Trump v. ABA, streaming now

This is the next instalment in the Trump administration v. the American Bar Association (ABA).

At the end of the last episode, the ABA issued a strongly worded statement defending the rule of law in the opening days of the second Trump presidency.

In many democratic countries, nothing further would happen. The bar is expected to stand up for the rule of law. But this is a new America.

We should care because the ABA is a good friend to the Law Society, and we might need its support in the future. But, more importantly, its fate is a guide to what might happen to other bars should a populist government come to power.

Shortly after the ABA statement, the newly-appointed chairman of the Federal Trade Commission (FTC), Andrew N. Ferguson, sent a supposedly internal memo to FTC staff - a memo so internal that it is posted on the FTC website. (The FTC is our equivalent of the Competition and Markets Authority.)

Over more than two closely typed pages, the FTC chairman first does some prohibiting:

• FTC political appointees are not to hold leadership positions in the ABA, participate in or attend ABA events, or renew any existing ABA memberships; and

• the FTC is not to use funds to facilitate any employee’s membership in the ABA or an employee’s participation in, or attendance at, an ABA event.

Then we come to the why. Below is a summary, in mostly his own words:

• the ABA’s recent statement about the threats to the rule of law under Trump (‘a breathless screed’) was not a sober assessment of the law, but a collection of Democrat political talking points with the ABA’s logo fixed to the top;

• the ABA’s statement, which mentioned its recent law suit with others to reverse the cessation of USAID and state department funding, failed to disclose its own massive financial interest in USAID (it receives many millions of dollars annually from the US government for good works in the field of justice abroad), which was deceptive and unethical, ‘particularly galling given that the ABA claims it was founded to promote ethical conduct among America’s lawyers’;

• the ABA has for decades advocated on behalf of partisan Democratic causes, such as its biased ratings for Republican judicial nominees (the ABA has for a long time evaluated the professional qualifications of certain senior judges), its imposition of unlawful DEI requirements on American law schools as a requirement of accreditation (the ABA accredits law schools), and its ‘consistently leftist amicus advocacy on nearly every major social issue, including affirmative action, transgender ideology, capital punishment, and abortion’;

• the ABA is an ‘insistent and outspoken political organization’ which ‘advances radical left-wing causes and promotes the business interests of Big Tech’ (a surprising addition given the Trump administration’s close relationship with Big Tech).

The letter ends with the mandatory salute to the leader, as the chairman says he will be focusing on what is important, including ‘helping President Trump usher in America’s Golden Age’.

The ABA is now facing mounting challenges.

The financial resources it receives from USAID and the state department – around a third of its overall budget, I believe – funds hundreds of staff in many programmes abroad (training judges and drafting laws in countries which need assistance, or helping shore up the rule of law in others). Forgetting the broken agreements to assist, and the staff suddenly unemployed, the ABA’s brand itself is damaged – with the ABA a symbol of the US, whose reputation itself is changing fast.

But there is another threat: as mentioned above, the ABA accredits law schools, a system unknown in the UK. Since 1952, it has been recognised by the US Department of Education as the national agency for the accreditation of programmes leading to the J.D. degree, meaning that approved law schools provide a legal education that meets a minimum set of standards. Every US jurisdiction has determined that graduates of ABA-approved law schools are eligible to sit for the bar exam in their respective jurisdiction.

There must be questions, in the light of the response from the FTC, as to whether this accreditation programme will continue to be allocated to the ABA, or given elsewhere.

For those of us abroad, it is not easy to decide how we should respond to domestic changes within the US. Each government should be able to re-order how it provides foreign aid or how it accredits law degrees. So far, non-participation by the FTC in the ABA is a very minor sanction (though representing a powerful future threat).

Bars should support each other if they face government action for speaking up in favour of the rule of law. This is part of the DNA of a bar. Therefore, if matters go further, we should be ready to support the ABA in its stand.

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