Trump's Attack on Lawyers and Law Firms Takes a Page Out of the Southern 1950s Playbook
By Sherrilyn Ifill | Originally published on Substack
Lawyers were still recovering from the shock of the capitulation of Paul, Weiss,[i] one of the nation’s most well-respected law firms, to demands made by the Trump Administration after the President issued an Executive Order targeting the work of the firm.[ii] A similar ordered issued against law firm Perkins Coie was met with a strong offense. Perkins Coie sued the Trump Administration and earned a temporary restraining order[iii] stopping the Administration from imposing the threats it had outlined in its order. The sudden and shocking capitulation of Paul Weiss, seemed mystifying. And ominous.
Less than 24 hours later, the Trump Administration issued yet another EO targeting lawyers. This one was the worst yet. The Order, entitled “Preventing Abuses of the Legal System and the Federal Court”[iv] instructs Attorney General Pam Bondi to investigate lawyers that have filed suit against him or his Administration or agencies over the past 8 years to determine whether they have engaged in fraud or pursued baseless partisan attacks. In a litany of projection, the EO purports to remind attorneys of the requirements that lawyers ensure that their statements have a “reasonably based” on “evidentiary support,” and reminds attorneys of the “solemn obligation…to respect the rule of law and uphold our Nation’s legal system with integrity.” The President encourages the Attorney General to refer attorneys for disciplinary action to the bar, pursue sanctions under Rule 11 of the Rules of Civil Procedure, and to conduct a review of cases filed against the federal government over the past 8 years – especially those involving “homeland security, public safety or election integrity.”
It is not an exaggeration to say that if advanced, such actions by the Department of Justice would potentially chill critical portions of the legal ecosystem whose core work is challenging government overreach (administrative law practices, civil rights and civil liberties lawyers, election lawyers, immigration lawyers), and the profession more broadly. And in specifically calling out Democratic election lawyer Marc Elias by name, and singling out immigration attorneys, Trump continues his unsavory targeting of members of the bar who have bested his Administration and Republican officials in court in important cases. The EO is an ugly, aggressive antidemocratic attack designed to cow lawyers and derail the work that has constituted the most effective check on Trump’s excesses: litigation.
In both his first term and since January, Trump’s most expansive plans have been trimmed, slowed and in some instances stopped by litigation.[v] Just during the past 3 months, lawyers challenging DOGE cuts and closures, access to Treasury records, restrictions on birthright citizenship, closing the USAID, suspending refugee admissions, firing a member of the National Labor Relations Board and the Merit Systems Protection Board, shutting down the CFPB, mass termination of federal employees, and the freeze by OMB on non-profit grants have successfully obtained temporary restraining orders, preliminary injunctions or have prevailed outright. It’s hard to sustain “shock and awe” when federal courts order thousands of fired workers back to office, and dress down seemingly unprepared or mendacious DOJ lawyers who make extravagant and implausible claims to executive power in hearings.
From the Administration’s perspective, something had to be done. This EO is it.
The EO targeting lawyers and organizations that sue the federal government caught many by surprise. A frontal attack on the legal profession and lawyers was not among the emphasized areas of attack identified by scholars of authoritarian regimes, as high on the list of threats we should expect to encounter. It should have been. But experts who have dominated analysis of authoritarians have used Europe almost exclusively as their guide.
Many have forgotten that we have a homegrown experience of authoritarian political leaders that may prove more instructive. Looking to the history of how those leaders confronted resistance might have prepared us better for Trump’s latest tactics.
The use of litigation to challenge and disarm the aggressive actions of authoritarians is a uniquely American phenomenon that was developed and perfected by civil rights lawyers in the south. Challenging southern Governors who literally stood in the schoolhouse door and refused to obey court orders, or school officials who closed schools rather than integrate, or who misused funding to deny services to Black communities, or challenging the actions of city officials for engaging in discriminatory housing, zoning or transportation decisions, created the field of civil rights lawyering as a robust and effective tool in disarming the seemingly unchecked power of racist southern officials.
Although the Civil Rights Movement is remembered best for its dramatic, powerful and effective direct actions – boycotts, sit-ins and marches, equally important was the litigation that often cleared the paths for those direct actions to take place, and put recalcitrant racist Governors and local officials back on their heels with court orders that constrained their actions.
We remember the fire hoses turned on protesters, and the beating of marchers, but we may have forgotten how aggressively those authoritarians came after the legal arm of the Movement, which had begun to enjoy stunning success in the federal courts.
The state of Alabama accused the NAACP and the NAACP Legal Defense Fund (LDF) of engaging in a variety of illegal practices under state law, accusing the organization of paying clients, of organizing the Montgomery bus boycott, and of failing to register as an foreign corporation (the LDF is headquartered in New York). During the pendency of the case in which the state of Alabama sought the NAACP’s membership list, Alabama successfully barred the organization from operating in the state from 1958-1964. Similar charges were filed by the Texas Attorney General in 1956, who personally litigated the state’s case against LDF. The state of Virginia likewise accused the NAACP Legal Defense Fund of violating a state statute’s governing solicitation of clients. LDF prevailed in that action finally in the landmark decision NAACP v. Button in 1963. Jack Greenberg, who succeeded Thurgood Marshall as LDF’s second Director-Counsel documents this history of multi-state attacks against LDF’s work in southern states in his seminal book Crusaders in the Courts.[vi] Although the LDF successfully navigated this period, in each instance the organization was kept from operating in those states from a period of several months to years in some instances, [vii] and was compelled to expend considerable lawyer time defending the organization at the expense of its core civil rights litigation. Thurgood Marshall referred to this time as a “crisis” for the organization. Because LDF manage to continue to work so consequentially during this period, few remember that it did so despite immense pressure from state governments that sought to challenge its very existence.
And we must never forget that local civil rights lawyers themselves were targeted during this period as well. Some were subjected to (unsuccessful) disbarment actions. Others, like Lou Redding who litigated the Delaware Brown case, were (unsuccessfully) targeted by the IRS. There were also violent attacks on local lawyers. The home of Birmingham attorney Arthur Shores was bombed twice in 1963 in retaliation for his participation in school desegregation litigation with the Legal Defense Fund.[viii] And attorney C.B. King was brutally clubbed by a southern sheriff in Albany, Georgia in 1962 when he arrived at a local jail to see his client who had been arrested for protesting.[ix]
The Civil Rights Movement-era attacks on lawyers and legal organizations comprise an important chapter in the American authoritarian playbook. Trump’s attack on lawyers and organizations takes a page from that book.
All of this serves as a reminder that we should be careful to respect the lessons we can learn from our own home-grown experience with fighting authoritarian state regimes, even as we learn from the fights against authoritarian national regimes in Europe.
And we should look to that playbook of attacks on civil rights era resistance to anticipate what may come next. That means preparing for personal attacks on the character and integrity of “resistance leaders” and infiltration of resistance organizations– especially given the new leadership of the FBI. All of these tactics was deployed to weaken civil rights organizations and leaders. And there really is nothing new under the sun.
Read the full article here: Trump’s Attack on Lawyers and Law.
