Goodbye, rule of law USA

There are many pressing issues facing solicitors: the state of our regulation, and the impact of the UK spending more on defence at a time when our legal system can barely function for lack of resources.

But I still think that events unfolding in the USA may have more impact on us. We have rarely been offered the opportunity to watch the rule of law breaking down – covering lawyers and judges – so quickly and right before our eyes. We must learn the lessons, if we are to guard against similar events here.

Lawyers and judges are both being attacked if they have not shown loyalty to the leader.

Just this last weekend, the president, when asked about the fact that he has picked on two law firms for retribution, said in reply: ‘We have a lot of law firms that we're going to be going after, because they were very dishonest people. They were very, very dishonest. We have a lot of law firms that we're going after.’

Sanctioning named law firms for alleged dishonesty without prior and proper legal procedure is not only not his job (there are courts and state bar associations for that), but it also obviously runs against principles of the rule of law, in which the legal profession is independent, particularly of the government. In addition, experts say his actions are in breach of US constitutional protections.

The two firms which have so far been sanctioned in documents the president personally and publicly issued are:

• Covington & Burling (chosen because of pro bono work for the special counsel who brought two criminal cases against him), and

• Perkins Coie (chosen because of work for the Democrats during the 2016 presidential campaign, with the executive order opening with these words: ‘The dishonest and dangerous activity of the law firm Perkins Coie LLP … has affected this country for decades’.)

Both firms suffered revocation of security clearances and contracts. Bar associations, including the American Bar Association (ABA), have been writing to authoritarian governments for decades when law firms have been singled out by governments because of work they lawfully undertook – and here it is happening in our so-called leading democratic country.

Even before an order was issued against the first law firm (Covington), it was reported that law firms had begun self-censoring their client list, because they knew what was coming. Some firm leaders refused to act for those (for instance, government employees suddenly sacked) who wanted to sue the current government.

The same report cited a big law firm partner whose comment highlights the crisis: he had never witnessed this level of law firm anxiety over their jeopardising their economic future by protecting the rule of law.

How quickly has the lawyer’s universal boast that he or she acts for everyone without fear or favour been put to the test.

(And yet the picture is not so black-and-white. Some lawyers continue to assist the government’s opponents behind the scenes, with a third law firm signing the documents. And some law firms have positively signalled their willingness to act for the new government in the hope of finding lucrative work. And, even more significantly, Perkins Coie has found a highly respected law firm to fight the executive order issued against it).

The ABA has boldly issued another long dissenting statement. It says all one might wish such a statement to say (‘We will not stay silent in the face of efforts to remake the legal profession into something that rewards those who agree with the government and punishes those who do not’).

The ABA statement also focuses first on judges rather than lawyers. That is because ‘High-ranking government officials (appointed and elected) have made repeated calls for the impeachment of judges who issue opinions with which the government does not agree’ and ‘There have now been statements by officials criticizing judges for not following the will of the people.’

The only people standing between some last remnant of the rule of law and the whimsical rule of an elected monarch are the courts. It may not be surprising that Elon Musk has attacked judges in more than 30 posts since the end of January on X/Twitter, calling them ‘corrupt,’ ‘radical’, ‘evil’ and criticising the ‘TYRANNY of the JUDICIARY’, as well as reposting nearly two dozen posts by others attacking judges.

Amy Coney Barratt, the Supreme Court Justice who was appointed by president Trump but sided with the majority against the government in a recent decision on payment of funds, faced a pile-on afterwards from Trump supporters; for instance, she was slurred as a ‘DEI hire’ (which is thrown at many of those who are not straight white men).

Of course, we in Europe have been rightly focused on the historic breach in the longstanding Western alliance and its consequences.

But as lawyers we should focus on the continuing breakdown of the rule of law in the US. Not enough is written about it. It is providing us with a terrible lesson, and there seems little we can do but gape in horror.

Jonathan Goldsmith is Law Society Council member for EU & International, chair of the Law Society’s Policy & Regulatory Affairs Committee and a member of its board. All views expressed are personal and are not made in his capacity as a Law Society Council member, nor on behalf of the Law Society