The rule of law is under siege. It is taking incoming on all sides. The judiciary, the Department of Justice, the intelligence community, and the State Department have all been rebuked repeatedly, undermining their legal and moral authority. Our electoral process has been compromised and efforts to investigate the culprits, circumstances, and motives of the perpetrators have been resisted even as the intelligence community is in unanimous agreement that all signs point to Russian interference. That’s not to mention attacks on the Special Prosecutor charged with investigating “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump,” as well as “any matters that arose or may arise directly from the investigation.” If alarm bells are not going off by now, you probably skipped sixth-grade civics class or spent too much time in a Banana Republic.
In recent days, John Brennan, the former Director of the CIA and an outspoken critic of the administration, had his security clearance revoked. This caused thirteen former U.S. spy chiefs from Democratic and Republican administrations to sign a joint letter supporting Brennan and, implicitly, the right to free speech, freedom from politicizing intelligence activities, and the integrity of their professional colleagues. Journalists, in the crosshair of Executive rebuke and repeatedly labeled “the enemy of the people,” are also joining hands in opposition. The Boston Globe and more than 350 newspapers with diverse political bents published editorials declaring “Journalists are not the enemy.” Are you hearing the alarm bells from sources not prone to panic?
It’s time the legal profession voice its concerted opposition to the escalating assault on the rule of law. There are approximately 1.2M licensed attorneys in the U.S. As the rule of law’s early responders and ultimate guardians, lawyers and other legal professionals have standing and a professional obligation to speak out with similar conviction, clarity, and unanimity as journalists and intelligence leaders in support of the Constitution. Doing so would not be a political statement, although everything these days seems to be politicized- or cast that way. It’s about the defense of the rule of law- the stitching that binds our democracy.
The foregoing call to arms is not to imply that lawyers have sat on their hands as the siege has intensified. Many, including ABA President Hilarie Bass, have spoken out, and every day legal professionals around the country—and the globe—provide valuable legal services that reinforce adherence to the rule of law. But more must be done during these unusual and perilous times. If legal professionals are not swayed by higher angels to act, they should consider that failure to do so might ultimately result in most of them being out of business. There’s not a surfeit of lawyers in autocratic regimes.
The legal profession has regrettably allowed many in our society to conclude that they are already disenfranchised from the legal system and/or rendered unequal treatment by it. Consider that approximately 80% of Americans and two-thirds of all businesses cannot afford legal representation even when the need is acute. Absence of meaningful access to legal services (commonly called “the access to justice crisis”) is a cancer that metastasizes when-as now-the public is encouraged to believe that “the system is rigged.” Same for sentencing disparity and other statistical evidence of unequal treatment based on color and ethnicity. Those inequities are exacerbated by social media, a lethal vehicle for dissemination of false information, vitriol, and dangerous stereotyping. The legal system certainly has its flaws, but it’s a different story altogether when those in high office sow doubts about its legitimacy. Consider that in late-May a Monmouth University poll found that 43% of Americans think the Mueller probe should end.
It’s precisely for that reason that President Dwight Eisenhower created a national Law Day in 1958, noting “The clearest way to show what the rule of law means to us in everyday life is to recall what has happened when there is no rule of law.”
Legal professionals are busy people. The stresses of their everyday lives are intense and amplified by the rapid change the long staid legal marketplace is witnessing. Many in the industry—especially recent entrants confronted with daunting education debt—are trying to stay afloat. Others are attempting to read the tea leaves where the industry is headed and how to prepare themselves. Pundits reflect upon the diminishing life expectancy of the billable hour, the incursion of the Big Four, and the impact of artificial intelligence on legal delivery. Worthy concerns, all. But they are a footnote to the ebbing strength of the rule of law. That’s why the legal industry must voice its commitment to protect and defend it.
The American Bar Association, trial lawyers, the legal Academy, corporate counsel, law students, law firms, law companies, legal operations professionals, the legal tech community, and all that have a place in the legal industry’s increasingly large, diverse umbrella must answer democracy’s cry for help. Coming of age during the Vietnam/Watergate era, Crosby, Stills & Nash’s Long Time Gone lyrics echo in my ears:
Speak out you got to speak out against the madness
You got to speak your mind if you dare
We can no longer sit on our collective hands and must join them in opposition to this unprecedented assault on the rule of law. To put things in legal-speak:
Silence will result in irreparable harm and no adequate remedy at law will be available.
Govern Yourself Accordingly.