David, I agree with you on this 100%. And Edward Bennett Williams, the greatest trial lawyer ever, would be proud of his firm today for taking this on. Everyone who reads this blog should read what Williams & Connelly filed; it’s a clarion call for anyone who cares about keeping politics out of our legal system.
If BigLaw firms aren't willing to help Williams & Connolly, then my guess is that there are a lot of legal ethics professors who'd be happy to help. I sure would. Those of us who are full professors have nothing to lose by supporting Williams & Connolly in its efforts to fight back against such an appalling Executive Order.
Professor Rapoport, do you know of any law professor who spoke out against the federal judges who played a very prominent role in getting or keeping this ball rolling? In May 2024, thirteen federal judges actually publicized in a letter (they declared) that were retaliating and would retaliate against students and faculty (and they would discriminate against future students) of at least one university because of their political viewpoint (or even merely for exercising their freedom to associate with students and faculty of Columbia).
The judges literally used the word "viewpoint" and they expressly attacked a religious and political viewpoint to pretend to justify their blatantly unconstitutional discrimination and retaliation. I know of two law professors (Josh Blackman and Ilya Shapiro) who spoke out to offer full-throated support for the judges' blatantly unconstitutional viewpoint discrimination (but they both refrained from even attempting to offer any rational justification based on the language of our Constitution or any controlling SCOTUS precedent).
Here's where I wish I were better at Con Law: I don't think that the judges were saying that the students didn't have a -right- to say what they did. I think that the judges were reacting to what the students said, and that's when we have to consider your point that the judges, as governmental entities, were engaging in viewpoint discrimination. So there's an issue of balancing a judge's right to choose a clerk that will fit the chamber's dynamics vs. a governmental entity's prohibition against viewpoint discrimination. I don't know where one draws the line (maybe David does--he's better at this than I am). And it's possible that the Exec Order here will be found to be constitutional--or that, if there's due process first, then THAT order will be found to be constitutional. That doesn't make it less appalling.
Consider the material facts. An undisciplined gang of federal judges publicly pretended that something in our Constitution gave them the power to punish (regulate) political and religious "viewpoints" (specifically, in part, "anti-semitism") at "Columbia University." See https://freebeacon.com/wp-content/uploads/2024/05/letter.pdf. Their express objective was to regulate political and religious "Viewpoint(s)" on "the faculty and across the administration—including the admissions office."
The judges directly violated our freedom of expression by discriminating based on viewpoint of expression (specifically, religious and political viewpoints). Then, they violated our freedom of association by declaring their extrajudicial punishment of students who merely associate with Columbia students or faculty: "we will not hire anyone who joins the Columbia University community—whether as undergraduates or law students— beginning with the entering class of 2024." (I suspect Trump and DOJ attorneys followed this example in attacking attorneys and clients for exercising their freedom of association to associate with Perkins Coie.)
The federal judges' blatantly unconstitutional extrajudicial punishment went even further: "Columbia" is "disqualified" (by a gang of federal judges in a mere letter) "from educating the future leaders of our country." Nothing in our Constitution authorized judges to impose any punishment on any "person" (and the Fifth Amendment emphatically precluded depriving any person of any liberty) except with all "due process of law."
Courts (and even more so mere individual judges) “may not prohibit” constitutionally-protected “modes of expression and association” even by actual attorneys and even by invoking the general “power to regulate the legal profession.” NAACP v. Button, 371 U.S. 415, 428-429 (1963). “[I]t is no answer” that “the purpose of” any “regulations” (court rules or rulings or mere letters signed by judges) “was merely to insure high professional standards.” Id. at 438-439. First Amendment “liberties,” including “speech, press, or association” are “indispensable.” Id. at 439. Courts “may not, [even] under the guise of prohibiting professional misconduct [by actual attorneys], ignore” (knowingly violate) “constitutional rights” (as these judges did). Id.
These judges expressly targeted what they vaguely characterized as "anti-semitism." For extremely valid and vital reasons, our Constitution (Article VI) emphasizes that federal employment can be denied based on the refusal or failure to express only one viewpoint: acknowledging that the duty of every public servant is to "support this Constitution," and it further emphasizes that federal employment cannot be impeded in any way for any pretext based (directly or indirectly) on any sort of religious test ("no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States").
Many people decry the use of history by SCOTUS justices in Bruen, but they're wrong for two crucial reasons. First, in Bruen (and in Heller) SCOTUS justices searched history to find evidence of a right. That's clearly right. Doing the opposite (as they did in Dobbs) is clearly wrong. The mere fact that people in power historically or even habitually violated our Constitution (e.g., Amendments XIV and XV) is not proof that their conduct was constitutional or proof that the rights being violated weren't really rights. See, e.g., Plessy v. Ferguson and everything that led to or flowed from it. Or see, e.g., Amendment XIX and everything that led to it. Amendment XIX was necessary only because state officials (and the majority of people with any political power in states) blatantly violated Amendment XIV by discriminating on account of sex.
Second, and more to your point, SCOTUS in Bruen (and in Heller) answered your question about balancing. Both Bruen and Heller emphasized crucial aspects of our Constitution that too many judges cover up or ignore.
When an “Amendment’s plain text covers” conduct, “the Constitution presumptively protects” it. So any public servant (including any judge) who would restrict or punish exercises of the freedom of expression or freedom of association must “justify” any such “regulation.” Each such public servant “must demonstrate” they are serving the public with restrictions that are “consistent with this Nation’s historical tradition” of protecting expression, association and assembly. Each “must affirmatively prove that” the restrictions on exercises of the freedom of expression or freedom of association are within this Nation’s long and strong “historical tradition” of protecting expression and association within “the outer bounds” of such “right[s].”
The People in the late 1780's and the 1790’s “widely understood” that the First Amendment (merely) “codified” multiple “pre-existing right[s],” that clearly were not “granted by the Constitution” or “in any manner dependent upon” the Constitution for their “existence.” “Constitutional rights are enshrined with the scope they were understood” (by the people) “to have when the people adopted them, whether or not future legislatures” or “judges think that scope too broad.”
As SCOTUS reiterated and emphasized in Bruen, “Constitutional rights are enshrined with the scope they were understood” (by the people) “to have when the people adopted them.” The First Amendment “is the [mere] product of” a long history of “an interest balancing by the people,” themselves, and it clearly “elevates above all other interests the right of law-abiding, responsible citizens” to exercise their freedom of expression and freedom of association (and rights to assemble and petition) “for self-defense” against abusive officials. “It is this balance—struck by the traditions of the American people—that demands” the “unqualified deference” of all public servants.
I can't think of any rational defense of Trump's Executive Order. As David noted, the courts give a lot of leeway to the President to decide what constitutes a national security concern, but there has to be some basis.
To those who think this is just Team Red getting one back on Team Blue, I'll point out that, on this as well as many other things, Team Trump is needlessly crude, inviting resistance and over-ruling. I don't know whether Team Trump really expects to win on the merits, or whether they will be satisfied with a public loss in the courts - I really can't tell whether they're crudely incompetent or going for theatrical losses in "the good fight". Just by trying this type of maneuver, they're descending farther into the needless politicization of everything. Which is not good.
There is no "tit for tat" or "whatabout" in comparing private law firms' actions toward their own partner, Paul Clement, based on the nature of some of his pro bono clients, with the *federal government's* behavior toward a private law firm based on its representation of clients. The latter violates the First Amendment. The former may or may not violate good business practices or professional standards, but it is not and cannot be unconstitutional, because it is not government action.
Obviously, I agree with you. For the benefit of those who are unwilling to accept your point, the following might help them see the light.
"We the People" did "ordain and establish" our "Constitution" and our "Union" to "establish Justice" and "secure the Blessings of Liberty to ourselves and our Posterity." Those were the first words of Americans as one people of one nation. Those were the first words of America as a nation. Those words declared the sovereignty of the people over all public servants (state, as well as federal).
Section 1 of Articles I, II and III emphasized the people merely "vested" certain limited "powers" in our public servants in the federal government. The Tenth Amendment re-emphasized that only certain limited "powers" were "delegated to the United States by the Constitution."
Article I stated that we vested in Congress the power to "make all Laws" that were "necessary and proper for carrying into Execution" absolutely "all" the "Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." So very many people demanded amendments that clearly established that certain exercises of federal power could not possibly be "necessary" or "proper," no matter what specious argument might be presented to the contrary. Many of the people demanding amendments regarding a bill of rights were known as Anti-Federalists, including George Mason who prepared Virginia's Declaration of Rights in 1776 and Elbridge Gerry, both of whom helped draft the Constitution, but refused to sign it because it lacked a bill of rights. Some were Federalists, including Thomas Jefferson.
The point of the First Amendment (emphasizing what Congress had no power to do) was to expressly emphasize that nobody in federal government was delegated any power to retaliate or discriminate (in any manner) against anyone for exercising any right or freedom in the First Amendment. As SCOTUS and James Madison repeatedly emphasized, the First Amendment secures our freedom to think, express our thoughts and associate and our right to assemble and petition (freedom of expression and freedom of association), especially for religious or political purposes. Nobody in federal government was delegated any power to retaliate or discriminate against the current partners, employees or clients of a law firm merely because they chose to associate with each other and such firm.
Article II extremely strongly emphasized that We the People "vested in a President" ONLY such "Power" as was necessary and proper to "preserve, protect and defend" our "Constitution" to "the best of" the president's "Ability," including by "tak[ing] Care that" all "Laws be faithfully executed." Article VI powerfully emphasized that our Constitution is first among the laws that are "the supreme Law of the Land."
Nothing in our Constitution vested any power in any federal employee to knowingly violate our Constitution in any way. Moreover, nothing in our Constitution vested any power in any federal employee to even inadvertently violate our rights and freedoms secured by the First Amendment.
The EO is also, like so much Trump does, short-sighted for conservatives and Republicans. There are, as your rendition of l'affaire Clement, demonstrates, far fewer conservative firms or even conservative friendly firms than there are Republican ones. This is particularly true for social conservative causes. It would be supremely easy by this method for a Democratic President to destroy the entire conservative bar through this method.
