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Trump’s continued attacks on lawyers risks undermining the US legal system. Is that the point?

  • Written by Stephen Clear, Lecturer in Constitutional and Administrative Law, and Public Procurement, Bangor University

Since returning to office, Donald Trump has often called the US legal system into question. He has criticised judges as activists[1], challenged the role of the courts and insisted some firms do free legal work[2] in support of his administration’s causes to make up for working for some of his political opponents.

Meanwhile, Vice-President J.D. Vance has advised US Supreme Court chief justice John Roberts that he ought to be “checking the excesses”[3] of the lower courts.

And Stephen Miller[4], deputy White House chief of staff, said: “We are living under a judicial tyranny,” after the US Court of International Trade ruled the president didn’t have the power to impose international trade tariffs. Meanwhile, judges are asking for more security[5] to protect them from threats.

Trump’s federal investigations and volley of executive orders (presidential directives that don’t require legislative approval by Congress) have also put enormous pressure on law firms. And a recent report[6] shows that both trust in law firms’ independence, and even the rule of law[7] itself, is perceived as under threat in the US. But what does this mean, and why is it important?

Get your news from actual experts, straight to your inbox. Sign up to our daily newsletter[8] to receive all The Conversation UK’s latest coverage of news and research, from politics and business to the arts and sciences. The president has taken action against law firms in two prominent ways: First, by federal investigation. Specifically, letters to a group of 20 law firms from the Equal Employment Opportunity Commission[9]. These demanded information about their diversity, equality and inclusion (DEI) policies[10], based on the proposition that any sort of treatment of underrepresented groups that appeared preferential to them in policy, or practice, was unequal treatment for other groups, and, consequently, discriminatory[11]. Second, the president has passed numerous executive orders[12] introducing punitive measures on specific law firms that previously represented clients opposing his administration, or employed attorneys involved in past investigations against him[13]. His administration has also revoked government contracts and suspended security clearance from buildings. In practice, the orders would prevent attorneys from accessing from where they work, such as courthouses and federal agencies[14]. In response, some prominent law firms have sought to mitigate the fallout with the Trump administration by entering into agreements with it. These have included pledging US$1 billion (£730,000,000) in pro bono (free) legal services[15] supporting causes aligned with Trump’s agenda. For example, support for veterans, representing police officers[16], and antisemitism prevention. Noteworthy is that law firm Paul, Weiss, Rifkind, Wharton & Garrison have now agreed[17] to discontinue certain DEI policies, in addition to committing US$40 million (£29.4 million) in pro bono work for the president’s causes. In response the Trump administration has now lifted restrictions against them[18]. Judges say they are under threat. More broadly, it has been reported[19] that 70% of the US Justice Department civil rights division’s[20] attorneys are leaving their posts. The mass exodus is believed to be part of attempts to reshape the division into one focused on enforcing executive orders. The consequences of these developments are that the president’s actions have led to a significant realignment in the legal professions. Some US attorneys have reported that law firms are now more hesitant to engage in pro bono work [21] that could be viewed as opposing the administration’s policies. By contrast, some lawyers are now trying to establish independent firms[22] aimed at defending civil servants and challenging federal overreach, ensuring at least some, albeit less resourced, support for underrepresented groups. Trump criticizes judges and legal activists. Other lawyers have sought legal action against the orders[23] as unconstitutional interference. Some of these have led to success. For example, Perkins Coie[24] challenged theirs and got it struck down. The concern here centred around their representation of Democratic presidential candidate Hillary Clinton. In arriving at the decision, the district judge ruled the president’s actions to be an “overt attempt to suppress and punish certain viewpoints”[25]. These developments call into question the balance between governmental influence and the independence of lawyers in upholding the rule of law. Lawyers must be impartial in representing their clients[26] in order to effectively represent their interests, and allow the judiciary to fulfil their duty of checks and balances[27] on the government’s decisions. When unfettered power is wielded by the government, and the law is undermined, scope for monitoring the constitutionality of decision making is compromised. The rule of law[28] is a foundational principle of western democracies. It means that everyone is subject to the law, including governments. Laws must be applied equally, fairly and consistently, and no one is above them. In essence, laws govern the nation, not arbitrary decisions by individuals in power. In that sense, following the rule of law helps prevent tyranny, protect people’s rights and liberties, and ensures a stable and predictable society. In order to deliver these objectives, an independent legal sector is needed. Trump’s actions are a threat to achieving this cornerstone[29] US constitutional principle. Some[30] have gone as far as to suggest that by entering into agreements with Trump, law firms have become subsidiaries of his administration. A recent study on trust in the rule of law[31] found that Americans’ trust in lawyers was already undermined, even before the second Trump administration. The results[32], based on public attitudes in 2024, compared public perceptions in Germany, the Netherlands, Spain, Italy, Norway, the UK and the US. Norway and the UK ranked highest in respect of trust in the rule of law (81% and 74% respectively), and Spain and Italy were least trusted (49% and 43%). The results for the US are interesting. Around 71% of American respondents stated that they had a high level of trust in the rule of law. Yet the country came third from the bottom under the metric “you feel like you are in good hands in US courts”. The reasons for this are implied in the responses to the other questions[33] in the survey. The US performed second worst (just behind Spain) in respect of belief that judges could be biased. The US also performed worst of all in the category where the public were asked if lawyers were impartial (just 41% agreed). In interpreting these results[34] it is important to note that the survey was conducted in 2024, prior to Trump’s second term. But anti-elite and anti-judge rhetoric[35] pointing to arguments for more presidential power and less judicial oversight had already been prominent in the first Trump term, and the 2024 campaign. The results expose the already fragile nature of trust in the legal sector in the US, and underline how this could be ramped up further after the announcements in recent weeks.

