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Donald Trump’s drive to install himself as elected dictator can succeed only if he destroys the rule of law in the United States. Trump has already eliminated Congress as an independent lawmaking body by reducing the Republican Party—which holds majorities in both houses—to a band of quaking sycophants. In the executive branch, by declaring himself the sole authoritative interpreter of law and systematically firing anyone who dissents or indeed might do so, he has made the Führerprinzip the rule of legal decision.
At present, all eyes are on the federal judiciary as it considers challenges by state and local governments and private actors to the Trump administration’s many illegal initiatives. The conventional thinking is that judges are the last line of defense and that if the courts acquiesce in Trump’s grab for dictatorial power or if Trump simply defies judicial orders, as he may have begun to do over the weekend, Trump’s triumph will be complete.
The federal judiciary is certainly key, but it is a mistake to view judges in isolation. The true obstacle between Trump and dictatorship is not the judges alone but the entire legal system and the legal profession—judges and lawyers.
The law and lawyers handed Trump his biggest setbacks in his first term. Lawyers persuaded judges to block some of Trump’s worst executive actions. Lawyers also persuaded judges to reject Trump’s phony claims that the 2020 election was rigged. Less appreciated but equally important were the principled lawyers inside the federal government who provided honest legal guidance and repeatedly refused to carry out illegal orders.
This time around, Trump is taking aim at the entire legal profession. He and his lackeys denigrate judges and may have begun to openly defy the courts. He is firing or attempting to cow honest lawyers within the executive branch. Simultaneously, he is trying to intimidate lawyers in private practice—beginning with prominent firms like Perkins Coie, Covington & Burling, and Paul Weiss—who have opposed him before or might now take cases against him.
The legal profession as a whole must fight back. It has tools to do so, if it will use them. Consider how the profession can deal with government lawyers who have enlisted in Trump’s assault on the rule of law.
There are three key points:
First, Trump needs a large cadre of government lawyers to align with him. He needs them now to defend particular maneuvers in his attack on constitutional order. And if he succeeds in transforming America into a de facto dictatorship, he will need lawyers to staff the remaining Potemkin legal system. All modern dictatorships have maintained the forms of law as legitimizing cover for totalitarian criminality—Hitler’s Germany, the Soviet Union, the People’s Republic of China.
Second, law is an oath-bound, self-regulating profession. You cannot practice any kind of law anywhere in the United States—whether giving contract advice to a local hair salon or representing the U.S. in federal court—unless you are admitted to the bar of at least one state and take an oath to support and defend the Constitution. Admission to state bars is controlled by the profession through varying cooperative arrangements between state courts and state bar associations. Likewise, each state has procedures for disciplining admitted members who have violated the law or professional ethical standards.
Third, federal judges control who can practice in their courts, both by establishing general qualifications for admission and by enforcing disciplinary processes for lawyers who violate the law or professional ethics.
There will always be some lawyers willing to do an autocrat’s bidding, principally fools, cowards, unprincipled careerists, and some sincere, committed fascists. There will also be some who don’t quite fit those categories but who will convince themselves that their professional obligation to represent clients zealously extends to bending or obscuring facts or advancing legal theories they privately think outlandish and dangerous.
Indeed, the adversary character of our legal system, with its attendant commitment of lawyers to zealous representation, complicates the suggestion that the legal profession take affirmative steps against government lawyers acting on behalf of even an aggressively authoritarian regime. However, there are, in my view, limits beyond which a government lawyer ought not go, and also limits beyond which a government lawyer absolutely may not go.
As to the first, government lawyers ought not advance positions that, even if arguably defensible upon strained readings of the Constitution and laws, plainly tend to undermine the basic structure and protections of American constitutionalism. Although government lawyers who espouse such theories should not be, on those grounds, subject to professional discipline, they can—and, I think, should—generally be shunned by the profession. Lawyers who take this road should know that once the Trump era ends, their professional paths will be rocky and they will not be welcomed back into the fraternity of those who believe in the rule of law.
More concrete measures are available where government lawyers violate the law or ethical rules. But persuading judges and the bar to use them requires people trained to hesitant moderation to recognize the dire, unprecedented challenges the country faces.
Consider as an example the behavior of acting Deputy Attorney General Emil Bove in seeking dismissal of the corruption case against New York Mayor Eric Adams. The Biden Justice Department indicted Adams for public corruption, Adams cozied up to Trump, including shifting his public position on immigration enforcement, and once Trump was in office, Bove ordered the Manhattan U.S. attorney’s office to dismiss all charges against Adams without prejudice. Bove’s letter justified the dismissal on the grounds that Adams’ indictment and impending trial would affect the mayor’s “ability to support” federal efforts to stem “unlawful mass migration and resettlement.”
Critically, the proposed dismissal without prejudice would give the Trump administration continuing leverage over Adams on immigration enforcement and, indeed, on any other question. Should Adams fail to please the president, new charges could be refiled.
On Feb. 13, the acting U.S. attorney in Manhattan, Danielle Sassoon, resigned rather than dismiss the case. In a letter to Attorney General Pam Bondi, Sassoon characterized Bove’s proposed resolution of the case as an improper “bargain.” Six other Southern District of New York federal prosecutors resigned rather than acquiesce to taking part in Bove’s deal.