Are you saying the leftists have not tried it? If not for Trump putting few originalists or close to originalist on SCOTUS, we would be no different than Romania. The elitism is oozing from these comments. Don't worry about conservatives. The way Dems are acting up, we may not see a Dem president for several decades (God willing).
Somebody asked you previously whether you are an attorney. Are you? Are you any kind of public servant? Our Constitution requires all legislators and "all executive and judicial Officers, both of the United States and of [all] States" (including all attorneys admitted to any court) to swear or affirm an "Oath" acknowledging that they are "bound" to "support this Constitution." Did you ever swear an oath to support our Constitution?
The EO is not defensible by good faith arguments. That said, my prediction is that there will be comments supporting Trump’s EO, and those will rely on false equivalency, what-aboutism, and bad faith arguments.
I’m curious what productive discussion this EO and substack space could possibly engender, even if people shared a common reality of fact / were in a true marketplace of ideas. A place for people to reaffirm our shared values in the legal system and in legal representation? That’s all I can think of.
I agree. The principles here are simple and straightforward and they've been articulated by all the current SCOTUS justices with even the most "conservative" credentials.
In 2023 in 303 Creative LLC v. Elenis, SCOTUS re-emphasized (by italicizing both instances of "some") that, “A commitment to speech for only some messages and some persons is no commitment at all.”
“The First Amendment” secures for “all persons” the right to be “free to think and speak as they wish,” so “all persons are free to think and speak as they wish.” “[T]he First Amendment extends to all persons,” including those who communicate for “profit.” “All manner of speech” (including “pictures, films, paintings, drawings, and engravings,” “oral utterance and the printed word”) is under “the First Amendment’s protections.”
The dissenters in Elenis (quoting controlling precedent in Roberts v. United States Jaycees) focused on the principle that no public servant may “aim at the suppression of speech” on “the basis of viewpoint.” Public servants were given no power to “appl[y] the law” for “the purpose of hampering” attorneys’ “ability to express” their or their client’s “views” regarding relevant issues. Citing controlling precedent in Hishon v. King & Spalding, the Elenis dissenters emphasized that attorneys' “services (legal advocacy) were expressive; indeed, they consisted of speech.” Judges have no power to “inhibi[t]” attorneys’ “ability to advocate” their or their clients’ “ideas and beliefs.”
David says that "if the shoe was on the other foot" argument is what-aboutism but I call BS. It's a very convenient way to avoid an honest debate about abuses of the progressive legal left that has been going on for years. Legal profession is already knee deep in politics. Perhaps if you raised your voices years ago, it would sound sincere now. You only complain because finally the abusers are finally getting a taste of their own medicine.
I don't know if you intend to include me in the "you" here, but I've been writing about "abuses of the progressive legal left" when it comes to viewpoint discrimination and speech issues for years. If you look at the top 20 stories of this newsletter, 7 would fall under that category.
Those stories are mainly about problems at law schools. So they don't even include my many posts about goings-on in the law firm world:
And I've talked about these issues on my podcast as well, with guests like Paul Clement and Ilya Shapiro—who have experienced cancel culture in the legal profession firsthand.
Are the actual abusers getting a taste of their own medicine? Do you think anyone who did anything to Trump many years ago even still is employed by this law firm?
Here, Trump is openly trying to destroy a commercial enterprise (and threatening to punish or destroy clients whom no one even argues were guilty of any misconduct), and in the process Trump will very likely wreck the financial viability of many individuals and families who in no way can fairly be punished for anybody else's misconduct. Is that really the kind of arbitrariness you want to encourage in our public servants? Do you think such dangerous and brazen usurpations of power will stop with Trump and his lackeys?
What is "honest" about advocating violations of our Constitution? Think about the real consequences of what you are advocating. You are advocating a return to the blatantly unconstitutional arbitrary viciousness of people in power injuring people because of their mere speech, i.e., so-called seditious libel. You are advocating pretending that something in our Constitution gave the president the power to destroy any commercial enterprise that ever did anything criminal or even anything to offend any person in power. That's directly contrary to the way our criminal laws and our Constitution were written and work.
Congress (typically with the president, but never the president alone) has the power and duty to make federal criminal law. Federal statutes identify conduct that is criminal and they prescribe the punishment that can be imposed on any person or entity for committing any crime. But before punishment can be imposed, our public servants must afford the accused all due process of law. Due process of law includes a public trial in which guilt is decided by a jury of our peers who represent us. It includes a trial in which evidence is produced publicly in compliance with federal law. It includes the government bearing its burden of proof (beyond a reasonable doubt) that the person being punished committed the crime.
You are advocating an anti-constitutional system that is exactly what the Founders and Framers worked hard to prevent, including with structural precautions and restrictions such as federalism and separation of powers. See, e.g., The Federalist No. 47:
"The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many" is "the very definition of tyranny."
And then quoting Montesquieu's The Spirit of the Laws:
"There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates," or, "if the power of judging be not separated from the legislative and executive powers."
"When the legislative and executive powers are united in the same person or body," says [Montesquieu], "there can be no liberty, because [ ] THE SAME [person or body of persons can actually or essentially] ENACT tyrannical laws to EXECUTE them in a tyrannical manner. " "Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for THE JUDGE would then be THE LEGISLATOR. Were it joined to the executive power, THE JUDGE might behave with all the violence of AN OPPRESSOR. "
You are advocating a system in which one person (the president) arbitrarily decides what conduct can be punished, arbitrarily decides who committed such conduct, and then arbitrarily imposes whatever punishment he wants or thinks he can. Why would you want to advocate for that? If we don't enforce our Constitution regarding the usurpations of power at issue here, where should we begin enforcing our Constitution?
How can fidelity to the plain meaning of the plain text of the Constitution not "sound sincere now"? Do you really believe that what you simply don't know about how other people "raised" their "voices years ago" can somehow justify violating the most clear and crucial parts of our Constitution now? Even if someone didn't speak out years ago, how can that be relevant to any discussion today of whether any conduct of any public servant today violates our Constitution? Why would merely having "raised" our "voices years ago" regarding other issues matter more to you now than the actual text and meaning of our Constitution that is relevant to the issue that we are discussing now?
Your argument is merely an emotional objection to the plain text of our Constitution. Our Constitution clearly provides for amendments (using multiple possible processes) precisely because people can (and historically did) start to speak out about things that they didn't speak out about previously. Take the entire Bill of Rights (Amendments I through X) and Amendments XVIII, XIX, XXIV and XXVI as examples.
Moreover, what Trump is doing now is not difficult to understand. He repeatedly makes the unconstitutionality of his conduct very clear. He seems to be proud of it. He's obviously well aware that he cannot be voted out of office (or re-elected), and he almost certainly won't be impeached again, much less convicted and removed from office. And six SCOTUS justices said Trump cannot be prosecuted (by the federal government) for his criminal abuses and usurpations of powers. So does it really surprise you that Trump is going so far overboard that people are speaking out now when they didn't years ago?
Furthermore, thinking of this as merely left v. right is far too simplistic. As many Republicans (and conservatives) are well aware, Trump is neither a real Republican nor a real conservative. Trump is the epitome of a RINO. Trump is the autonomous leader of a massive MAGA mob. As far as I (and many Republicans can ascertain), Trump couldn't care less about the Republican party (or whatever might happen to it or whatever might be left of it after Trump is done with it). Trump also obviously couldn't care less about what anyone thinks of the Office of the Presidency or whatever might happen to it or whatever might be left of it after Trump is done with it.
In addition, not everyone is motivated primarily by partisan purposes. I'm definitely not speaking out now for any partisan purpose. I'm not even speaking out now primarily because of what Trump has done. I'm speaking out now (and I have been for years) because of what judges have done and are doing. To give a relevant example, the six SCOTUS justices who said Trump has immunity from criminal prosecution simply lied about our Constitution. There's no way they actually believed the people who wrote or ratified our Constitution actually delegated such extreme power to any president. (Most of them were terrified of potential abuses of executive power. They had just fought a devastating war to get out from under a powerful executive. Look at all the times they raged against a "standing army." Especially in the South, the people in power were terrified of all federal power because they feared it would be used to abolish slavery and the importation of enslaved people.) So I, personally, appreciate what Trump is doing. He's making fools of those justices and their so-called judgment. Trump is promptly proving (so we don't have to wait for a later president to prove) that pretending that presidents cannot be prosecuted for criminal abuses or usurpations of a power is contrary to our Constitution and common sense. It is very dangerous.
"Cancelling law firms seems to me a prickly and defensive response to political enemies having legal representation. I get that the lawyers were closely identified with their clients (the Democratic National Committee and special counsel Jack Smith, who brought federal prosecutions against President Trump). But President Trump’s lawyers are probably closely identified with him. Should the next President cancel them?"
As I wrote last weekend in Judicial Notice:
"If we want to preserve the adversarial process that lies at the heart of our justice system, we can’t go around punishing lawyers for representing controversial clients or causes. I fear that Donald Trump might have started a vicious cycle. Will the next Democratic administration target Jones Day, Consovoy McCarthy, or Cooper & Kirk? I hope not. But with yet another norm broken by Trump, I can’t rule it out."
It is far more than merely "prickly and defensive." It is viciously, maliciously and knowingly unconstitutional. It is criminal (see, for example, my posts here about 18 U.S.C. 241 and 242).
One thing to keep in mind about Trump and his lawyers (lawyers who previously represented Trump personally, but who now are employed by the U.S. Department of Justice) is that they worked on defending Trump's freedom of speech. They researched the controlling SCOTUS precedent, and they included it in court filings.
They KNEW and KNOW that the conduct now of Trump and some of his sycophants is violating our rights secured by our Constitution and federal law. Their knowledge makes their conduct criminal.
There's an entirely reasonable, defensible (i.e., "objective") narrative that this is not starting something, it's continuing something. Perhaps expanding it. Again, I'm not placing blame about where it started. Strikes me that that's a bottomless hole, and better left to scholars.
