "are not to be the playthings of momentary majorities" or of any public servant in any branch of any level of government.
Every person--and every cause--is entitled to competent counsel.
If you detest one side of the case, file an amicus brief. But leave counsel alone.
Arguing that Americans should "leave counsel alone" goes too far. Lawyers are judicial officers (officers of the court). Every lawyer (admitted to practice before any court) swore (at least once) to support our Constitution. That oath is required of by our Constitution (Art. VI) of absolutely "all executive and judicial Officers" (federal and state). Lawyers are not (and should not be) any more immune than judges from criticism or other instruments of accountability.
In Landmark Commc’ns, Inc. v. Virginia in 1978, SCOTUS emphasized that “the law” (including the First and Fifth Amendments) “gives judges as persons, or courts as institutions” absolutely “no greater immunity from criticism” (or our Constitution) “than other persons or institutions.” Our “speech cannot be punished” merely “to protect the court as a mystical entity” or “judges as individuals or as anointed priests set apart from the community and spared the criticism to which” all “other public servants are exposed.”
I have no problem with anyone exercising their 1A rights. I have a big problem with criticizing attorneys based on their clients (although that has 1A protection, it's wrong) or, even worse, sanctioning based on the same (which is not protected by the 1A).
Even an axe murdering child rapist deserves competent counsel willing to use every legal means to get the best outcome for their client. Interfering with that is a 6A violation.
"If the administration felt that opposing lawyers were filing briefs that they knew or should have known did not hold merit, the administration should have sought sanctions from the judge in the case and potentially from the state bars that license those attorneys."
I have no idea how you could possibly have written that with a straight face given some of the judges involved and the conduct (and severe partisanship) of the Bar.
Let's not mince words. They DID file briefs they knew, or would have known if they did their jobs properly, did not hold merit, and they did so knowing full well that there would be zero accountability for doing so from the judges or the Bar.
This is not an attack, this is ACCOUNTABILITY. If you genuinely think that such accountability would or could come from any other source, I want to see the receipts where that's actually HAPPENED. I see a protected class that unethically (and in many cases, illegally) abused their positions to misuse and abuse the law in a manner more commonly associated with a banana Republic to support what amounts to a soft coup. They engaged in persecution moreso than legitimate prosecution. This administration is actively trying to address this corruption and malfeasance.
Yes, we need independent lawyers who can defend unpopular clients and prosecute popular defendents, but we also need lawyers to actually follow the law and ethics demanded of the profession. You don't protect the former by refusing to enforce the latter.
"If you genuinely think that such accountability would or could come from any other source, I want to see the receipts where that's actually HAPPENED."
One example of disbarment from memory: https://en.wikipedia.org/wiki/Mike_Nifong#Disbarment certainly lawyers are disbarred all the time.
AFAICT Trump never sought sanctions from the judge nor filed complaints with the bar, so the claim that they would not have faced any sanctions is a counterfactual.
Your example is nearly two decades old, does not involve political partisanship, malicious prosecution, or other forms of lawfare and weaponization of the legal system for political purposes. Bluntly, it's irrelevant, and if that's that best you could come up with you've rather supported my point that lawyers haven't been upholding their ethical standards for a long time.
This is not a counterfactual, it is a reality of how a profession is supposed to work: they are supposed to be self-policing in order to retain the confidence of the public. A judge does not need to receive a complaint to act on malfeasance brought before him, he's derelict in his duty if he does not act. Likewise, the Bar has the responsibility to enforce their own professional standards on their members. They failed to do so. This is like arguing that an Internal Affairs office can't police their own organization without an outside complaint.
Steven, to use your words, "I have no idea how you could possibly have written that with a straight face . . . This is not an attack, this is ACCOUNTABILITY."
The actions of Trump and other executive officials here are blatantly and dangerously unconstitutional. Please consider my detailed comments regarding FIRE's So To Speak podcast No. 235 with Ilya Shapiro. There, I addressed very similar violations of our Constitution. Then and now, federal officials retaliated against individuals and associations merely because they were associated (even extremely loosely) with other people who previously exercised our freedom of expression and freedom of association. Such retaliation violates our Constitution regardless of whether it is perpetrated by Trump and other executive officials or federal (or state) judges.