References

  1. ^ judges as activists (www.axios.com)
  2. ^ some firms do free legal work (www.cbsnews.com)
  3. ^ “checking the excesses” (www.newyorker.com)
  4. ^ Stephen Miller (www.nytimes.com)
  5. ^ more security (www.washingtonpost.com)
  6. ^ a recent report (www.arag.com)
  7. ^ rule of law (worldjusticeproject.org)
  8. ^ Sign up to our daily newsletter (theconversation.com)
  9. ^ Equal Employment Opportunity Commission (www.eeoc.gov)
  10. ^ diversity, equality and inclusion (DEI) policies (abcnews.go.com)
  11. ^ discriminatory (www.lawgazette.co.uk)
  12. ^ executive orders (www.whitehouse.gov)
  13. ^ against him (www.cbsnews.com)
  14. ^ courthouses and federal agencies (www.cbsnews.com)
  15. ^ legal services (www.wsj.com)
  16. ^ representing police officers (www.reuters.com)
  17. ^ agreed (www.whitehouse.gov)
  18. ^ lifted restrictions against them (www.bbc.co.uk)
  19. ^ reported (www.npr.org)
  20. ^ US Justice Department civil rights division’s (www.justice.gov)
  21. ^ more hesitant to engage in pro bono work (www.nytimes.com)
  22. ^ establish independent firms (www.theguardian.com)
  23. ^ legal action against the orders (www.lawgazette.co.uk)
  24. ^ Perkins Coie (www.whitehouse.gov)
  25. ^ “overt attempt to suppress and punish certain viewpoints” (www.aljazeera.com)
  26. ^ impartial in representing their clients (www.americanbar.org)
  27. ^ checks and balances (constitution-unit.com)
  28. ^ rule of law (publications.parliament.uk)
  29. ^ cornerstone (www.uscourts.gov)
  30. ^ Some (www.nytimes.com)
  31. ^ trust in the rule of law (www.legalfutures.co.uk)
  32. ^ results (www.arag.com)
  33. ^ other questions (www.arag.com)
  34. ^ results (www.arag.com)
  35. ^ rhetoric (www.aljazeera.com)

Read more https://theconversation.com/trumps-continued-attacks-on-lawyers-risks-undermining-the-us-legal-system-is-that-the-point-256960

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