Scholars have a role to play. They can educate people in power about the rights they're violating. Then, prosecutors should step in and prosecute purported public servants for violating their oaths (committing perjury), violating our Constitution and violating the privileges and immunities of particular persons. That is how Congress and at least one president (who typically signs laws) (as elected representatives of the people) determined these violations should be prevented and stopped.
Sure. Not dismissing that pursuit or scholars. And I'm all for the realpolitik of bringing force to bear to protect principles, or further political or social goals, or whatever. What I think I'm trying to express is a certain fatigue around outrage about "norms being violated." Do fight, and fight on.
Forget about mere outrage. Forget about mere partisanship. Please bear in mind that this is a discussion in the legal community about our Constitution and whether it actually will fulfill its primary purpose (powerfully emphasized with its first words (our first words as one people of one nation)).
"We the People" did "ordain and establish this Constitution" and our "Union" to continuously work toward "a more perfect Union, establish Justice," and "secure the Blessings of Liberty to ourselves and our Posterity."
I understand. We're operating within different frameworks, or perhaps from different perceptions of what's already happened. The Constitution is great. I love it, too. There is reason to believe that relying on it in this way, treating it as a failsafe or backstop, is possibly missing something. Among various political corners, there is discourse about the water you're swimming in, or, alternatively, the water getting hotter gradually. At some point, we wake up.
What Trump and his minions fail to understand is that one day a Democratic or some other non-Republican will occupy the Oval Office. And the new occupant will use all of the presidential powers created or extended by Trump to seek his or her own revenge on the Republicans and their law firms. And with regard to Perkins Coie, the mere entry of the Executive Order damaged the firm perhaps beyond repair. During the next four years, it is obvious that to do business with what is left of the federal government or to escape Trump's wrath corporate America will have to do a Bezos, kiss the a** of the Orange Baby and avoid doing business with any law firm or other business that has not done likewise.
Exactly. I totally agree with you. As I wrote in my post from the other day about Ed Martin's letter to Georgetown Law, "President Donald Trump won’t be in office forever, but the norms he either establishes or eviscerates will likely endure long after he has left the White House. That’s why we must all stand up for the First Amendment, even—and especially—when it protects speech we might not like."
But I don't know how we break the cycle. Nobody wants to engage in "unilateral disarmament" (as reflected in some of the comments on this post that defend the Order).
Where do we locate the egg, or the chicken, in this cycle of "one day the other side..." That line has been trotted out repeatedly over the last ten years, through one power center to another. These are not operating principles.
Why bother? What could it possibly matter where or how blatant and deliberate violations of our Constitution started? Far better (and far more faithful to our Constitution) for every public servant and We the People to focus on ending such violations.
Definitely. I commend the principle. Is it possible that "ending such violations" is in the eye of the beholder? One man's violation is another man's justice?
To answer that, please consider the plain text of the federal criminal statutes that I quoted (18 U.S.C. 241 and 242) and our Constitution and please consider the text of multiple SCOTUS opinions emphasizing and elaborating on the rights and freedoms secured by the First Amendment. These issues and perspectives aren't merely subjective. They're constitutional.
I beg to differ. It's a nice device to show people that they're being short-sighted. But it shouldn't be true, and it almost certainly won't be true. The same people advocating violations of our First Amendment rights and freedoms know very well how to defend those same rights and freedoms. They've been doing it for decades. Ilya Shapiro provides an excellent example. Federal officials KNOW they're violating our Constitution now. So it is far better to point out that when they're out of power, they can (and should be) prosecuted for their criminal misconduct, e.g., under 18 U.S.C. 241 or 242, which I quoted in my other comments here.
I would not hold my breath waiting on Trump's Justice Department to prosecute Trump or any of his appointees under 18 U.S.C. §241 and 18 U.S.C. §242 or any other provision of the US Code. And we all saw how well prosecuting and suing Trump in state and federal court for criminal violations and civil damages turned out. The only "courthouse winners" were E Jean Carroll and the State of New York. And both of those cases are on appeal. The big winner, of course, was Trump who was reelected although a convicted felon. There is no criminal or civil remedy when a constitutional system which relies on the "good faith" of the participants and on common beliefs like the rule of law and the equality of all persons is taken over by jerks that operate only on "bad faith" and have rejected all concepts and beliefs undergirding the constitutional framework.
There's no good reason to acquiesce in the obviously anti-constitutional "judgment" of a handful of judges in Trump v. United States (in which six judges essentially admitted in writing that they knowingly violated our Constitution).
The Tenth Amendment perfectly clearly and unambiguously re-emphasized the president could have only the limited "Powers" that were "delegated" to the president "by the Constitution."
In Article II of our Constitution, We the People explicitly "vested in a President" ONLY the power "to the best of" the president's "Ability" to "preserve, protect and defend" our "Constitution," including by "tak[ing] Care that the Laws be faithfully executed.'
It is impossible to believe that any of the foregoing (much less all of it) meant we delegated to the president the power to engage in abuses or usurpations of power that multiple Congresses and multiple presidents made criminal in federal statutes (to protect the people from abuses or usurpations of power in violation of our Constitution).
Any subsequent president should prosecute Trump and others in his administration who are committing criminal abuses of power. That way, SCOTUS justices can think again and think better about actually fulfilling their own oaths "to support and defend" our "Constitution" against "all enemies, foreign and domestic" and how to truly "bear true faith and allegiance to" our Constitution (as they and every federal employee (except the president) swore they would in compliance with 5 U.S.C. 3331).
Thanks for opening the comments, David. I genuinely appreciate the shock, from you and others, about the blatant misuse of executive power. I'm slightly older than middle-age, and, prior to 2020, have always been a center-Left type, and Dem voter.
Unfortunately, that all changed. The last five-ish years disabused many of us of our expectations about decency, fair-play, and commonly held boundaries. I'm not blaming any particular group. I don't feel partisan about it. I think what we've watched and are watching is the falling away of the idealistic norms of a previous governing ideology (call it Liberalism) as Realpolitik surges forward in a way not overtly seen in my lifetime.
As best as I can discern, and this is, of course, deeply subjective, the ship already sailed, and the horse already left the barn. For better or worse, and only better bc now we can all see what's "real," the bloodsport knife-fight of politics is happening right in front of our eyes.
Many here may have read N.S. Lyons. I recommend his stuff for one angle on the hinge point we're living through. Times are changing, folks. Abandon all hope, ye who enter here.
As a descriptive matter, you might be right—and I fear that you are.
But as a normative matter, what do you propose? Should we just stop criticizing things we view as wrong because we're all screwed in the end?
I've doled out plenty of criticism in these pages of what I see as abuses of power. Sometimes it's Trump abusing his control over the federal government. Sometimes it's left-leaning law professors and students abusing their control over academia to squelch dissenting voices.
But if "it's all power in the end," is there any point to calling out perceived injustice?
(Other than, I suppose, my needing to make a living by writing about SOMETHING....)
Lol. No, man. We do the best we can, and I'm all for speaking up and out about principles. Also not trying to black-pill, or do the Accelerationist thing. In my own way, I'm doing here exactly what you describe. Have you dipped into N.S. Lyons? Also recommend the various conversations about the rule of the managerial state (deep state theory, without the insanity), to swing to the side a bit and get a slightly different angle on things. One fundamental idea is that it's just mass society. (Globalism.) The bigger the group, the more complex (insanity-making) the system(s). Keep up the good work!
If we imagine a two-step process of 1) problem identification, and 2) solution implementation, I feel like we all get stuck in step 1, which is where we fall into the endlessly fractal games of finger-pointing and blame.
Dissident Dad, I appreciate your comment for skipping past step 1. Would love to hear some solutions for our society, but I fear some people’s “solution” is in fact the other side’s worst nightmare.
That said, just because that dynamic plays out on both sides doesn’t make those sides equal. A Christian Nationalist vision for the country is not morally equivalent to a xenophobic nationalist’s is not equivalent to a “woke” vision (which the Right frequently stokes fears of but never fully defines).
Heartily agree w "...dynamic plays out on both sides doesn't make those sides equal." That strikes me as a fundamental observation? (Vs. the Center idea, and/or the Pendulum Swings heuristic.) While I have my gut instincts about all of these questions, observations over the last half decade have left me with a best thesis that Local is about the best we can do. Starting with Family, obviously, but then direct, physical community. School. Literal neighbors. Small businesses. And I've seen this solution now from both "sides" (obvs more than two sides). Other than that, it's Reality playing out in front of us, a system that's deeply complex. It's interesting to watch the show. ;)
I agree with your "do the best we can" comment above, as well as this one.
When times are crazy, I think it's most helpful and productive to focus on what we do have the ability to influence—such as our families, schools, neighbors, and communities.
Do you think we might as well throw away our Constitution because some citizens have concluded it's more comfortable for them to think "the ship already sailed, and the horse already left the barn" (or as you said above, some people are feeling "fatigued")? People who think that way should crack a book about who and what sacrifices and suffering really made America great. Or maybe this Memorial Day, maybe they should go visit a national cemetery. Better yet, they should go toward sunset on a quiet day and feel the significance of "the bivouac of the dead" under their tiny white stone tents. While they're there, they can read (and maybe think about) the posted copy of President Lincoln's Gettysburg Address. An awesome number of Americans have made awful sacrifices (in many ways) for the rights, privileges and immunities that some people now cavalierly discard, disrespect or outright trample on.
No argument, man. Seriously, I'm all for it. The only qualifier I'd offer is that it isn't comfort. The last decade have held many long, dark nights of the soul, for all of us, and I suspect nothing less of the decade to come.
I wish I could agree. I really do. But it really is about mere comfort for too many. People who haven't fought for our freedoms, people who have not really bled for them (literally or figuratively), too often just don't have any real appreciation for the effort required to defend them. So it's dangerously easy for too many people to say or imply that the Constitution really just doesn't matter anymore.