Bove then transferred the case to DOJ’s Public Integrity Section, in Washington. The acting head of that section and three other senior section attorneys refused to drop the Adams charges and resigned. The following day, on a video call with remaining section prosecutors, Bove demanded that someone sign the dismissal request within an hour. One senior lawyer did, believing that doing so would save the jobs of the others. As it proved, this sacrifice was in vain. On Tuesday, the Public Integrity Section—the hub of federal anti-corruption prosecutions—was disbanded as a litigating unit.
In sum, 11 federal prosecutors resigned rather than sign on to Bove’s bargain, and an entire section of the Justice Department was demolished in the wake of its reluctance to do so.
Bove’s bargain is a violation of prosecutorial ethics. The American Bar Association’s Standards of the Prosecution Function (Standard 3-4.4) prohibit the exercise of prosecutorial discretion based on “partisan or other improper political … considerations.” And as Sassoon’s letter pointed out, the DOJ’s own Principles of Federal Prosecution (Section 9-27.260) prohibit initiating or declining charges based on a defendant’s “political association, activities, or beliefs.” Moreover, there is an arguable case that the Adams dismissal agreement is a form of criminal bribery under 18 USC Section 201(b)(2).
Judge Dale E. Ho is now considering whether to grant Bove’s motion to dismiss Adams’ case without prejudice under Federal Rule of Criminal Procedure 48. Ho appointed outside counsel, Paul Clement, to brief the question.
Clement’s brief notes that although the court can deny a motion to dismiss, it cannot force the DOJ to prosecute a case. Therefore, he recommends that the judge dismiss the case, but with prejudice, thus eliminating the feature granting Trump future leverage over the mayor.
This is a perfectly adequate lawyerly recommendation on the narrow question of how to resolve the motion to dismiss. But Clement goes further, recommending against holding any evidentiary hearing to establish the truth of conflicting factual claims between Bove and the prosecutors who resigned because, says Clement, the essential nature of the conflicting positions is already plain. Here Clement totally misses the boat by either misunderstanding or choosing to ignore the stakes in this case.
The disputed factual issue is not some trifling misunderstanding between prosecutors and defense counsel over minor terms of a plea agreement, nor is it about a legitimate policy disagreement within layers of the Justice Department hierarchy. Rather, multiple senior federal prosecutors in New York and Washington have expressly, in carefully worded written declarations, or implicitly, through the drastic step of resignation, accused the second-ranking DOJ official of politically tainted, professionally unethical, possibly criminal conduct.
Critically, Ho cannot rely on the established tradition of DOJ independence of the president or the derivative presumption that the department’s lawyers are fundamentally honest and that any serious allegation of professional impropriety will be promptly addressed by internal ethics mechanisms or, in a case involving potential criminality, by appointment of a special counsel. The reality is that Bove’s behavior in the Adams case manifests an evident top-down policy of transforming the DOJ into an instrument of reward and punishment for presidential allies and foes.
Ho and his judicial colleagues confronting analogous cases need to stop thinking like single judges dealing with a single awkward case. Rather, they need to recognize that they are representatives of the justice system and the legal profession confronted with an unapologetic attack on the rule of law. When government lawyers misbehave, federal judges must be more assertive in the exercise of their powers as members of the judicial branch and as integral players in disciplinary mechanisms of the legal profession.
If confronted by apparent government attorney misconduct or apparent defiance of court orders, judges should first do the very thing Clement rejects—insist on determining the facts. Do not accept vague unsworn platitudes. Put the relevant witnesses, including lawyers, on the stand under oath. Let counsel adverse to the government ask questions. If the case is one like the Adams matter, where the government may be improperly colluding with the other side, judges should ask questions themselves. They should make factual findings. This alone would serve the immensely valuable purpose of advising the public of the judicial view of government misbehavior.
Second, when appropriate, judges should use their civil contempt powers promptly and sternly. As I have written elsewhere, there is, distressingly, some doubt that the Marshals Service would enforce contempt remedies against executive branch officials. But the test must be conducted. At the worst, direct executive branch defiance of judicial contempt orders will clarify for the public the true nature of the Trump regime.
Finally, if a reasonable basis exists to believe that government lawyers have misrepresented facts to the court or otherwise behaved unethically, judges should promptly refer offenders to disciplinary authorities of the court or the relevant state bar. As the Supreme Court held in Imbler v. Pachtman, the government lawyer “stands perhaps unique, among officials whose acts could deprive persons of constitutional rights, in his amenability to professional discipline by an association of his peers.” The organized bar should address judicial referrals of misbehaving government lawyers without hesitation and, when merited, with stringent punishment. Even amoral or timorous lawyers will hesitate to misbehave if it becomes clear that doing so endangers their livelihood.
The rule of law in America is in peril. The formal institutions created by the Constitution to ensure the survival of the rule of law are wavering. But the idea that law, not one man, should rule is older than the Constitution. That idea is, or should be, the bedrock commitment of the legal profession. Indeed, we lawyers tout it all the time, at least when our professed devotion has no cost. The question now is whether the legal profession will use its power over its own members to ensure that law survives.
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