Comparing Trump's Attack on Lawyers to NCAA March Madness
Shakespeare emboldened centuries of anti-attorney sentiment with the line, “First thing we do, let's kill all the lawyers,”1 but Donald Trump is actually trying to kill America’s legal system. Specifically, he wants to end your ability to challenge his actions in court.
Let’s put this in context and maybe even move people to the lawyers’ side for a change.
First, don’t let them reframe the basic argument
Trump wants you to think that because he won the election, he gets to do everything he wants and that any judge who tries to stop him should be impeached.
That’s never how America has worked. We have a constitution and a set of laws that limit how the government can behave. These laws are for our protection as citizens against the more powerful government.
If the government goes beyond those laws—if it tramples on our voting rights, deports our neighbors just because they have “scary looking” tattoos, or terminates workers in violation of employment laws—we have the right challenge those actions.
To file challenges we need two things: (1) impartial judges who can’t be impeached, and (2) lawyers willing to take the cases.
Second, let’s review Trump’s latest attacks on lawyers
It’s been a difficult stretch for those who care about using the law to protect against government overreach. Trump has issued executive orders punishing reputable law firms just for having clients like Hillary Clinton and Jack Smith. Two firms are fighting back, but one tragically caved and made an embarrassing deal to save itself.
That third firm’s surrender emboldened Trump. Within hours, he dramatically expanded his attacks on lawyers in a midnight memo that named a third law firm2 but applied broadly to any lawyer in any case against the government.
Trump’s memo orders the Attorney General to review cases back to the first Trump Administration to identify any “frivolous, unreasonable, and vexatious” cases or any “ethical misconduct” by attorneys in the cases. The AG can then seek to impose fines or take “other appropriate actions” against the lawyers.
This makes my blood boil. Any lawyer who litigated any case (including pro bono cases!) against Trump 1.0 or 2.0 could be fined (or worse) if AG Bondi thinks the case was “frivolous” or merely “vexatious.”
Even worse, the memo attempts to rig the game in Trump’s favor going forward: It’s meant to chill lawyers’ willingness to represent clients against Trump in deportation, election, and other cases.
An analogy to March Madness
I’ve been trying to come up with an analogy to illustrate this attack.
We’re in the middle of March Madness, with the men’s and women’s NCAA basketball tournaments in full swing.
Let’s say the NCAA issues a new rule to protect the top seeded team in the tournament. They explain that these are the best teams in the country, they’ve won the most games, the fans want to see them win, and they deserve to keep winning.
Other teams are, of course, still allowed to play in the tournament against the #1-seeded teams. They’re even allowed to have coaches in those games. However, the new rules say that after every game against a top-seeded team, the head coach for the #1 seed gets to decide if any plays the opposing team ran were “unfair, unsportsmanlike, or overly annoying.” If so, the coaching staff for the opposing team could face monetary fines or could be banned from coaching basketball.
There is no appeals process — the head coach of the #1 team gets final say on whether any of the plays were “unfair, unsportsmanlike, or overly annoying” and what the appropriate penalty is. As a result, opposing coaches back off from any aggressive plays and the #1 seeds cruise to easy victory.
We are all the opposing team in the real life version of this analogy. They’re trying to rig the game against us, and the stakes are even more dire than a shot at the national championship.
Henry VI, Part 2, Act IV, Scene 2.
Trump’s March 22 attack memo mentions the Elias Law Group. His previous Executive Orders punish Covington & Burling, Perkins Coie, and Paul, Weiss. The firm that reached a settlement was Paul, Weiss. Note that your author worked at Perkins Coie for eight years and the Elias Law Group for two years.