David, thank you for again speaking up in defense of our common interests. You remind me of President Jefferson's first inaugural address 224 years ago in March 1801 declaring, "We are all Republicans, we are all Federalists."
In 1798, an overwhelmingly Federalist Congress and President John Adams united, in part to attack (and in part, to enhance protections for) our freedom of speech and press. They did so to secure a victory in the elections of 1800. Their actions cost them the elections of 1800. Federalist congressmen were swept out of office, and President Adams became the only one of the first five to be elected only once.
Jefferson began his inaugural address by emphasizing that with the election the people re-emphasized their right and power "to think freely and to speak and to write what they think" and this was "now decided [again] by the voice of the nation, announced according to the rules of the Constitution." Jefferson concluded by declaring that (under our system of self-government) our government is "the only one where every man, at the call of the law, would fly to the standard of the law, and would meet invasions of the public order as his own personal concern."
Very far from fair play, turn-about here is clearly criminal.
Any federal official “conspir[ing]" with anyone "to injure, oppress, threaten, or intimidate” "any person" (including attorneys and law firms) “in the free exercise or enjoyment of any right or privilege secured to” them “by the Constitution or laws of the United States, or because of” their “having so exercised” any such “right or privilege” commits a crime. 18 U.S.C. 241.
Any federal official acting “under color of any law” or “custom” to “willfully” deprive "any person" (including attorneys and law firms) “of any rights, privileges, or immunities secured or protected by” any provision of the “Constitution” or federal “laws” commits a crime. 18 U.S.C. 242. No action by or custom of any federal official is exempt. Not even invoking some unconstitutional or anti-constitutional historical "tradition" is a defense.
Do you think or care at all that you're advocating direct and blatant violations of our Constitution? Do you think or care at all that you're doing so for the purpose of allowing federal officials to usurp powers that were withheld from them (in Article II) and that the First Amendment expressly denied them for the purpose protecting us all?
If we allow whataboutism to entirely substitute for actual substantive thought about serious issues, our political discourse becomes as inane as the squabbling of second graders. Yes, all political parties are imperfect, but that underlying fact is not a reason to ignore the reality of what is actually happening now, as the executive directly attacks lawyers simply for doing their job as lawyers.
The primary point of having a written Constitution is that its delegations of power and its restrictions on abuses or usurpations of power necessarily continue to apply indefinitely. That really was the primary point of the Civil War. No public official, and no violent mob, can merely choose to tear up our Constitution or rip out the heart of its protections.
And yet they do. Many aspects of the Constitution are ignored, depending on where power is located, or who is wielding it. There's a sizable discourse about this available.
Perkins Coie naturally wants to frame this dispute as a First Amendment issue. But there is another way to frame it. When its former partner, Marc Elias, acted as a cutout for the DNC in commissioning the debunked Steele Dossier it wasn’t merely providing legal advice to a client. It was actively engaged with the DNC in an extra-legal effort to affect the outcome of an election and later to hinder the President during his first term. The firm was a participant in the scheme, not merely an advisor to a client. If Perkins Coie has repudiated the Steele Dossier commissioned by its then partner I haven’t heard of it. And before someone points out that law firms frequently contract with experts to produce reports that can be shielded from discovery by the attorney-client privilege it is obvious that it was intended that the contents of the Steele Dossier were to be given the widest possible dissemination. Perkins Coie crossed the line between advocacy and active participation in its client’s disgraceful scheme. They are reaping what they sowed.
You say lawyers were not "merely providing legal advice to a client," they were "actively engaged with the DNC in an extra-legal effort to affect the outcome of an election and later to hinder the President during his first term." "Perkins Coie crossed the line between advocacy and active participation in its client’s [ ] scheme." It sounds like you're implying someone committed a crime or violated rules of professional conduct. There's due process of law, including appropriate forums, for proving that kind of thing.
We cannot logically defend or acquiesce in the executive branch actions at issue here with such mere implications. For more than 200 years, our Constitution has emphasized the controlling principle: "No person" may be "deprived" by any federal official any "liberty" or any "property" until after being afforded all "due process of law." The actions of Trump and some DOJ attorneys is highly reminiscent of exactly the kind of abuses of power that resulted in the Declaration of Independence (it's actually in the Declaration) and then the Revolutionary War. Such actions are a big part of the reason that our Constitution has a Bill of Rights (including the First, Fourth, Fifth, Ninth and Tenth Amendments).
It's worthwhile reading about why the American people stood up and declared war on, and waged actual war against, their actual king, including the following in the Declaration of Independence:
"He has obstructed the Administration of Justice"
"He has [ ] sent hither Swarms of Officers to harass our People, and eat out their Substance."
"He has combined with others" to create "pretended Legislation" for purposes including the following: "cutting off our Trade," "depriving us in many Cases, of the Benefits of Trial by Jury," having people "tried for pretended Offences" and "taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Government."
"He has excited domestic insurrections amongst us"
I intentionally did not say that a crime was committed. What I did say was that what the firm (through its then partner) did in commissioning the Steele Dossier was not speech entitled to the protection of the First Amendment.
How did you reach that conclusion? How did the firm or its lawyers do anything more than exercise the freedom of expression and freedom of association expressly secured by the First Amendment? How did lawyers and clients joining a "scheme" (that you concede is not criminal) amount to anything more than exercising "the right of the people peaceably to assemble, and to petition the Government"? (I'm not arguing or implying that they didn't. I don't know. I don't recall the material facts there. I'm merely opposing your argument or implication that the conduct you described is, for some reason, not protected by the First Amendment.)
Are you sure? A majority of SCOTUS (repeatedly) said that channeling money for political purposes was protected expression. Do any material facts distinguish this situation from what SCOTUS said was protected?
My wife asks me at least once a day, "How do we stop this?" You can protest, call your representatives, and contribute to various causes. But when you deal with an opponent who recognizes no limits, does not care what the law says, and is fine with disobeying court orders, the only answer is to replace him. Assuming they are held, I see no relief until the 2026 mid-term elections. Meanwhile, all we can do is try to limit the damage.
David, I disagree with you about non-neutral programs intended to address DEI concerns. Shouldn't private companies be free to hire anybody that they choose? And for any purpose? I am being facetious here. Bigots still want to have their private clubs that discriminate against women and POC, defending this a right of free association. But, they also want their less-than-stellar offspring to find useful employment, trying to use the very laws that were intended to carve-out areas of employment, housing, etc. as safe havens from such discrimination.
Consider, if you will, the following thought experiment: As the leader of an established large law firm, you come to realize that your firm has explicitly discriminated against women and POC in hiring and promotion, for decades. Recognizing this as morally wrong, what do you do? Is it sufficient to just say "sorry" we won't do that in the future? Inquiring minds want to know!
Title VII of the Civil Rights Act of 1964 "makes it illegal to discriminate against a person on the basis of race, color, religion, sex, or national origin."
The Supreme Court is likely to issue a decision in Ames v. Ohio Department of Youth Services making clear that Title VII protects members of majority groups, like white people or straight people, to the same extent that it protects members of minority groups, like people of color or LGBTQ people.
Some circuit courts currently have different standards for members of majority groups versus members of minority groups. Based on the oral argument in Ames, it sounds like SCOTUS is about to reject having different standards.
You might not like that as a policy matter. You're free to lobby Congress to amend Title VII to give minorities greater protection than majorities. But the Supreme Court is probably about to clarify that under current law, discriminating against white people or straight people is just as illegal as discriminating against people of color or LGBTQ people.
Speaking for myself, a person of color and a member of the LGBTQ community, I'm fine with that.
There is also the oft-overlooked DEI on the right, especially for conservative Christians — some federal judges hire their 1L interns exclusively via the ADF’s Blackstone Fellowship program, which has a religious test for eligibility (must affirm certain Christian doctrines).
If that's true, it clearly violates fundamental tenets of our Constitution. Article VI pointedly emphasized that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." It also pointedly emphasized that our "Constitution" and federal "Laws" that are "made in Pursuance" of our Constitution and "Treaties" are "the supreme Law of the Land; and the Judges in every State shall be bound thereby." It further emphasized that all legislators and "all executive and judicial Officers, both of the United States and of" all "States" are "bound" to "support this Constitution" (including in the foregoing respects). Article III further emphasized that federal "judicial Power shall extend" (all federal power shall extend) no further than permitted "under this Constitution, the Laws of the United States, and Treaties."
"it’s harder for folks on the right to make ad hominem attacks against the conservative Wall Street Journal editorial board"
A quick review of Twitter would establish that, in fact, it's extremely easy for folks on the right to make such ad hominem attacks because they've already been primed to reject anything negative the WSJ says about Trump due to the WSJ's prior (correct) criticism of his tariff policies.
David, I agree with you on this 100%. And Edward Bennett Williams, the greatest trial lawyer ever, would be proud of his firm today for taking this on. Everyone who reads this blog should read what Williams & Connelly filed; it’s a clarion call for anyone who cares about keeping politics out of our legal system.
If BigLaw firms aren't willing to help Williams & Connolly, then my guess is that there are a lot of legal ethics professors who'd be happy to help. I sure would. Those of us who are full professors have nothing to lose by supporting Williams & Connolly in its efforts to fight back against such an appalling Executive Order.
Professor Rapoport, do you know of any law professor who spoke out against the federal judges who played a very prominent role in getting or keeping this ball rolling? In May 2024, thirteen federal judges actually publicized in a letter (they declared) that were retaliating and would retaliate against students and faculty (and they would discriminate against future students) of at least one university because of their political viewpoint (or even merely for exercising their freedom to associate with students and faculty of Columbia).
The judges literally used the word "viewpoint" and they expressly attacked a religious and political viewpoint to pretend to justify their blatantly unconstitutional discrimination and retaliation. I know of two law professors (Josh Blackman and Ilya Shapiro) who spoke out to offer full-throated support for the judges' blatantly unconstitutional viewpoint discrimination (but they both refrained from even attempting to offer any rational justification based on the language of our Constitution or any controlling SCOTUS precedent).