This is not a valid argument. Even the article here notes that the administration has been explicitly clear about their reasons for taking action and in each case the reason given is a matter of professional misconduct, not speech or expression, and the institutions on the receiving end have responsibilities regarding the professional conduct of their members. You can't hand wave away illegal or professionally unethical conduct with an appeal to freedom of expression. Bluntly, this shouldn't even be a topic for a FIRE article because none of these cases involve 1A rights.
Steven, you contended that "in each case the reason given is a matter of professional misconduct, not speech or expression." "This is not a valid argument," as you put it. Please consider the self-evident truth that opponents of the freedom of speech and press and the rights to assemble and petition often give their unconstitutional oppression a respectable-sounding label and they often give their victims an evil-sounding label. A wise and unanimous SCOTUS being faithful to our Constitution said this about such labels:
"In deciding the question now, we are compelled by neither precedent nor policy to give any more weight to the epithet ‘libel’ than we have to other ‘mere labels.’ "
"Like insurrection, contempt, advocacy of unlawful acts, breach of the peace, obscenity, solicitation of legal business, and the various other formulae for the repression of expression that have been challenged in this Court, libel can claim no talismanic immunity from constitutional limitations. It must be measured by standards that satisfy the First Amendment."
Here, the label "professional misconduct" is no more compelling than "the various other formulae for the repression of expression" identified by SCOTUS. The government retaliation and discrimination at issue must be measured by standards that satisfy our Constitution.
Public servants "cannot foreclose the exercise of constitutional rights by mere labels." NAACP v. Button, 371 U.S. 415, 429 (1963). Mere "abstract discussion is not the only species of communication which the Constitution protects; the First Amendment also protects vigorous advocacy [by lawyers, law firms and litigants], certainly of lawful ends, against governmental intrusion." Id. Clearly, our Constitution and SCOTUS precedent emphatically "affirmed the right" to "engage in association for the advancement of beliefs and ideas." Id. at 430. "Our form of government is built on the premise that every citizen shall have the right to engage in political expression and association. This right was" even expressly and emphatically secured "in the First Amendment of the Bill of Rights." Id. at 431.
Courts (much less mere judges acting individually or collectively or even the president) “may not prohibit” constitutionally-protected “modes of expression and association” by merely invoking the general “power to regulate the legal profession.” Id. at 428-429. “[I]t is no answer” that “the purpose of” any “regulations” (court rules or rulings, judges' letters or executive orders or memoranda) “was merely to insure high professional standards.” Id. at 438-439. First Amendment “liberties,” including “speech, press, or association” are “indispensable.” Id. at 439. Courts and presidents “may not, under the guise of prohibiting professional misconduct, ignore” (knowingly violate) “constitutional rights” (as they did). Id.
In New York Times Co. v. Sullivan, a unanimous SCOTUS quoted Madison regarding our First Amendment rights and freedoms to emphasize the same point as Leonard Levy did in another of my comments regarding this post. "Madison" emphasized "that the Constitution created a form of government under which ‘The people, not the government, possess the absolute sovereignty.’ The structure of the government dispersed power in reflection of the people’s distrust of concentrated power, and of power itself at all levels." Clearly, "the nature of [our] Republican Government" dictates "that the censorial power is in the people over the Government, and not in the Government over the people."
Also not an argument, unless you are taking the facially absurd position that "professional misconduct" is literally impossible to regulate in the legal profession, which is clearly nonsense.
The government has not here ignored or knowingly violated constitutional rights. You attempting to mislabel professional misconduct as free expression or association is not an argument. None of these cases have so much as implicated Freedom of Speech, Expression, or Association. These aren't 1A cases in any way, shape, or form. No protected form of expression is threatened.
Steven, I think I understand your concern. Are you concerned that labels such as "speech," "assembly" or "petition" should not immunize from all scrutiny (all regulation) all expression, communication and association? If so, I agree. No mere label should end any inquiry.
