When Lawyers Stand Up

By Sherrilyn Ifill

The last month has been marked by repeated challenges to our constitutional order and to the rule of law. Elon Musk’s reign of terror against federal workers, Trump’s betrayal of Ukraine, the confirmation of Kash Patel to lead the FBI and the late Friday night purge at the Department of Defense last week are all devastating indications of how far down the road to autocracy our nation has traveled, and augur poorly for what our nation will face in the weeks and months ahead.

But there have been some signs of successful pushback against the excesses of Trump and his team in the courts. Among other things, last week ended with a federal judge halting Trump’s ugly anti-DEI Executive Order, citing the likelihood of constitutional violations, and another firm court ruling against Trump’s Executive Order purporting to end birthright citizenship. Multiple district courts have issued temporary restraining orders against Elon Musk’s erratic and arbitrary attacks on federal agencies and their workers. In all, the rule of law has thus far demonstrated a strong measure of resilience during Trump’s first month in office.

However, courts do not have the power to stop extra-legal conduct by the Executive branch on their own. It requires the work of diligent lawyers to bring matters to courts, to abide by the rules of our legal system, to make the sound arguments, and to activate the potential of the court’s power to serve as a corrective to the Administration’s excesses. That is why we should give sustained attention to one of the promising rule of law developments of the last month that took place outside the courts.

Two weeks ago, a total of eight senior lawyers at the Department of Justice resigned rather than endorse and put their name behind a motion to dismiss federal corruption charges against NYC Mayor Eric Adams, who was indicted by a federal grand jury last year. Danielle Sassoon, the acting U.S. Attorney for Southern District of New York, issued a damning letter expressing her belief that the proposed dismissal was not undertaken based on an assessment of the case against Mr. Adams, but was instead recommended by acting deputy Attorney General Emil Bove in exchange for Mr. Adams’ assistance in advancing President Trump’s immigration policies in New York City.

In a letter to Attorney General Bondi, Ms. Sassoon flatly stated that “the law does not support a dismissal,” and explained that she was “baffled by the rushed and superficial process by which this decision was reached, in seeming collaboration with Adams’s counsel.” Citing New York’s Rules of Professional Conduct, Sassoon expressed that she would be unable to truthfully make a good-faith argument for dismissal to the district court, and would thus be compelled to abrogate her “duty of candor to the tribunal.”

Mr. Bove’s conduct was thrown into further question by another attorney from the same office, Assistant United States Attorney Hagan Scotten, who also resigned over the Adams dismissal. Scotten’s stinging letter to Bove was even more pointed, calling the basis for the proposed dismissal “transparently pretextual.” Scotten closed his letter to Bove with what has now become a viral take down: “I expect that you will eventually find someone who is enough of a fool, or enough of a coward, to file your motion. But it was never going to be me.” A bar complaint has since been filed against Mr. Bove by the watchdog group, American Oversight.

The resignations provoked no second-guessing from Bove, who instead doubled down on his unseemly conduct, corralling DOJ attorneys into a room and demanding that one of them agree to sign the motion to dismiss, lest they all would be fired. Ultimately one of the attorneys agreed to sign, reportedly to save all their jobs. Embarrassingly, Bove was compelled to take an unheard-of step for a Deputy U.S. Attorney: arguing the motion himself, which he did boldly and without any appearance of repentance.

But Sassoon and her colleagues’ refusal to go along with the Bove plan may well constitute a critical turning point in Trump 2.0. It remains impossible not to see Sassoon’s and her colleagues’ firm, unequivocal stance in sharp relief to the conduct of many senior DOJ attorneys in Trump’s first term.

No Department of Justice attorney resigned or spoke out after Attorney General Bill Barr hijacked the Mueller report, distorting the report’s findings in his own self-serving “summary” of the report’s findings, and insisting that the conclusion of the report exonerated Mr. Trump of claims of wrongdoing. Those actions trivialized twenty-two months of work by Mr. Mueller’s team, and undermined the significance of a report that included shocking revelations about the President’s conduct. Not even Mueller chose to correct the record in any forceful way, allowing Barr’s machinations to turn the Mueller report into a punchline.