Here's where I wish I were better at Con Law: I don't think that the judges were saying that the students didn't have a -right- to say what they did. I think that the judges were reacting to what the students said, and that's when we have to consider your point that the judges, as governmental entities, were engaging in viewpoint discrimination. So there's an issue of balancing a judge's right to choose a clerk that will fit the chamber's dynamics vs. a governmental entity's prohibition against viewpoint discrimination. I don't know where one draws the line (maybe David does--he's better at this than I am). And it's possible that the Exec Order here will be found to be constitutional--or that, if there's due process first, then THAT order will be found to be constitutional. That doesn't make it less appalling.
Consider the material facts. An undisciplined gang of federal judges publicly pretended that something in our Constitution gave them the power to punish (regulate) political and religious "viewpoints" (specifically, in part, "anti-semitism") at "Columbia University." See https://freebeacon.com/wp-content/uploads/2024/05/letter.pdf. Their express objective was to regulate political and religious "Viewpoint(s)" on "the faculty and across the administration—including the admissions office."
The judges directly violated our freedom of expression by discriminating based on viewpoint of expression (specifically, religious and political viewpoints). Then, they violated our freedom of association by declaring their extrajudicial punishment of students who merely associate with Columbia students or faculty: "we will not hire anyone who joins the Columbia University community—whether as undergraduates or law students— beginning with the entering class of 2024." (I suspect Trump and DOJ attorneys followed this example in attacking attorneys and clients for exercising their freedom of association to associate with Perkins Coie.)
The federal judges' blatantly unconstitutional extrajudicial punishment went even further: "Columbia" is "disqualified" (by a gang of federal judges in a mere letter) "from educating the future leaders of our country." Nothing in our Constitution authorized judges to impose any punishment on any "person" (and the Fifth Amendment emphatically precluded depriving any person of any liberty) except with all "due process of law."
Courts (and even more so mere individual judges) “may not prohibit” constitutionally-protected “modes of expression and association” even by actual attorneys and even by invoking the general “power to regulate the legal profession.” NAACP v. Button, 371 U.S. 415, 428-429 (1963). “[I]t is no answer” that “the purpose of” any “regulations” (court rules or rulings or mere letters signed by judges) “was merely to insure high professional standards.” Id. at 438-439. First Amendment “liberties,” including “speech, press, or association” are “indispensable.” Id. at 439. Courts “may not, [even] under the guise of prohibiting professional misconduct [by actual attorneys], ignore” (knowingly violate) “constitutional rights” (as these judges did). Id.
These judges expressly targeted what they vaguely characterized as "anti-semitism." For extremely valid and vital reasons, our Constitution (Article VI) emphasizes that federal employment can be denied based on the refusal or failure to express only one viewpoint: acknowledging that the duty of every public servant is to "support this Constitution," and it further emphasizes that federal employment cannot be impeded in any way for any pretext based (directly or indirectly) on any sort of religious test ("no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States").
Many people decry the use of history by SCOTUS justices in Bruen, but they're wrong for two crucial reasons. First, in Bruen (and in Heller) SCOTUS justices searched history to find evidence of a right. That's clearly right. Doing the opposite (as they did in Dobbs) is clearly wrong. The mere fact that people in power historically or even habitually violated our Constitution (e.g., Amendments XIV and XV) is not proof that their conduct was constitutional or proof that the rights being violated weren't really rights. See, e.g., Plessy v. Ferguson and everything that led to or flowed from it. Or see, e.g., Amendment XIX and everything that led to it. Amendment XIX was necessary only because state officials (and the majority of people with any political power in states) blatantly violated Amendment XIV by discriminating on account of sex.
Second, and more to your point, SCOTUS in Bruen (and in Heller) answered your question about balancing. Both Bruen and Heller emphasized crucial aspects of our Constitution that too many judges cover up or ignore.
When an “Amendment’s plain text covers” conduct, “the Constitution presumptively protects” it. So any public servant (including any judge) who would restrict or punish exercises of the freedom of expression or freedom of association must “justify” any such “regulation.” Each such public servant “must demonstrate” they are serving the public with restrictions that are “consistent with this Nation’s historical tradition” of protecting expression, association and assembly. Each “must affirmatively prove that” the restrictions on exercises of the freedom of expression or freedom of association are within this Nation’s long and strong “historical tradition” of protecting expression and association within “the outer bounds” of such “right[s].”
The People in the late 1780's and the 1790’s “widely understood” that the First Amendment (merely) “codified” multiple “pre-existing right[s],” that clearly were not “granted by the Constitution” or “in any manner dependent upon” the Constitution for their “existence.” “Constitutional rights are enshrined with the scope they were understood” (by the people) “to have when the people adopted them, whether or not future legislatures” or “judges think that scope too broad.”
As SCOTUS reiterated and emphasized in Bruen, “Constitutional rights are enshrined with the scope they were understood” (by the people) “to have when the people adopted them.” The First Amendment “is the [mere] product of” a long history of “an interest balancing by the people,” themselves, and it clearly “elevates above all other interests the right of law-abiding, responsible citizens” to exercise their freedom of expression and freedom of association (and rights to assemble and petition) “for self-defense” against abusive officials. “It is this balance—struck by the traditions of the American people—that demands” the “unqualified deference” of all public servants.
What he did today is 100 times "chills down my spine." Not sure what to call it, outside of deranged ravings of a man with probable dementia.
I can't think of any rational defense of Trump's Executive Order. As David noted, the courts give a lot of leeway to the President to decide what constitutes a national security concern, but there has to be some basis.
To those who think this is just Team Red getting one back on Team Blue, I'll point out that, on this as well as many other things, Team Trump is needlessly crude, inviting resistance and over-ruling. I don't know whether Team Trump really expects to win on the merits, or whether they will be satisfied with a public loss in the courts - I really can't tell whether they're crudely incompetent or going for theatrical losses in "the good fight". Just by trying this type of maneuver, they're descending farther into the needless politicization of everything. Which is not good.
There is no "tit for tat" or "whatabout" in comparing private law firms' actions toward their own partner, Paul Clement, based on the nature of some of his pro bono clients, with the *federal government's* behavior toward a private law firm based on its representation of clients. The latter violates the First Amendment. The former may or may not violate good business practices or professional standards, but it is not and cannot be unconstitutional, because it is not government action.
Obviously, I agree with you. For the benefit of those who are unwilling to accept your point, the following might help them see the light.
"We the People" did "ordain and establish" our "Constitution" and our "Union" to "establish Justice" and "secure the Blessings of Liberty to ourselves and our Posterity." Those were the first words of Americans as one people of one nation. Those were the first words of America as a nation. Those words declared the sovereignty of the people over all public servants (state, as well as federal).
Section 1 of Articles I, II and III emphasized the people merely "vested" certain limited "powers" in our public servants in the federal government. The Tenth Amendment re-emphasized that only certain limited "powers" were "delegated to the United States by the Constitution."
Article I stated that we vested in Congress the power to "make all Laws" that were "necessary and proper for carrying into Execution" absolutely "all" the "Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." So very many people demanded amendments that clearly established that certain exercises of federal power could not possibly be "necessary" or "proper," no matter what specious argument might be presented to the contrary. Many of the people demanding amendments regarding a bill of rights were known as Anti-Federalists, including George Mason who prepared Virginia's Declaration of Rights in 1776 and Elbridge Gerry, both of whom helped draft the Constitution, but refused to sign it because it lacked a bill of rights. Some were Federalists, including Thomas Jefferson.
The point of the First Amendment (emphasizing what Congress had no power to do) was to expressly emphasize that nobody in federal government was delegated any power to retaliate or discriminate (in any manner) against anyone for exercising any right or freedom in the First Amendment. As SCOTUS and James Madison repeatedly emphasized, the First Amendment secures our freedom to think, express our thoughts and associate and our right to assemble and petition (freedom of expression and freedom of association), especially for religious or political purposes. Nobody in federal government was delegated any power to retaliate or discriminate against the current partners, employees or clients of a law firm merely because they chose to associate with each other and such firm.
Article II extremely strongly emphasized that We the People "vested in a President" ONLY such "Power" as was necessary and proper to "preserve, protect and defend" our "Constitution" to "the best of" the president's "Ability," including by "tak[ing] Care that" all "Laws be faithfully executed." Article VI powerfully emphasized that our Constitution is first among the laws that are "the supreme Law of the Land."
Nothing in our Constitution vested any power in any federal employee to knowingly violate our Constitution in any way. Moreover, nothing in our Constitution vested any power in any federal employee to even inadvertently violate our rights and freedoms secured by the First Amendment.
The EO is also, like so much Trump does, short-sighted for conservatives and Republicans. There are, as your rendition of l'affaire Clement, demonstrates, far fewer conservative firms or even conservative friendly firms than there are Republican ones. This is particularly true for social conservative causes. It would be supremely easy by this method for a Democratic President to destroy the entire conservative bar through this method.
Are you saying the leftists have not tried it? If not for Trump putting few originalists or close to originalist on SCOTUS, we would be no different than Romania. The elitism is oozing from these comments. Don't worry about conservatives. The way Dems are acting up, we may not see a Dem president for several decades (God willing).
Somebody asked you previously whether you are an attorney. Are you? Are you any kind of public servant? Our Constitution requires all legislators and "all executive and judicial Officers, both of the United States and of [all] States" (including all attorneys admitted to any court) to swear or affirm an "Oath" acknowledging that they are "bound" to "support this Constitution." Did you ever swear an oath to support our Constitution?
The EO is not defensible by good faith arguments. That said, my prediction is that there will be comments supporting Trump’s EO, and those will rely on false equivalency, what-aboutism, and bad faith arguments.
I’m curious what productive discussion this EO and substack space could possibly engender, even if people shared a common reality of fact / were in a true marketplace of ideas. A place for people to reaffirm our shared values in the legal system and in legal representation? That’s all I can think of.
I agree. The principles here are simple and straightforward and they've been articulated by all the current SCOTUS justices with even the most "conservative" credentials.
