June 28, 2021
February 19, 2021
Editorial credit: Jim Lambert / Shutterstock.com
At its inception, Lawyers Defending American Democracy might well have been called Lawyers should be Defending American Democracy. For four years, there was a dearth of voices from bar associations, law schools, and other leaders of the legal profession willing to sound the alarm at the normalization of falsehood and attacks on the rule of law.
The January 6 assault on the Capitol demonstrated that the attacks on the election process included an intent to overthrow democracy, even if by force. That event finally drove some in the profession who had previously been silent to speak out about the peril in which our country finds itself. Yet we must ask—why is there still so much silence from this profession?
Is it because they deem speaking out about anything relating to an election or that involves politics to be “political”? Is it because they fear offending clients? Is it because firm leaders believe themselves and their businesses to be distant from the crisis in American democracy?
In a call to action issued the day after the attack on the Capitol building, the law firm of Crowell & Moring LLP stated concisely why these arguments are specious:
Lawyers have no special province when it comes to politics. We have our views, like all citizens, and we should act on them. But when it comes to defending our Constitution and our system of laws, we have a special duty and an exceptional perspective. In this moment, we must speak out, in devotion to these bedrock principles of our nation. As leaders of the legal community, we call for action.
Within two days, eighteen law firms had joined Crowell’s call for the invocation of the 25th Amendment to remove President Trump from office. The Crowell firm correctly recognized that taking a stand against sedition is not political or partisan. It is an expression of our dedication to the rule of law and a rejection of mob rule that threatens all of society. Lawyers from both parties and who represent a wide range of political views must recognize that the survival of our democracy is not a political but an existential challenge.
Even law firms that do not speak up as firms should state expressly to their lawyers and employees that they are free to speak out publicly against abuses of the rule of law and in support of our democratic institutions without fearing the firm’s disapproval.
Bar associations, as well, have a critical role to play, but have similarly sidelined themselves from aggressively responding to the attacks on our democracy. It was heartening to see some associations respond to the siege on our Capitol. For example, the American Bar Association condemned the assault as criminal conduct and cited the peaceful transfer of power as a revered American tradition. The New York City Bar Association called for President Trump’s removal from office, either by means of the 25th Amendment or by congressional action, on the basis of his incitement of the rioters and his attempt to extort state officials into subverting the results of the 2020 election. Sadly, however, most bar associations have remained quiet.
All lawyers should fulfill the responsibility that belongs to the bar alone. For example, LDAD has initiated bar disciplinary proceedings against William Barr in the District of Columbia and Rudolph Giuliani in New York. Lawyers should initiate disciplinary proceedings against other lawyers who violated their ethical obligations by engaging in dishonest or fraudulent conduct with the aim of undermining democracy. Such lawyers are a scourge on our profession, and bar discipline may be the only meaningful form of accountability.
As attacks on our fragile democratic systems continue, our country needs lawyers and legal organizations to help us re-set “normalcy”— belief in truth and defense of democratic institutions. Denouncing false facts or threats of violence must never be viewed as partisanship. We stand with those who have spoken out, and ask those who have not to join us.