Lawyers! Can't live with them...
...can't live without them
Q: Why won’t sharks eat lawyers?
A: Professional courtesy!
Q: What do you call a lawyer buried up to his neck in cement?
A: Not enough cement!
God and the Devil, after lengthy negotiations, enter into a contract for the allocation of souls between heaven and hell. Almost immediately the Devil breaks the contract. God is outraged. “I’ll sue you!” he says to the Devil. The Devil laughs, “Sue me? Where are you going to get a lawyer?!”
Everybody knows a few lawyer jokes, and I have head a lot of them. For the record, my wife is married to a lawyer, and so am I. It is easy to hate on lawyers until you have a problem, then the legal profession is where you turn for help.
The American system is designed to empower private law enforcement. Let’s put criminal law aside for one second. Think about discrimination, fraud, pollution, intellectual property, antitrust, products liability, malpractice, etc. all of these areas while subject to government regulation and enforcement, also provide private right’s of action. People can sue, and those lawsuits, and potential lawsuits, guide human behavior and encourage behavior that the lawmakers (judges, legislators, administrators) have determined is good for the country. For example, over the course of my professional life, I have observed the workplace become far less sexist. Why? In part because of lawsuits and the threat of lawsuits.
This approach is somewhat unique to America. It is also a blessing and a curse. It is a blessing in that we have empowered private citizens to enforce their rights, rather than relying on the government to act on their behalf. This can be very efficient. People who are aggrieved can sue to enforce their rights. If they can afford a lawyer, they will simply pay for one. If they cannot, they may be able to have a lawyer take their case on contingency, where the lawyer represents them free of charge, but takes a percentage of whatever money they recover if the lawsuit prevails.
It is a curse because we have more lawsuits per capita than any other nation, and we make it easier for people to slow the wheels of progress while the over-burdened courts sort through their claims. A good example of this is how NIMBY people (Not In My Back Yard) can sue to prevent new housing in their neighborhoods.
It is also a boon for lawyers. Hence the jokes.
One of the premises behind this approach is that lawyers are hired guns. They can work for anybody who has any claim. The lawyer’s job is to be an advocate for their client. Lawyers in a lawsuit are not trying to make policy. They are trying to win cases. The underlying assumption is that by ensuring a fair fight — due process — we will much more often than not end up with a good result, and ultimately good behavior, or at least the behavior lawmakers want to encourage will slowly advance.1
The idea that lawyers don’t have to like or even support their clients is deeply rooted in the American system and American history. John Adams, signer of the Declaration of Independence, and the second President of the United States, no friend of the British military, defended the soldiers accused of murder in what became known as the Boston Massacre. Adam’s took a lot of heat for this representation, especially when he got most of the soldiers off. He started his closing argument with this quotation:
If, by supporting the rights of mankind, and of invincible truth, I shall contribute to save from the agonies of death one unfortunate victim of tyranny, or of ignorance, equally fatal, his blessings and years of transport will be sufficient consolation to me for the contempt of all mankind.
This is the ideal role of the lawyer. To fight for a client. To ensure they receive the benefits of due process. Even if doing so is deeply unpopular.2 Which brings us to today.
Congress, at least for now, has utterly abdicated its authority as a co-equal branch of government. But the American system encourages private law enforcement, and so people are suing. And because so much of what Trump and Musk is doing is being done without any regard to what the law says, judges are issuing orders telling them to stop. Which is why Trump calls judges “insane radical leftists,” and Musk says:
But of course in order for private citizens to enforce the law, they need lawyers. So Trump is attacking the legal profession. Law has become a big business, and some of the largest law firms, during Trump 1.0, were involved in litigation against the President. The one thing Trump always remembers is who opposed him, and now that he is back in power, he is making a concerted effort to punish anyone who opposed him, and force them to bend their knee and kiss his...ring… ass? This effort includes a number of the biggest law firms. Added side benefit? After they capitulated, the law firms will find some mealy mouthed excuse not to represent someone suing Trump.