All forms of expression, communication and association are PROTECTED by our Constitution, but no form of expression, communication or association is completely IMMUNIZED from all regulation. All litigation entails exercises of freedoms of speech and press and freedom of association (right to assemble), and (if directed at government action, then also the right to petition). Yet, all litigation is subject to copious regulation (including in court rules governing procedure, evidence and professional conduct).
I also agree with SCOTUS about the process of law that is due because government power irrefutably is being used (by POTUS) against people because they engaged in expression, communication, petitioning the government and associating with each other.
One of the best opinions SCOTUS justices ever wrote about the relationship of the people to public officials was New York Times Co. v. Sullivan, 376 U.S. 254 (1964). Another was Citizens United v. FEC, 558 U.S. 310 (2010). Both emphasized that "the people" are the only sovereign in America. Those opinions also shed light on how the sovereignty of the people determined the freedom of speech and press and freedom of association. The sovereignty of the people means, most fundamentally, that all public officials are public servants. Trump is not our ruler. He is our representative. His conduct is governed by our Constitution.
Two of the best decisions I've seen SCOTUS justices write securing rights were District of Columbia v. Heller, 554 U.S. 570 (2008) and N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022). They're not merely about guns. They're more generally about the sovereignty of the people, about what American citizens have the right to do for self-defense or self-preservation, and about due process of law protecting such rights.
An “Amendment’s plain text covers” the conduct at issue, so “the Constitution presumptively protects that conduct.” Bruen at 17. Government always must “justify” any “regulation” thereof, i.e., “must demonstrate” (prove, not merely contend) that regulation was “consistent with this Nation’s historical tradition” of protecting speech/petitions/association. Id. Government always “must affirmatively prove that” its regulation of expression, communication and association is within this nation’s “historical tradition” of protecting speech/petitions/association within “the outer bounds” of each “right.” Id. at 19.
As SCOTUS put it in Speiser v. Randall, 357 U.S. 513, 528-529 (1958), whenever “the constitutional right to speak” is “deterred by” invoking any “general” rule, “due process demands that the speech be unencumbered until” government presents “proof to justify its inhibition.” POTUS must prove that he's not abridging the freedoms of expression, communication and association. He cannot merely allege "professional misconduct" or "national security" in executive fiat (executive orders or memoranda).
I find your attempt to draw a dichotomy between 'protected' and 'immunized' to be an unclear distinction. Suffice it to say that I am a strong advocate in favor of Freedom of Speech, Expression, and Association, but recognize that not all forms of those things are wholly that and may (even must) be regulated on the basis of what they are ALSO, such as commercial speech being subject to fraud regulation precisely because it is a commercial activity, not purely speech, therefore it is NOT necessarily "protected speech" in the sense of 'Free Speech'. A defendent who commits fraud in an advertisement cannot defend that commercial conduct by appealing to the 1A. It's not a 1A case at all, it's a commercial case. In short, these are not labels that may be used to excuse otherwise subject conduct from being subject, which very much appears to be the argument that FIRE, and you, have advanced here. Bringing frivolous cases unwarranted by fact or law for the improper purpose of harassment and imposing delays and litigation costs upon the defendent is NOT protected by the 1A (even when the defendent in question is Trump or the federal government). Nor is it protected by the Right to Petition for a Redress of Grievances, which still requires that the petitioners must actually HAVE a legitimate grievance under the law.
For example, is Rule 3.1 unconstitutional? Is this in ANY way a violation of the 1A?
"A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law."
I am of the opinion that Perkins lawyers violated this rule.
Likewise, is Rule 11(b) unconstitutional?
"(b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:
(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;
(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.
Again, I believe that the Perkins lawyers violated this Rule by engaging in legal advocacy that they KNEW was frivolous, unwarranted, and presented for improper purpose of harassment and cost of litigation.
Yet despite this, you have argued that the rest of the firm and its employees and contacts ought not be affected? This is inconsistent with the Rule itself.
(c) Sanctions.
(1) In General. If, after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated, the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation. Absent exceptional circumstances, a law firm must be held jointly responsible for a violation committed by its partner, associate, or employee.