In 2023 in 303 Creative LLC v. Elenis, SCOTUS re-emphasized (by italicizing both instances of "some") that, “A commitment to speech for only some messages and some persons is no commitment at all.”
“The First Amendment” secures for “all persons” the right to be “free to think and speak as they wish,” so “all persons are free to think and speak as they wish.” “[T]he First Amendment extends to all persons,” including those who communicate for “profit.” “All manner of speech” (including “pictures, films, paintings, drawings, and engravings,” “oral utterance and the printed word”) is under “the First Amendment’s protections.”
The dissenters in Elenis (quoting controlling precedent in Roberts v. United States Jaycees) focused on the principle that no public servant may “aim at the suppression of speech” on “the basis of viewpoint.” Public servants were given no power to “appl[y] the law” for “the purpose of hampering” attorneys’ “ability to express” their or their client’s “views” regarding relevant issues. Citing controlling precedent in Hishon v. King & Spalding, the Elenis dissenters emphasized that attorneys' “services (legal advocacy) were expressive; indeed, they consisted of speech.” Judges have no power to “inhibi[t]” attorneys’ “ability to advocate” their or their clients’ “ideas and beliefs.”
David says that "if the shoe was on the other foot" argument is what-aboutism but I call BS. It's a very convenient way to avoid an honest debate about abuses of the progressive legal left that has been going on for years. Legal profession is already knee deep in politics. Perhaps if you raised your voices years ago, it would sound sincere now. You only complain because finally the abusers are finally getting a taste of their own medicine.
I don't know if you intend to include me in the "you" here, but I've been writing about "abuses of the progressive legal left" when it comes to viewpoint discrimination and speech issues for years. If you look at the top 20 stories of this newsletter, 7 would fall under that category.
Those stories are mainly about problems at law schools. So they don't even include my many posts about goings-on in the law firm world:
https://davidlat.substack.com/p/on-the-need-for-diverse-viewpoints
https://davidlat.substack.com/p/more-thoughts-on-intellectual-diversity
https://davidlat.substack.com/p/paul-clement-leaves-kirkland-and
And I've talked about these issues on my podcast as well, with guests like Paul Clement and Ilya Shapiro—who have experienced cancel culture in the legal profession firsthand.
Are the actual abusers getting a taste of their own medicine? Do you think anyone who did anything to Trump many years ago even still is employed by this law firm?
Here, Trump is openly trying to destroy a commercial enterprise (and threatening to punish or destroy clients whom no one even argues were guilty of any misconduct), and in the process Trump will very likely wreck the financial viability of many individuals and families who in no way can fairly be punished for anybody else's misconduct. Is that really the kind of arbitrariness you want to encourage in our public servants? Do you think such dangerous and brazen usurpations of power will stop with Trump and his lackeys?
What is "honest" about advocating violations of our Constitution? Think about the real consequences of what you are advocating. You are advocating a return to the blatantly unconstitutional arbitrary viciousness of people in power injuring people because of their mere speech, i.e., so-called seditious libel. You are advocating pretending that something in our Constitution gave the president the power to destroy any commercial enterprise that ever did anything criminal or even anything to offend any person in power. That's directly contrary to the way our criminal laws and our Constitution were written and work.
Congress (typically with the president, but never the president alone) has the power and duty to make federal criminal law. Federal statutes identify conduct that is criminal and they prescribe the punishment that can be imposed on any person or entity for committing any crime. But before punishment can be imposed, our public servants must afford the accused all due process of law. Due process of law includes a public trial in which guilt is decided by a jury of our peers who represent us. It includes a trial in which evidence is produced publicly in compliance with federal law. It includes the government bearing its burden of proof (beyond a reasonable doubt) that the person being punished committed the crime.
You are advocating an anti-constitutional system that is exactly what the Founders and Framers worked hard to prevent, including with structural precautions and restrictions such as federalism and separation of powers. See, e.g., The Federalist No. 47:
"The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many" is "the very definition of tyranny."
And then quoting Montesquieu's The Spirit of the Laws:
"There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates," or, "if the power of judging be not separated from the legislative and executive powers."
"When the legislative and executive powers are united in the same person or body," says [Montesquieu], "there can be no liberty, because [ ] THE SAME [person or body of persons can actually or essentially] ENACT tyrannical laws to EXECUTE them in a tyrannical manner. " "Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for THE JUDGE would then be THE LEGISLATOR. Were it joined to the executive power, THE JUDGE might behave with all the violence of AN OPPRESSOR. "
You are advocating a system in which one person (the president) arbitrarily decides what conduct can be punished, arbitrarily decides who committed such conduct, and then arbitrarily imposes whatever punishment he wants or thinks he can. Why would you want to advocate for that? If we don't enforce our Constitution regarding the usurpations of power at issue here, where should we begin enforcing our Constitution?
How can fidelity to the plain meaning of the plain text of the Constitution not "sound sincere now"? Do you really believe that what you simply don't know about how other people "raised" their "voices years ago" can somehow justify violating the most clear and crucial parts of our Constitution now? Even if someone didn't speak out years ago, how can that be relevant to any discussion today of whether any conduct of any public servant today violates our Constitution? Why would merely having "raised" our "voices years ago" regarding other issues matter more to you now than the actual text and meaning of our Constitution that is relevant to the issue that we are discussing now?
Your argument is merely an emotional objection to the plain text of our Constitution. Our Constitution clearly provides for amendments (using multiple possible processes) precisely because people can (and historically did) start to speak out about things that they didn't speak out about previously. Take the entire Bill of Rights (Amendments I through X) and Amendments XVIII, XIX, XXIV and XXVI as examples.
Moreover, what Trump is doing now is not difficult to understand. He repeatedly makes the unconstitutionality of his conduct very clear. He seems to be proud of it. He's obviously well aware that he cannot be voted out of office (or re-elected), and he almost certainly won't be impeached again, much less convicted and removed from office. And six SCOTUS justices said Trump cannot be prosecuted (by the federal government) for his criminal abuses and usurpations of powers. So does it really surprise you that Trump is going so far overboard that people are speaking out now when they didn't years ago?
Furthermore, thinking of this as merely left v. right is far too simplistic. As many Republicans (and conservatives) are well aware, Trump is neither a real Republican nor a real conservative. Trump is the epitome of a RINO. Trump is the autonomous leader of a massive MAGA mob. As far as I (and many Republicans can ascertain), Trump couldn't care less about the Republican party (or whatever might happen to it or whatever might be left of it after Trump is done with it). Trump also obviously couldn't care less about what anyone thinks of the Office of the Presidency or whatever might happen to it or whatever might be left of it after Trump is done with it.
In addition, not everyone is motivated primarily by partisan purposes. I'm definitely not speaking out now for any partisan purpose. I'm not even speaking out now primarily because of what Trump has done. I'm speaking out now (and I have been for years) because of what judges have done and are doing. To give a relevant example, the six SCOTUS justices who said Trump has immunity from criminal prosecution simply lied about our Constitution. There's no way they actually believed the people who wrote or ratified our Constitution actually delegated such extreme power to any president. (Most of them were terrified of potential abuses of executive power. They had just fought a devastating war to get out from under a powerful executive. Look at all the times they raged against a "standing army." Especially in the South, the people in power were terrified of all federal power because they feared it would be used to abolish slavery and the importation of enslaved people.) So I, personally, appreciate what Trump is doing. He's making fools of those justices and their so-called judgment. Trump is promptly proving (so we don't have to wait for a later president to prove) that pretending that presidents cannot be prosecuted for criminal abuses or usurpations of a power is contrary to our Constitution and common sense. It is very dangerous.
Here’s what I wrote about this a few days ago:
https://substack.com/@taxthoughts/note/p-158917725?r=573pt8&utm_medium=ios&utm_source=notes-share-action
I totally agree with you on this:
"Cancelling law firms seems to me a prickly and defensive response to political enemies having legal representation. I get that the lawyers were closely identified with their clients (the Democratic National Committee and special counsel Jack Smith, who brought federal prosecutions against President Trump). But President Trump’s lawyers are probably closely identified with him. Should the next President cancel them?"
As I wrote last weekend in Judicial Notice:
"If we want to preserve the adversarial process that lies at the heart of our justice system, we can’t go around punishing lawyers for representing controversial clients or causes. I fear that Donald Trump might have started a vicious cycle. Will the next Democratic administration target Jones Day, Consovoy McCarthy, or Cooper & Kirk? I hope not. But with yet another norm broken by Trump, I can’t rule it out."
https://davidlat.substack.com/p/trump-v-biglaw-maga-v-justice-amy-coney-barrett-paul-clement-emil-bove-latham-watkins-ed-siskel
It is far more than merely "prickly and defensive." It is viciously, maliciously and knowingly unconstitutional. It is criminal (see, for example, my posts here about 18 U.S.C. 241 and 242).
One thing to keep in mind about Trump and his lawyers (lawyers who previously represented Trump personally, but who now are employed by the U.S. Department of Justice) is that they worked on defending Trump's freedom of speech. They researched the controlling SCOTUS precedent, and they included it in court filings.
They KNEW and KNOW that the conduct now of Trump and some of his sycophants is violating our rights secured by our Constitution and federal law. Their knowledge makes their conduct criminal.
There's an entirely reasonable, defensible (i.e., "objective") narrative that this is not starting something, it's continuing something. Perhaps expanding it. Again, I'm not placing blame about where it started. Strikes me that that's a bottomless hole, and better left to scholars.
Scholars have a role to play. They can educate people in power about the rights they're violating. Then, prosecutors should step in and prosecute purported public servants for violating their oaths (committing perjury), violating our Constitution and violating the privileges and immunities of particular persons. That is how Congress and at least one president (who typically signs laws) (as elected representatives of the people) determined these violations should be prevented and stopped.
Sure. Not dismissing that pursuit or scholars. And I'm all for the realpolitik of bringing force to bear to protect principles, or further political or social goals, or whatever. What I think I'm trying to express is a certain fatigue around outrage about "norms being violated." Do fight, and fight on.