Some of the largest most wealthy law firms have capitulated. Paul Weiss, Skadden Arps, and Milbank Tweed have all notably surrendered their lunch money to Trump’s bullying. Another huge firm, Kirkland Ellis, is reportedly in talks to give Trump their snack cakes every recess. Wilke, Farr, and Gallagher has also cut a deal with Trump, notwithstanding the opposition of one of their partners, former Second Gentleman Doug Emhoff.
Sure, these law firms are taking a page out of Vichy France (the French puppet government that collaborated with the Nazis), but they have company. The richest men in the world (Musk, Bezos, Zuckerburg) are all kissing Trump’s ass too, and wealthy academic institutions like Columbia University, are also groveling.
As Harvard law professor Lawerence Lessig put it:
Welcome to the Trump revolution, enabled by the most comfortable cowards humanity has ever known, and which people — and institutions—of principle, on the right and left, must stand together to resist.
It is shocking that lawyers and Universities of all people, folks who engage in conflict as their chosen profession, or traffic in principles and ideas, have simply forgotten the basic rules of dealing with a bully.
Not all lawyers are groveling. President Obama has encouraged resistance, and more than 500 law firms have filed an Amicus brief in support of the firm Perkins Coie, which has been specifically targeted by President Trump. These firms argue, correctly in my view, that by attempting to squelch the firms, Trump is undermining the basic rule of law. Tellingly, none of the largest firms in the US, have signed on to this brief.
As it stands today, lawyers — judges and advocates — are what stands between Trump and autocracy. If you think I am exaggerating, consider the case of Abrego Garcia.
Garcia escaped to America to avoid assassination from a Salvadorian criminal gang. He was granted asylum after a full hearing before an Immigration Judge during Trump 1.0. Trump’s department of homeland security chose not to appeal this ruling. Garcia lived with his brother and family in the Maryland area, had no criminal record, and was in the United States lawfully, and subject to a final judicial ruling that was not opposed by the Trump administration on appeal.
And yet..
And yet, he was arrested by ICE, and immediately deported to a gulag in El Salvador nominally reserved for terrorists.
Lawyers representing Garcia have challenged this action. The government (without material supporting evidence) says that Garcia is a criminal, but concedes that regardless it was “administrative error” to send him to El Salvador. So bring him back right? That’s exactly what the judge in the case has ordered. The administation’s response is shocking. When asked about the judge’s ruling on Friday, White House Press Secretary Karoline Leavitt responded that “We suggest the Judge contact [Salvadoran] President Bukele because we are unaware of the judge having jurisdiction or authority over the country of El Salvador.”
This is self serving stupidity. Sure a US court might not have jurisdiction over the leader of El Salvador. But is has jurisdiction of the head of DHS, the Secretary of State, even the President. The court can (and did) order that they do everything they can to bring Mr. Garcia back. This is obviously legal, and as Georgetown Law Professor (and Met fan!) Steven Vladek points out:
And at a more fundamental level, it would be rather stunning if the law were otherwise. A world in which federal courts lacked the power to order the government to take every possible step to bring back to the United States individuals like Abrego Garcia is a world in which the government could send any of us to a Salvadoran prison without due process, claim that the misstep was a result of “administrative error,” and thereby wash its hands of any responsibility for what happens next.
That’s where the absence of the rule of law is leading. That is why law firms, Universities, Silicon Valley Tech Bros, and everyone else should be resisting Trump. Because if we don’t, if he is free to do whatever he wants, he will round up Americans and send them to gulag’s in El Salvador and other places, successfully deploying the “oops” defense. “Oops” is not sufficient due process for the deprivation of life, liberty, and happiness. “Oops” is not constitutional. It is time to resist. It is time to lawyer up!
This point ignores wealth effects. Clearly the rich have an advantage because they can afford more and better lawyers. I may pick up this thread in another post, but not today.
The story of the Boston Massacre is very interesting, and an early example of propaganda and fake news. While most of the accused were acquitted, some were convicted of manslaughter (not murder) but were able to avoid prison by instead having the letter “M” branded between their thumb and forefinger. Go figure?!