Standing Up for the Rule of Law
“Too many of us have taken our democracy, our rule of law, our civic norms and our freedoms for granted.”
SOMETIMES POLITICAL TRENDS are hit-you-over-the-head obvious. Other times, you have to stand back and squint to detect the pattern. If you look at a handful of seemingly disparate events across the country from the last few weeks, you will see something promising for our future: defenders of the rule of law working against Trumpist attempts to erode it.
First up, a story from the American Bar Association, that once-stodgy mainstay of the lawyering profession. On August 2, the ABA’s bipartisan Task Force on Democracy sounded a call to arms to lawyers to get active defending the rule of law.
The task force is headed by Michael Luttig, the conservative icon and retired federal judge, and Jeh Johnson, the secretary of homeland security during President Barack Obama’s second term. Several of the task force members are prominent lawyers—including Maureen O’Connor, a former chief justice of the Supreme Court of Ohio; Thomas B. Griffith, a retired Republican-appointed federal judge; Ben Ginsberg, the preeminent Republican expert on election law; and Jeff Rosen, a liberal legal-affairs commentator who runs the National Constitution Center. Other well-known task force members include Dick Gephardt, Heather Cox Richardson, Danielle Allen, Carly Fiorina, Chris Krebs, and The Bulwark’s own Bill Kristol.
“The challenges we are facing cannot be solved by legislators or a president alone,” the task force warned in a statement. All of us have a responsibility to help address them, with those in the legal profession having a heightened role:
Lawyers have the unique skills and obligation to defend democracy, the Constitution and the rule of law as each takes an oath to do just that. Every American lawyer must play a significant role in rebuilding trust in our elections, educating the public on the rule of law and how democracy and the Constitution underpin what we all value in our everyday lives.
The task force’s document includes lists of specific actions that lawyers and bar associations can take to stand up for democracy, from becoming poll workers to writing articles countering disinformation to hosting civic events.
SECOND, THE BODY THAT GOVERNS THE ABA, its House of Delegates, this week adopted a statement of principles that was issued by the Society for the Rule of Law. The society is composed of some of the country’s most eminent conservative lawyers, all of them Republican or formerly Republican. Their “Statement of Principles to Preserve, Protect, and Defend the Constitution, the Rule of Law, and American Democracy,” now joined in by more than 2,000 lawyers across the country, includes these pledges:
To support and defend the fundamental American principle that no person is above, beneath, or beyond the law.
To respect, support, and defend the constitutional rights of all Americans.
To accept, honor, and respect the results of elections by the American people.
To respect, support, and insist upon the peaceful transfer of power upon which our constitutional republic is premised and depends.
These principles once seemed like apple pie. They help form the foundation of a constitutional republic—one where, as Tom Paine put it in Common Sense, “the law ought to be king.”
But in the last decade, Donald Trump and his lawyer-enablers repeatedly attacked those principles, most infamously while attempting to overturn the 2020 election.
Those enabling, unethical attorneys did not go unchallenged. Important lawyer-activist groups stood up to defend their profession and its ethical standards. Activist professional groups filed successful disciplinary complaints against the likes of Rudy Giuliani, John Eastman, Jeffrey Clark, and Lin Wood.
Now, the ABA has mounted the barricades to defend the precepts that uphold our democracy. The adoption of the Society for the Rule of Law principles and the document from the Task Force on Democracy are both permission slips and a catalyst for individuals and legal organizations to join the defense of the rules that ensure our safety and freedom.
That includes Big Law, the country’s major law firms, whose silence, with few exceptions, has been deafening.
NOW FOR THE THIRD MAJOR DEVELOPMENT. On Tuesday, from Arizona, we learned two things about the grand jury of ordinary citizens who back in April indicted Giuliani, Mark Meadows, and Republican fake electors from the scheme to overturn the 2020 election.
First, the grand jury had wanted to indict Trump himself, the central actor in seeking to destroy the lawful transfer of power. The Arizona attorney general’s prosecutors reportedly recommended against it to avoid further complicating the former president’s federal prosecution. Leaving him out, of course, would also simplify an already complex case for Arizona prosecutors.
Then it was reported that lawyer Jenna Ellis, Giuliani’s sidekick after the 2020 election, agreed to cooperate with the Arizona prosecutors. Along the same lines came the news that one of the indicted fake electors has pleaded guilty.
Activist lawyer groups had previously succeeded in having Ellis disciplined last year for her ethical breaches, demonstrating that efforts to ensure accountability to rules and law can register in serious consequences.
We are seeing how the law is a force to be reckoned with—but only if it is defended and acted upon when under assault. That is what connects the news from the ABA and from Arizona Attorney General Kris Mayes, whose office brought the indictments. Both the primary professional organization in the law and its defenders in a state prosecutor’s office are standing up for the rule of law and the integrity of the legal profession.
Institutions fail without action in their defense. That’s what the ABA has done. And that’s what the Arizona prosecutors and grand jury did.
What happens in politics and what happens in law are intertwined. Mayes, you might remember, was elected by a margin of just 280 votes. Had it not been for every citizen who voted, there would have been no Arizona prosecution of Giuliani, Meadows, and the fake electors in that pivotal battleground state. Likewise, the outcome of this November’s presidential election will determine whether Trump himself will face justice for his attempt to overturn the 2020 election. If he wins re-election, his federal prosecutions will judder to a halt.
Donald Trump and his MAGA party are trying to destroy the rule of law in our society. Prosecutors like those in Arizona and organizations like the ABA have stepped forward to defend it. Each of us can, in our own way, join in this effort. This is not a moment to stand on the sidelines wondering whom the rule of law protects. It protects all of us.
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