I will repeat that last sentence with relevant emphasis: Absent exceptional circumstances, a law firm MUST be held JOINTLY responsible for a violation committed by its partner, associate, or employee.
I contend that the sanctions that the Trump administration has attempted to impose ARE 'an appropriate sanction' against 'any attorney, law firm, or party that violated the rule', therefore entirely constitutional.
Steven, if you speak with specificity, you can see what is "facially absurd." Specifically what misconduct did any current Perkins Coie or Susman Godfrey attorney commit? How are current Perkins Coie or Susman Godfrey attorneys being punished for anything other than associating with those firms or with other attorneys or certain clients or speaking for clients? Specifically what misconduct did any attorney who worked with or for Jack Smith or Robert Muller or the Manhattan District Attorney’s office commit? For any of the attorneys I inquired about, please identify the attorney and the evidence of how such attorney's conduct constituted misconduct.
You seem unclear with how the law treats organizations. When an entity that bears a legal responsibility of oversight and correction fails to fulfill that obligation in dealing with misconduct, it assumes the same responsibility for that misconduct. Authority may be delegated, responsibility may not.
Lawyers at these firms committed gross breaches of legal ethics and professional codes of conduct (arguably to the extent that the conduct itself was outright illegal) and the firms not only failed to prevent such misconduct, not only failed to censure or otherwise punish such misconduct by their employees, they actively supported it and have continued to do so. Measures taken by the government to redress this injustice have included the firms accordingly. Individuals who did not personally engage in misconduct are of course free to seek employment elsewhere without prejudice, but those who remain, knowing full well that their organization has and remains committed to such malfeasance, are aiding and abetting the misconduct after the fact. They are obstructing justice.
How are Jack Smith and the rest guilty of misconduct? That's a very long list, but you can conveniently refer to the justification the government clearly explicates in each case. It's convenient that we don't need to guess or rely on news reports here, it's already stated outright.
You're also operating under another false premise that this article shares: many of the measures taken by the government here are not, properly speaking, 'punishment' at all. A client who loses confidence in his lawyer, or law firm, is clearly entitled to fire them and seek legal services elsewhere, particularly when the reason for that loss of confidence is the clear appearance of bias by the lawyers against the client himself, much less outright misconduct. No one would rationally argue that you are required to keep a legal representative that you cannot trust to faithfully represent your interests or behave legally and ethically, on the supposed basis that the lawyers who proved unreliable somehow 'deserve' to keep your business, much less have any 'right' to it. That isn't violating the lawyers' Freedom of Association in any way, it's the client exercising his own Freedom of Association to choose NOT to associate with those lawyers.
Likewise, the President is invested with full responsibility and authority regarding National Defense, including being the Original Classification Authority for classified material. The determination of who should have a security clearance is entirely at his discretion based on his judgement regarding what best serves the National Defense and who has "need to know". There is no possible legal argument of merit to be made that any other official can dictate to the President who must be given or allowed access to classified material. That's a core power of his office, beyond judicial review. What or whether that retraction of access has economic effects on the former holder is literally (and legally) irrelevant. They have no standing. Lost income is not a valid basis to challenge the President's determination that an individual or organization is not trustworthy of access to classified material.
These are all law firms that happily participated in the weaponization of our court systems against the Republican party, many of its supporters, and Trump himself.
Huge, wealthy, powerful law firms should not be gleefully working with politicians to destroy our political process.
Perkins Coie participated in a scheme to hamper a duly elected president, working alongside foreign intelligence personnel and a credulous, biased media. Other firms happily participated in novel applications of the law specifically meant to interfere in our political process, and to subvert the will of the voters.
They should be punished. We aren't supposed to be living in an oligarchy, even one that claims to be morally and intellectually superior to its citizens.
Did you comment when any lawyers representing Trump were targeted with what smells like coordinated political retribution? Rudy Giuliani, Michael Cohen, Kenneth Chesebro, John Eastman, Lin Wood, Sidney Powell, Jenna Ellis, Jeffrey Clark, Christina Bobb, Juli Haller, Brandon Johnson, Larry Joseph? Or is it "what they did really was bad" but what the folks you mention don't deserve similar treatment? Are you arguing that they should be prosecuted, harassed, bankrupted and disbarred in the same way?