When Trump demanded that Rod Rosenstein issue a letter laying out a basis for firing FBI director James Comey, Rosenstein complied despite his misgivings, offering a multi-page excoriation of Comey’s conduct in the investigation of Secretary of State Hillary Clinton’s storage of emails on her personal computer server. The decision to fire Comey was largely driven by Trump’s insistence that Comey follow Trump’s orders to steer law enforcement investigations away from him and his cronies. Trump was enraged by Comey’s repeated refusal to say what Trump wanted to hear: that he was not a target of the Special Counsel’s investigation into Russian interference in the 2016 election. But Rosenstein issued his letter anyway, offering a scathing assessment of Comey’s handling of the investigation into Clinton’s handling of emails, which, of course, Trump used as another “transparently pretextual” justification for firing Comey.

Rosenstein also defended Attorney General Barr’s distortion of the conclusions of the Mueller report, applauding Barr’s handling of the report’s release.

Sassoon’s actions and those of her colleagues should not have been unremarkable. All lawyers know that the Model Rules of Professional Conduct and their state analogues prohibit attorneys from making false statements to courts. But we also watched attorneys representing Mr. Trump do precisely that in the weeks after the 2020 General Election. More than 60 lawsuits were filed advancing spurious and unsupported claims of voter fraud, despite clear findings and statements from election analysts and lawyers—including, ironically, Attorney General Barr—concluding that there had been no findings of substantial fraud in the election. Several of those attorneys have faced disciplinary proceedings by their state bar associations. And at least four have been suspended or disbarred from practice.

Our ethical obligations as lawyers transcend partisan affiliation and cannot be waived based on the elevated status of our clients. That is why it matters that Sassoon is a senior lawyer of impeccable conservative pedigree, having clerked for Justice Antonin Scalia, and for conservative judicial stalwart, J. Harvie Wilkinson, former Chief Judge of the 4^th Circuit Court of Appeals. Sassoon is no sleeper agent of “the resistance.”

All the evidence suggests that Sassoon acted in the highest calling of our provision, at a critical moment when integrity—rather than ambition or cowardice—was called for.

But that wasn’t all. Days after the Sassoon resignation, we learned that Denise Cheung, another senior DOJ attorney and the head of the criminal division of the U.S. Attorney’s office in D.C., resigned after refusing to launch a criminal investigation into a grantee of a Biden Administration environmental program and to freeze its assets. The investigation and seizure of the grantee’s assets were urged by the Acting U.S. Attorney for the District of Columbia. Cheung explained that “the quantum of evidence did not support the action” demanded by acting US Attorney Ed Martin’s office. In light of her refusal to carry out the unsupported investigation, Ms. Cheung was asked by her supervisor to resign.

The decisions made by these attorneys, and others since, are significant. The concept of the rule of law is dependent on the ethical conduct of attorneys. The representations we make to courts, the justification for the legal positions we advance, the sources of law we cite in our briefs, must be truthful to the best of our knowledge. These ethical rules bind us together as lawyers. No level of litigation zeal justifies taking actions that violate our oath of office, or the rules of professional conduct to which we are bound. These rules are meant to ensure the integrity of the legal system, without which there can be no protection of the rule of law.

This conduct should be standard. But it wasn’t during Mr. Trump’s first term. If the public resignation of Sassoon, Cheung, and the other DOJ attorneys is not a mere aberration, it may suggest that the integrity of our profession will emerge from Trump’s second time in office, in better shape than it did after the first.

Of course, all is not rosy. In hearings before federal judges this week, DOJ attorneys defending the freezing of payments from US AID to aid organizations around the world by Elon Musk and his team, and pressed to identify the Administrator of Elon’s “Department” of Government Efficiency, appeared to be engaged in a risky bait-and-switch with federal judges. And Ed Martin, the Acting U.S. Attorney for the District of Columbia, an attorney who represented January 6th rioters, and who believes that he and other U.S. Attorneys are “President Trump’s lawyers,” has already engaged in multiple actions that suggest he is unfit to be confirmed to the permanent U.S attorney position.

But by merely showing what can be done—that lawyers can and have the obligation to say no when actions recommended by the supervisors or even by the President of the United States would compromise their ethical obligations—the senior DOJ attorneys who resigned their positions rather than comply with unethical conduct, have lit the pathway for other lawyers serving this Administration to uphold the standards of our profession.

Sherrilyn Ifill is a Civil Rights legal icon and leader. She is the Vernon E. Jordan, Jr., Esq. Endowed Chair in Civil Rights at Howard University, a writer, law professor, and the former president and director-counsel of the NAACP Legal Defense Fund.