Forget about mere outrage. Forget about mere partisanship. Please bear in mind that this is a discussion in the legal community about our Constitution and whether it actually will fulfill its primary purpose (powerfully emphasized with its first words (our first words as one people of one nation)).
"We the People" did "ordain and establish this Constitution" and our "Union" to continuously work toward "a more perfect Union, establish Justice," and "secure the Blessings of Liberty to ourselves and our Posterity."
I understand. We're operating within different frameworks, or perhaps from different perceptions of what's already happened. The Constitution is great. I love it, too. There is reason to believe that relying on it in this way, treating it as a failsafe or backstop, is possibly missing something. Among various political corners, there is discourse about the water you're swimming in, or, alternatively, the water getting hotter gradually. At some point, we wake up.
You are just an ideologue who’s brain has been poisoned.
What Trump and his minions fail to understand is that one day a Democratic or some other non-Republican will occupy the Oval Office. And the new occupant will use all of the presidential powers created or extended by Trump to seek his or her own revenge on the Republicans and their law firms. And with regard to Perkins Coie, the mere entry of the Executive Order damaged the firm perhaps beyond repair. During the next four years, it is obvious that to do business with what is left of the federal government or to escape Trump's wrath corporate America will have to do a Bezos, kiss the a** of the Orange Baby and avoid doing business with any law firm or other business that has not done likewise.
Exactly. I totally agree with you. As I wrote in my post from the other day about Ed Martin's letter to Georgetown Law, "President Donald Trump won’t be in office forever, but the norms he either establishes or eviscerates will likely endure long after he has left the White House. That’s why we must all stand up for the First Amendment, even—and especially—when it protects speech we might not like."
But I don't know how we break the cycle. Nobody wants to engage in "unilateral disarmament" (as reflected in some of the comments on this post that defend the Order).
Link: https://davidlat.substack.com/p/us-attorney-ed-martin-letter-to-georgetown-law-dean-william-treanor
Where do we locate the egg, or the chicken, in this cycle of "one day the other side..." That line has been trotted out repeatedly over the last ten years, through one power center to another. These are not operating principles.
Why bother? What could it possibly matter where or how blatant and deliberate violations of our Constitution started? Far better (and far more faithful to our Constitution) for every public servant and We the People to focus on ending such violations.
Definitely. I commend the principle. Is it possible that "ending such violations" is in the eye of the beholder? One man's violation is another man's justice?
To answer that, please consider the plain text of the federal criminal statutes that I quoted (18 U.S.C. 241 and 242) and our Constitution and please consider the text of multiple SCOTUS opinions emphasizing and elaborating on the rights and freedoms secured by the First Amendment. These issues and perspectives aren't merely subjective. They're constitutional.
I think you take my meaning. Constitutional *is* subjective.
I beg to differ. It's a nice device to show people that they're being short-sighted. But it shouldn't be true, and it almost certainly won't be true. The same people advocating violations of our First Amendment rights and freedoms know very well how to defend those same rights and freedoms. They've been doing it for decades. Ilya Shapiro provides an excellent example. Federal officials KNOW they're violating our Constitution now. So it is far better to point out that when they're out of power, they can (and should be) prosecuted for their criminal misconduct, e.g., under 18 U.S.C. 241 or 242, which I quoted in my other comments here.
I would not hold my breath waiting on Trump's Justice Department to prosecute Trump or any of his appointees under 18 U.S.C. §241 and 18 U.S.C. §242 or any other provision of the US Code. And we all saw how well prosecuting and suing Trump in state and federal court for criminal violations and civil damages turned out. The only "courthouse winners" were E Jean Carroll and the State of New York. And both of those cases are on appeal. The big winner, of course, was Trump who was reelected although a convicted felon. There is no criminal or civil remedy when a constitutional system which relies on the "good faith" of the participants and on common beliefs like the rule of law and the equality of all persons is taken over by jerks that operate only on "bad faith" and have rejected all concepts and beliefs undergirding the constitutional framework.
There's no good reason to acquiesce in the obviously anti-constitutional "judgment" of a handful of judges in Trump v. United States (in which six judges essentially admitted in writing that they knowingly violated our Constitution).
The Tenth Amendment perfectly clearly and unambiguously re-emphasized the president could have only the limited "Powers" that were "delegated" to the president "by the Constitution."
In Article II of our Constitution, We the People explicitly "vested in a President" ONLY the power "to the best of" the president's "Ability" to "preserve, protect and defend" our "Constitution," including by "tak[ing] Care that the Laws be faithfully executed.'
It is impossible to believe that any of the foregoing (much less all of it) meant we delegated to the president the power to engage in abuses or usurpations of power that multiple Congresses and multiple presidents made criminal in federal statutes (to protect the people from abuses or usurpations of power in violation of our Constitution).
Any subsequent president should prosecute Trump and others in his administration who are committing criminal abuses of power. That way, SCOTUS justices can think again and think better about actually fulfilling their own oaths "to support and defend" our "Constitution" against "all enemies, foreign and domestic" and how to truly "bear true faith and allegiance to" our Constitution (as they and every federal employee (except the president) swore they would in compliance with 5 U.S.C. 3331).
Thanks for opening the comments, David. I genuinely appreciate the shock, from you and others, about the blatant misuse of executive power. I'm slightly older than middle-age, and, prior to 2020, have always been a center-Left type, and Dem voter.
Unfortunately, that all changed. The last five-ish years disabused many of us of our expectations about decency, fair-play, and commonly held boundaries. I'm not blaming any particular group. I don't feel partisan about it. I think what we've watched and are watching is the falling away of the idealistic norms of a previous governing ideology (call it Liberalism) as Realpolitik surges forward in a way not overtly seen in my lifetime.
As best as I can discern, and this is, of course, deeply subjective, the ship already sailed, and the horse already left the barn. For better or worse, and only better bc now we can all see what's "real," the bloodsport knife-fight of politics is happening right in front of our eyes.
Many here may have read N.S. Lyons. I recommend his stuff for one angle on the hinge point we're living through. Times are changing, folks. Abandon all hope, ye who enter here.
As a descriptive matter, you might be right—and I fear that you are.
But as a normative matter, what do you propose? Should we just stop criticizing things we view as wrong because we're all screwed in the end?
I've doled out plenty of criticism in these pages of what I see as abuses of power. Sometimes it's Trump abusing his control over the federal government. Sometimes it's left-leaning law professors and students abusing their control over academia to squelch dissenting voices.
But if "it's all power in the end," is there any point to calling out perceived injustice?
(Other than, I suppose, my needing to make a living by writing about SOMETHING....)
Lol. No, man. We do the best we can, and I'm all for speaking up and out about principles. Also not trying to black-pill, or do the Accelerationist thing. In my own way, I'm doing here exactly what you describe. Have you dipped into N.S. Lyons? Also recommend the various conversations about the rule of the managerial state (deep state theory, without the insanity), to swing to the side a bit and get a slightly different angle on things. One fundamental idea is that it's just mass society. (Globalism.) The bigger the group, the more complex (insanity-making) the system(s). Keep up the good work!
If we imagine a two-step process of 1) problem identification, and 2) solution implementation, I feel like we all get stuck in step 1, which is where we fall into the endlessly fractal games of finger-pointing and blame.
Dissident Dad, I appreciate your comment for skipping past step 1. Would love to hear some solutions for our society, but I fear some people’s “solution” is in fact the other side’s worst nightmare.
That said, just because that dynamic plays out on both sides doesn’t make those sides equal. A Christian Nationalist vision for the country is not morally equivalent to a xenophobic nationalist’s is not equivalent to a “woke” vision (which the Right frequently stokes fears of but never fully defines).
Heartily agree w "...dynamic plays out on both sides doesn't make those sides equal." That strikes me as a fundamental observation? (Vs. the Center idea, and/or the Pendulum Swings heuristic.) While I have my gut instincts about all of these questions, observations over the last half decade have left me with a best thesis that Local is about the best we can do. Starting with Family, obviously, but then direct, physical community. School. Literal neighbors. Small businesses. And I've seen this solution now from both "sides" (obvs more than two sides). Other than that, it's Reality playing out in front of us, a system that's deeply complex. It's interesting to watch the show. ;)
I agree with your "do the best we can" comment above, as well as this one.
When times are crazy, I think it's most helpful and productive to focus on what we do have the ability to influence—such as our families, schools, neighbors, and communities.
That's exactly it. Thanks again, David!
Do you think we might as well throw away our Constitution because some citizens have concluded it's more comfortable for them to think "the ship already sailed, and the horse already left the barn" (or as you said above, some people are feeling "fatigued")? People who think that way should crack a book about who and what sacrifices and suffering really made America great. Or maybe this Memorial Day, maybe they should go visit a national cemetery. Better yet, they should go toward sunset on a quiet day and feel the significance of "the bivouac of the dead" under their tiny white stone tents. While they're there, they can read (and maybe think about) the posted copy of President Lincoln's Gettysburg Address. An awesome number of Americans have made awful sacrifices (in many ways) for the rights, privileges and immunities that some people now cavalierly discard, disrespect or outright trample on.
No argument, man. Seriously, I'm all for it. The only qualifier I'd offer is that it isn't comfort. The last decade have held many long, dark nights of the soul, for all of us, and I suspect nothing less of the decade to come.
I wish I could agree. I really do. But it really is about mere comfort for too many. People who haven't fought for our freedoms, people who have not really bled for them (literally or figuratively), too often just don't have any real appreciation for the effort required to defend them. So it's dangerously easy for too many people to say or imply that the Constitution really just doesn't matter anymore.
Exactly 💯
David, thank you for again speaking up in defense of our common interests. You remind me of President Jefferson's first inaugural address 224 years ago in March 1801 declaring, "We are all Republicans, we are all Federalists."
