If Washington’s Shakespeare Theater stages King Henry VI, Stephen Miller would be perfect for the role of the villain Jack Cade who wanted to “kill all the lawyers.”
The lawyers, for the most part, have risen to challenging the Donald Trump-Miller unchecked use of government power.
This is vitally necessary: the Justice Department has turned into a wholly owned Trump subsidiary and congressional Republicans have abdicated any oversight role. Much of the business community and even major media organizations are tempering criticism of Trump.
One of the first orders of authoritarian regimes is to break the lawyers, wrote Yulia Navalnaya, widow of the murdered Russian dissident Alexei Navalny: “Lawyers document repression and slow down its momentum, offering moral oxygen to those resisting the regime.”
Only weeks into his second term Trump, with Miller, began fleecing big law firms for employing or defending people Trump considers enemies. Disgracefully, many of these major firms capitulated, paying off Trump and carefully avoiding any actions that might offend him, including some pro bono work for those that can’t afford it.
However, the Washington firms that successfully fought Trump’s shakedown are taking him on as are smaller firms.
“This is a very exciting challenge for lawyers; with big stakes the legal profession has done really well,” says Greg Craig, a prominent Washington attorney. He is representing the National Historic Trust’s challenge to Trump’s unilateral decision to build a massive new ballroom without seeking required approval from the relevant commissions and Congress.
The senior counsel at Foley Hoag also is involved in successfully overturning the Administration’s illicit firing of the director of the Voice of America.
A number of high powered legal groups have formed this year for the explicit purpose of protecting against the Trump threat.
When Trump challenged the legitimate 2020 election results, Melissa Moss, a Democratic activist, formed The 65 Project to file complaints against Trump lawyers who were violating the code of professional conduct. With the more expansive threats in Trump 2.0, they expanded to the Legal Accountability Center with the broader mission to hold accountable a plethora of Trump lawyers.
“We are filing a number of complaints against (Trump) lawyers not just to hold them accountable but to deter future actions,” says Michael Teter, the executive director. They have filed two complaints against Ed Martin, a Trump lawyer who was so incompetent his nomination for U.S. Attorney in Washington was pulled. He now has a position at Justice.
The first complaint was that as a government official he tried to absolve a defendant he represented in private practice; the Missouri bar association dismissed that. Still pending is another for stalking the home of New York Attorney General Letitia James, a top Trump target.
Last summer the Washington Litigation Group launched to take on Trump’s actions. The high-powered group includes Ellen Huvelle who was a federal judge for 20 years and Peter Keisler who has impeccable conservative credentials: co-founder of the Federalist Society, law clerk for Judge Robert Bork and even a short stint as acting Attorney General in the George W. Bush Administration.
Among others they’ve filed a suit over Trump renaming the John F. Kennedy Center to put his name on there, ahead of the martyred President for whom the iconic center was named six decades ago without getting the required congressional approval.
There are countless other challenges on spending actions, questionably legitimate appointments and executive actions. When the White House outrageously threatened to indict Jay Powell, the Federal Reserve chairman enlisted Williams & Connolly, the powerhouse Washington law firm.
This all is in stark contrast to those establishment New York law firms who gave their soul to Donald Trump. This has contributed to the American Civil Liberties Union’s problems getting enough lawyers to work on pro bono cases.
The greatest concern, however, is the midterm elections. Currently, there’s about an 80% chance the Democrats win the House and the Senate is a toss-up.
As much as he’d like to, I don’t believe Trump can call off the elections. But he’ll do everything else to sabotage a likely defeat, irrespective of legal impediments. This might well include sending in forces -- national guards, ICE, even troops --to intimidate voters before the election. Then impounding voting machines and ballots in Democratic precincts. Of course, they will peddle the canard that illegal immigrants are flooding the ballot boxes. Just look at Minneapolis to appreciate that absurdity.
The Trump team is much better prepared than 2020, especially with the full force of the Justice Department, FBI, Pentagon and Homeland Security ready to help.
The question then is are the Democrats?
The most visible Democratic election lawyer is Marc Elias who recently tweeted that he had beaten Trump 64 times. In reality, in 2020 the Biden campaign decided Elias, a Chuck Schumer confidant, wasn’t good enough to lead the post election legal battle.
They brought in Seth Waxman, of Wilmer Hale and former Solicitor General who enlisted two other former SG’s, Don Verrilli and Walter Dellinger, who passed away in 2022. Bringing in scores of lawyers, they led the effort in winning 60 cases against Trump. Elias and his law firm weren’t involved in most of these.
Don’t forget, some optimists note, the Supreme Court rejected Trump’s claims after the 2020 election. Yes, but those Republican judges, like most, thought Trump then was a dead man politically. This time don’t count on those Republican judges, like Brett Kavanaugh, going against their party.
To head off what really might be a steal, Democrats have to utilize the best lawyers and win decisively.
If Democrats don’t take the house and Senate then we have to finally admit that MAGATS are every bit as evil as Trump.
I suggest, however, that we reduce any credit by at least half to any ACLU lawyers whose efforts may be part of the current legal resistance to an over-reaching administration. After all, it was the ACLU that filed an amicus brief in support of the 2010 SCROTUS Citizens United decision that delivered the single, most impactful blow to fair and free U.S. elections since the founding of the Nation. And IMO the ACLU has a long, long way to go in order to make up for that blunder. Cheers!