June 28, 2021
May `17, 2021
Editorial credit: J Scott Applewhite/AP/Shutterstock
This is a call to action by all lawyers in this great Nation. We may differ in our political philosophies, in our views about public policy, and in our approach to social issues around which debate is currently raging. But we are united in certain fundamentals. We know that facts matter. We know that when facts are in question, evidence yields answers. We know that adherence to the rule of law is a fundamental component of the ordered society in which we live. Indeed, confidence in the rule of law underlies the advice we give and the professional actions we take on a daily basis.
Before she was formally exiled but knowing what lay ahead, Cheney made a forceful speech on the House floor. Accurately describing herself as “a conservative Republican,” she said that “the most conservative of conservative principles is reverence for the rule of law.” Continuing, she said that “the Electoral College has voted. More than 60 state and federal courts, including multiple judges the former president appointed, have rejected his claims. The Trump Department of Justice investigated the former president’s claims of widespread fraud and found no evidence to support them. The election is over. That is the rule of law. That is our constitutional process. Those who refuse to accept the rulings of our courts are at war with the Constitution.” Then came some fire. “[T]oday,” she said, “we face a threat America has never seen before. A former president who provoked a violent attack on this Capitol in an effort to steal the election has resumed his aggressive effort to convince Americans that the election was stolen from him. He risks inciting further violence.”
The reaction of her Republican colleagues was telling. Not wishing even to hear her evident truths, virtually all of them left the House chamber before she began. Later, in a closed-door session that took 15 minutes, they ejected her from her leadership position on a voice vote so there would be no record of who supported her removal and who opposed it.
Cheney’s ouster and the crude manner of its execution highlight the descent of a great political party into a band of adherents to a morally bankrupt authoritarian and to an America in which the right to govern is gained by lying to the American electorate. That descent has been going on for some time but its speed, aided by party leaders with no greater interests or vision than their own ability to remain in power, has picked up since the November election.
The actions of Kevin McCarthy and Mitch McConnell, two of the most visible and powerful of the Republican Party’s national leaders, illustrate the point. McCarthy, the minority leader who led the movement to push Cheney out, said on the House floor the day after the January 6 attack on the Capitol that “The president bears responsibility for Wednesday’s attack on Congress by mob rioters. He should have immediately denounced the mob when he saw what was unfolding.” After being summoned to Mar-a-Lago for a dressing down, he now denounces Cheney for saying the very same thing.
On the floor of the Senate following its refusal to convict Trump on impeachment charges following that attack, McConnell said that the attackers had “been fed wild, falsehoods by the most powerful man on earth because he was angry [that he had] lost an election. . . . The [attackers’ actions were] . . . a foreseeable consequence of the growing crescendo of false statements, conspiracy theories, and reckless hyperbole, which the defeated president kept shouting into the largest megaphone on planet Earth.” Today, the defeated president’s shouts continue unabated but McConnell now remains resolutely silent when asked about them.
So, we as lawyers simply must act. This is not a partisan imperative. It is not about campaigning for particular candidates, pressing particular social issues or enlisting support for particular causes. Instead, it’s about fundamentals.
Individually in one-on-one conversations, through op-eds or letters to the editor, through bar associations, as corporate counsel, as law school deans and faculty, as law-firm partners and otherwise, we must speak out in every way we can about the metastasizing alternative reality that is invading the body politic and about the monstrous lie about stolen elections the former president and his acolytes are spreading.
Nothing less than the survival of our democracy is at stake and we as lawyers surely know that. We simply cannot stand by and hope that things will settle down. Now is the time for action in whatever way we can.