Why shouldn't Trump, as executive, be able to prohibit his administration from becoming a client to a law firm that may not have his administration's best interest or have demonstrated animus against his administration? Would you force any other such attorney on any other client?
Clearances...the President gets to make this call. Sorry.
Access to buildings...perhaps the only place where you may be able to argue against what Trump has done, for some folks.
Did you comment when any lawyers representing Trump were targeted with what smells like coordinated political retribution? Rudy Giuliani, Michael Cohen, Kenneth Chesebro, John Eastman, Lin Wood, Sidney Powell, Jenna Ellis, Jeffrey Clark, Christina Bobb, Juli Haller, Brandon Johnson, Larry Joseph? Or is it "what they did really was bad" but what the folks you mention don't deserve similar treatment? Are you arguing that they should be prosecuted, harassed, bankrupted and disbarred in the same way?
Why shouldn't Trump, as executive, be able to prohibit his administration from becoming a client to a law firm that may not have his administration's best interest or have demonstrated animus against his administration? Would you force any other such attorney on any other client?
Clearances...the President gets to make this call. Sorry.
Access to buildings...perhaps the only place where you may be able to argue against what Trump has done, for some folks.
What law? Let's start with https://www.law.cornell.edu/rules/frcp/rule_11
"(b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:
(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;
(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information."
Regarding your earlier argument that it's somehow an infringement of other employees right of association for the entire firm to suffer consequences, particularly note the next section"
"(c) Sanctions.
(1) In General. If, after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated, the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation. Absent exceptional circumstances, a law firm must be held jointly responsible for a violation committed by its partner, associate, or employee."
Read that last sentence again until it sinks in: a law firm MUST be held JOINTLY responsible for a violation committed by its partner, associate, or employee."
Steven indirectly raised and gave rise to very valid and very important points.
Steven focused on the authors’ separation-of-powers or federalism type of argument ("the administration should have sought sanctions from the judge in the case and potentially from the state bars [state judges] that license those attorneys."). But the Constitution’s apportioning of powers (between federal branches or between state and national governments) is irrelevant here. The actions of the executive branch are blatantly and egregiously unconstitutional, and they would be equally blatantly and egregiously unconstitutional if perpetrated by federal or state judges.
In fact, the blatantly and egregiously unconstitutional actions of executive officials actually were earlier perpetrated by federal judges just last year as I addressed in detailed comments regarding a So To Speak podcast (No. 235 with Ilya Shapiro). A gang of federal judges blatantly and egregiously violated our Constitution by imposing extra-judicial punishment (via a mere letter) on Columbia law school, Columbia University and all students who associate with Columbia because people at or associated with Columbia exercised the freedom of expression and freedom of association.
As far as I know, FIRE and Mr. Lukianoff said not one word against the unconstitutional misconduct of judges. Not only has FIRE been silent about such the egregious and dangerous examples set by federal judges in 2024, but Mr. Shapiro even purported to defend the judges’ misconduct by pretending that “prospective” retaliation and discrimination somehow was constitutional. The blatant misconduct of the gang of judges targeting Columbia and students who associate with it and FIRE’s silence should make us think twice about what the authors (Mr. Lukianoff and Mr. Goldstein) did say here now.
The authors emphasized the “remarkable” fact “that in a profession of professional talkers,” we “found very few willing to talk.” As far as I know, not even FIRE or Mr. Lukianoff were willing to talk about the blatantly and egregiously unconstitutional actions of judges just last year when they targeted law students, law school faculty, law schools and entire universities in a manner that is very alarmingly similar to Trump’s targeting of lawyers and law firms now.
Such silence by FIRE and Mr. Lukianoff (and many other lawyers and law firms) is all the more telling because, as the authors state, “FIRE is effectively a law firm” and (as the authors emphasized, including with italics) FIRE is “loyal to principle, not people or parties — and as always, [FIRE’s] principle has been and remains: If it’s protected, we will defend it. No exceptions. No throat-clearing. No apologies.”