Calling All Ethical Lawyers
In the face of Trump's retributive assaults on our justice system, the duty of the legal community cannot be clearer: fight back
By Mimi Rocah
By now, most readers of The Contrarian are familiar with the highlights of the Trump Administration's assault on a fair and impartial justice system.
Some of these actions have received ample media coverage: the order from then-Acting Deputy Attorney General Emil Bove to the Southern District of New York Acting U.S. Attorney Danielle Sassoon to dismiss the corruption case against Mayor Eric Adams; the firing of the most experienced leaders of the FBI; the demand for a list of FBI agents who worked on the January 6th cases; the termination of DOJ attorneys who worked on the January 6th cases or cases related to Donald Trump; the threats of impeachment or disobedience to federal judges whose orders do not go their way. Other actions have received less public attention: the forced resignation of the head of the New York FBI Field Office who pledged to protect his troops; the retributive acts against Covington & Burling, the law firm representing former Special Counsel Jack Smith; the attempt by DOJ leadership to illegally freeze funding for a Biden era climate initiative. These swift and brazen acts of retribution, taken together with the assault on our intelligence community and military lawyers, have sent collective shockwaves through the legal community.
More heartening is the legal community’s response to these attacks on our justice system. An unprecedented (at least since the Nixon era) number of career lawyers from all political backgrounds have courageously resigned from public service, refusing to violate what they see as their oaths to the Constitution, the courts, and their ethical responsibilities. Acting U.S. Attorney Sassoon resigned rather than follow Bove’s order to dismiss the Adams indictment because the order was, as she wrote, “driven by improper considerations,” and she could not in good faith “consistent with my duty of candor” under New York’s Code of Professional Responsibility for lawyers request the dismissal from a court.
Hagan Scotten, the line attorney assigned to the case, also resigned, stating that “any assistant U.S. attorney would know that our laws and traditions do not allow using the prosecutorial power to influence other citizens, much less elected officials, in this way.” Five more prosecutors at the DOJ Public Integrity section resigned in turn. More recently, we saw the resignation of Denise Cheung, the Criminal Division Chief of the D.C. U.S. Attorney’s Office, because she refused to authorize what she considered a lawless freeze order demanded by Interim U.S Attorney Ed Martin on a Biden climate initiative.
These acts of courage have seen unprecedented support from the wider legal community. In response to the Adams-related resignations, seven former SDNY U.S Attorneys, over 1,000 DOJ Alumni, and the NYC Bar Association issued statements supporting these individual decisions to resign as upholding the rule of law. Following Cheung’s resignation, alumni from the D.C. U.S. Attorney's Office issued a strong statement opposing Martin’s nomination for U.S. Attorney because he has “butchered the position…turning it into a political arm of the current administration…in ways that typify authoritarian and indeed totalitarian regimes of the most notorious sort.”
The American Bar Association, not known for wading into this territory, has found its voice. First, it strongly condemned attacks by the current Trump Administration on the legitimacy of judicial oversight just because a court’s ruling is not what the administration wants, and any threat to impeach judges who do not rule their way. Nearly 1,000 law professors and the American College of Trial Lawyers have spoken out repeatedly and forcefully about the targeting of the judiciary.
The ABA also weighed in last week when the White House targeted Covington & Burling by revoking their security clearances. At least four other professional bar associations, NACDL, New York County Lawyers Association, NYCDL, and NYC Bar also issued statements condemning the attack on Covington, made plainly because of their representation of Jack Smith, as a threat to “core principles of justice.” As we know, courage is contagious. As the ABA so eloquently put it: “There are clear choices facing our profession. We can choose to remain silent and allow these acts to continue or we can stand for the rule of law and the values we hold dear. We call upon the entire profession, including lawyers who serve in elected positions, to speak out against intimidation. We acknowledge that there are risks to standing up and addressing these important issues. But if the ABA and lawyers do not speak, who will speak for the organized bar? Who will speak for the judiciary? Who will protect our system of justice? If we don’t speak now, when will we speak?”
The seeming refusal of the many in the legal profession to stay silent when too many are afraid to speak up is encouraging. In an ideal world (which this most certainly is not), big law firms would rally to the defense of their fellow lawyers and firms, but at the same time I believe professional organizations such as bar associations and alumni groups are doing exactly what needs to be done: speaking with one voice, amplified by the voices of many individual lawyers across the political spectrum.
The use of retribution against lawyers, organizations, and institutions that this Administration does not like, or sees as a barrier to its lawlessness will continue. Last week, Trump issued an order suspending the security clearances and denying access to federal buildings for attorneys at another law firm, Perkins Coie, which has long been associated with Democratic politicians. They won’t be the last, as Trump proclaimed. Additional prosecutors at DOJ and SDNY were not only suspended or terminated last week without explanation, but escorted out of their respective buildings by law enforcement in a shameful display of unnecessary power. In the past few days, Trump loyalists Bradley Bondi (brother of AG Pam Bondi) and Alicia Long (Deputy U.S. Attorney to Martin) have been in a bid to take over leadership of the D.C. Bar. That would be dangerous both because it would allow Team Trump to disregard sanctions against ethical violations by Trump allies, and because their power could be used to seek unfair retribution against attorneys who refuse to do the Administration's bidding.
Recently, on social media and in the media, some have crowned lawyers and judges the new “heroes” of this time. We must be cautious in this regard, especially after the over-lionization of lawyers like Robert Mueller during Trump I and Jack Smith during the Biden Presidency. Heroes can imply someone who will save us from all of our problems; that is not what lawyers do nor what we should expect. But if hero means a lawyer who courageously stands up for their oaths and commitment to the rule of law in this era then, yes, we have many heroes among us.
Mimi Rocah was the district attorney of Westchester County, New York, from 2021 to 2024 and was a federal prosecutor from 2001 to 2017.
By the end of the muskrat/orange felon rule term, if there is any such thing, the ABA and the various state bar associations have their work cut out for them: disbar all lawyers who did the dirty work for them.
That should include judges who ruled for faulty muskrat/orange felon cases against the law and what should have been their own better judgements.
Online hosts are properly aghast at Trump's direct attack on the Rule of Land by his assault on individual law firms. They are trying to remember a very sad and prophetic saying by some German minister in the face of Hitler's horrors.
The minister in question was Martin Niemoller who said:
"First they came for the Socialists and I did not speak out because I was not a Socialist.
Then they came for the trade unionists, and I did not speak out-because I was not a trade unionist. Then they came for the Jews and I did not speak out-because I was not a Jew.
Then they came for me-and there was no one left to speak for me."
Donald Trump is a second-generation immigrant from Bavaria, Germany, and he has brought with him the absolute worst inhumane aspects of that culture to our shores. Maybe we should reimagine our immigration policies because it is obvious with the likes of him on our shores, we are allowing criminals of the lowest order to emigrate to our shores.