In 1798, an overwhelmingly Federalist Congress and President John Adams united, in part to attack (and in part, to enhance protections for) our freedom of speech and press. They did so to secure a victory in the elections of 1800. Their actions cost them the elections of 1800. Federalist congressmen were swept out of office, and President Adams became the only one of the first five to be elected only once.
Jefferson began his inaugural address by emphasizing that with the election the people re-emphasized their right and power "to think freely and to speak and to write what they think" and this was "now decided [again] by the voice of the nation, announced according to the rules of the Constitution." Jefferson concluded by declaring that (under our system of self-government) our government is "the only one where every man, at the call of the law, would fly to the standard of the law, and would meet invasions of the public order as his own personal concern."
Turn about is fairplay.
Democrats set the board,the games have already begun before now...
At some point, we all have to be grownups who say "enough is enough." Let's find a way to do things fairly.
Sadly, the side that stops fighting is the side that loses. There is no more center.
I hear you. But perhaps one side will have enough voting power to say, "this is destructive long-term, so let's stop doing it."
Very far from fair play, turn-about here is clearly criminal.
Any federal official “conspir[ing]" with anyone "to injure, oppress, threaten, or intimidate” "any person" (including attorneys and law firms) “in the free exercise or enjoyment of any right or privilege secured to” them “by the Constitution or laws of the United States, or because of” their “having so exercised” any such “right or privilege” commits a crime. 18 U.S.C. 241.
Any federal official acting “under color of any law” or “custom” to “willfully” deprive "any person" (including attorneys and law firms) “of any rights, privileges, or immunities secured or protected by” any provision of the “Constitution” or federal “laws” commits a crime. 18 U.S.C. 242. No action by or custom of any federal official is exempt. Not even invoking some unconstitutional or anti-constitutional historical "tradition" is a defense.
Sure. All correct.
Then denying certain entities their securing government contracts applies?
Is it fair play? Or does an eye for an eye make the whole world blind?
It is hypothetical to ask the side with arrows in their shields to not return Volley for Volley. Period.
Do you think or care at all that you're advocating direct and blatant violations of our Constitution? Do you think or care at all that you're doing so for the purpose of allowing federal officials to usurp powers that were withheld from them (in Article II) and that the First Amendment expressly denied them for the purpose protecting us all?
The Constitution is dead before to Democrats why do you not complain to them...
If we allow whataboutism to entirely substitute for actual substantive thought about serious issues, our political discourse becomes as inane as the squabbling of second graders. Yes, all political parties are imperfect, but that underlying fact is not a reason to ignore the reality of what is actually happening now, as the executive directly attacks lawyers simply for doing their job as lawyers.
That frame no longer applies (sadly). Attaching to that ideal is an anachronism.
The primary point of having a written Constitution is that its delegations of power and its restrictions on abuses or usurpations of power necessarily continue to apply indefinitely. That really was the primary point of the Civil War. No public official, and no violent mob, can merely choose to tear up our Constitution or rip out the heart of its protections.
Why did you not "Advocate" in the last 4 and more years as they weaponized lawyers with the letter agency's?....
That ship 🚢 has ⛵️
And yet they do. Many aspects of the Constitution are ignored, depending on where power is located, or who is wielding it. There's a sizable discourse about this available.
Hypocritical.
Stupid auto type
Perkins Coie naturally wants to frame this dispute as a First Amendment issue. But there is another way to frame it. When its former partner, Marc Elias, acted as a cutout for the DNC in commissioning the debunked Steele Dossier it wasn’t merely providing legal advice to a client. It was actively engaged with the DNC in an extra-legal effort to affect the outcome of an election and later to hinder the President during his first term. The firm was a participant in the scheme, not merely an advisor to a client. If Perkins Coie has repudiated the Steele Dossier commissioned by its then partner I haven’t heard of it. And before someone points out that law firms frequently contract with experts to produce reports that can be shielded from discovery by the attorney-client privilege it is obvious that it was intended that the contents of the Steele Dossier were to be given the widest possible dissemination. Perkins Coie crossed the line between advocacy and active participation in its client’s disgraceful scheme. They are reaping what they sowed.
You say lawyers were not "merely providing legal advice to a client," they were "actively engaged with the DNC in an extra-legal effort to affect the outcome of an election and later to hinder the President during his first term." "Perkins Coie crossed the line between advocacy and active participation in its client’s [ ] scheme." It sounds like you're implying someone committed a crime or violated rules of professional conduct. There's due process of law, including appropriate forums, for proving that kind of thing.
We cannot logically defend or acquiesce in the executive branch actions at issue here with such mere implications. For more than 200 years, our Constitution has emphasized the controlling principle: "No person" may be "deprived" by any federal official any "liberty" or any "property" until after being afforded all "due process of law." The actions of Trump and some DOJ attorneys is highly reminiscent of exactly the kind of abuses of power that resulted in the Declaration of Independence (it's actually in the Declaration) and then the Revolutionary War. Such actions are a big part of the reason that our Constitution has a Bill of Rights (including the First, Fourth, Fifth, Ninth and Tenth Amendments).
It's worthwhile reading about why the American people stood up and declared war on, and waged actual war against, their actual king, including the following in the Declaration of Independence:
"He has obstructed the Administration of Justice"
"He has [ ] sent hither Swarms of Officers to harass our People, and eat out their Substance."
"He has combined with others" to create "pretended Legislation" for purposes including the following: "cutting off our Trade," "depriving us in many Cases, of the Benefits of Trial by Jury," having people "tried for pretended Offences" and "taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Government."
"He has excited domestic insurrections amongst us"
I intentionally did not say that a crime was committed. What I did say was that what the firm (through its then partner) did in commissioning the Steele Dossier was not speech entitled to the protection of the First Amendment.
How did you reach that conclusion? How did the firm or its lawyers do anything more than exercise the freedom of expression and freedom of association expressly secured by the First Amendment? How did lawyers and clients joining a "scheme" (that you concede is not criminal) amount to anything more than exercising "the right of the people peaceably to assemble, and to petition the Government"? (I'm not arguing or implying that they didn't. I don't know. I don't recall the material facts there. I'm merely opposing your argument or implication that the conduct you described is, for some reason, not protected by the First Amendment.)
Serving as the financial conduit between the DNC and Fusion GPS is not speech.
Are you sure? A majority of SCOTUS (repeatedly) said that channeling money for political purposes was protected expression. Do any material facts distinguish this situation from what SCOTUS said was protected?
Well, Hillary’s campaign paid a $113,000 fine for election law violations related to the Steele Dossier, so there’s that.
My wife asks me at least once a day, "How do we stop this?" You can protest, call your representatives, and contribute to various causes. But when you deal with an opponent who recognizes no limits, does not care what the law says, and is fine with disobeying court orders, the only answer is to replace him. Assuming they are held, I see no relief until the 2026 mid-term elections. Meanwhile, all we can do is try to limit the damage.
David, I disagree with you about non-neutral programs intended to address DEI concerns. Shouldn't private companies be free to hire anybody that they choose? And for any purpose? I am being facetious here. Bigots still want to have their private clubs that discriminate against women and POC, defending this a right of free association. But, they also want their less-than-stellar offspring to find useful employment, trying to use the very laws that were intended to carve-out areas of employment, housing, etc. as safe havens from such discrimination.
Consider, if you will, the following thought experiment: As the leader of an established large law firm, you come to realize that your firm has explicitly discriminated against women and POC in hiring and promotion, for decades. Recognizing this as morally wrong, what do you do? Is it sufficient to just say "sorry" we won't do that in the future? Inquiring minds want to know!
Title VII of the Civil Rights Act of 1964 "makes it illegal to discriminate against a person on the basis of race, color, religion, sex, or national origin."
The Supreme Court is likely to issue a decision in Ames v. Ohio Department of Youth Services making clear that Title VII protects members of majority groups, like white people or straight people, to the same extent that it protects members of minority groups, like people of color or LGBTQ people.
Some circuit courts currently have different standards for members of majority groups versus members of minority groups. Based on the oral argument in Ames, it sounds like SCOTUS is about to reject having different standards.
You might not like that as a policy matter. You're free to lobby Congress to amend Title VII to give minorities greater protection than majorities. But the Supreme Court is probably about to clarify that under current law, discriminating against white people or straight people is just as illegal as discriminating against people of color or LGBTQ people.
Speaking for myself, a person of color and a member of the LGBTQ community, I'm fine with that.
Sources:
https://www.eeoc.gov/youth/what-laws-does-eeoc-enforce
https://www.scotusblog.com/2025/02/court-appears-likely-to-side-with-straight-woman-in-reverse-discrimination-suit/
https://www.nytimes.com/2025/02/26/us/politics/supreme-court-reverse-discrimination.html
https://www.washingtonpost.com/politics/2025/02/26/supreme-court-workplace-discrimination-marlean-ames/
There is also the oft-overlooked DEI on the right, especially for conservative Christians — some federal judges hire their 1L interns exclusively via the ADF’s Blackstone Fellowship program, which has a religious test for eligibility (must affirm certain Christian doctrines).
If that's true, it clearly violates fundamental tenets of our Constitution. Article VI pointedly emphasized that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." It also pointedly emphasized that our "Constitution" and federal "Laws" that are "made in Pursuance" of our Constitution and "Treaties" are "the supreme Law of the Land; and the Judges in every State shall be bound thereby." It further emphasized that all legislators and "all executive and judicial Officers, both of the United States and of" all "States" are "bound" to "support this Constitution" (including in the foregoing respects). Article III further emphasized that federal "judicial Power shall extend" (all federal power shall extend) no further than permitted "under this Constitution, the Laws of the United States, and Treaties."
They’re paid by the ADF, not by the judges, so I’m not sure if an unpaid internship is an office of the United States.
"it’s harder for folks on the right to make ad hominem attacks against the conservative Wall Street Journal editorial board"
A quick review of Twitter would establish that, in fact, it's extremely easy for folks on the right to make such ad hominem attacks because they've already been primed to reject anything negative the WSJ says about Trump due to the WSJ's prior (correct) criticism of his tariff policies.