Bar Bulletin

Bar Bulletin

We Stand Against Autocracy

September 2020 Bar Bulletin

In early 2017, President Trump unleashed the first of many attacks on the federal judiciary when he verbally assaulted U.S. District Judge James Robart right here in the Western District of Washington.

Describing Judge Robart’s halting of the Trump administration’s ill-advised and racist Travel Ban as “the opinion of this so-called judge,” and that it was “ridiculous” and would imperil the nation. The President even added the threatening comment, “if something happens, blame him and the court system.”

The attack on our own Judge Robart, highly regarded for his cerebral and even-handed approach to the law, remains cautionary today. Even as hundreds of obnoxious late night and early morning tweets have passed under the bridge, this attack on our courts has presaged a telling assault on the rule of law itself by the President and those who enable him in the Senate.

Lest we forget, President Trump has since ranged far and wide in expressing his contempt for legal institutions, courts, prosecutors and lawyers.

Following his impeachment trial, he declared himself, “I guess, the chief law enforcement officer of the country.” And, as if to prove himself not only “chief” but above the rule of law, he has openly called for the prosecution and jailing of his political rivals, unraveled criminal prosecution of his corrupt cronies, misused the pardon power and called upon militias (militias!) to “liberate Michigan” from the cruelty of wearing protective masks during the pandemic.

With the rule of law in a civil society comes accountability. Seeking to avoid any such inconvenience and embarrassment, President Trump has removed five Inspectors General who might find wrongdoing in his own administration. He has removed U.S. Attorneys in New York and Washington DC, even as they are overseeing criminal prosecution of his cronies and to make room for his puppets.

The cause of international law and human rights have been dealt grievous blows in his contempt for global rule of law. His recent use of sanctions and the banning of U.S. travel permits directed against prosecutors and officials of the International Criminal Court blatantly undermines war crimes investigations. Legitimate debate remains over the role of international legal institutions, but President Trump employs methods reserved for genocidaires and human traffickers. Much of the world now questions the American role in international human rights.

He’s continued his attacks on his own executive branch, including the Justice Department and called for the jailing of former F.B.I. Director Jim Comey, tweeting, “what are the consequences for his unlawful conduct. Could it be jail?” Not content to undermine the courts and Congress, he regularly undermines is own appointments within the executive branch, and claims to, “consider firing everybody at some point.”

He has ignored rebukes from media figures (“fake news”), appalled foreign leaders and drawn criticism from the normally taciturn Chief Justice John Roberts. He’s continued to lash out at the courts, describing the Ninth Circuit as “a disgrace.” Enlisting a compliant Attorney General to do his bidding, he is conspiring with the Senate majority to fill our federal courts with ideologues. These appointments appear committed to turning back the clock on racial justice, arming society with assault weapons, and dismantling the rights of women, immigrants and the LGBTQ+ community.

In fact, from the day he took office, Mr. Trump has governed as though democratic checks and balances are optional. “I can do whatever I want,” he has said repeatedly. This includes intervening in federal prosecutions to protect his friends, soliciting foreign interference in American elections and tear-gassing peaceful protesters for a photo op in front of a church.

Open defiance of the law by calling for Russian, Ukrainian and Chinese interference in our elections should be warning enough of his intentions. Now as we countdown to his potential reelection, we should all be vigilant and ready to counter illegal and unconstitutional conduct on a greater scale.

Defiance of court orders, mobilization of federal agents and politicizing and misusing the U.S. military should be the stuff of dystopian political novels.

Unfortunately, they are not.

These are the actions of a President who seeks to cast aside the Constitution and the rule of law, just like his heroes Vladimir Putin, Kim Jong-un and Rodrigo Duterte. Some have assumed his strong-man fantasy was harmless; perhaps only displayed to deflect attention from his leadership failures in combating the COVID-19 pandemic and the vast economic fallout. But when viewed in the context of his attacks on American institutions such as the courts, we are learning this may not be harmless after all.

And lest you be tempted to dismiss this and other descriptions as the political ramblings of a “Never Trumper,” think again.

Our bar association does more than provide service to its members, sponsor high quality CLE’s, support pro bono programs serving the poor and fund law school scholarships promoting diversity in our profession. As KCBA President, I will continue to speak out in defense of our courts and judges, and we as an association will not hesitate to call out a feckless President who undermines our legal institutions.

While we recognize our membership is politically diverse and we eschew partisan politics, look for us to speak out in the defense of judges, courts, the practice of law, access to justice, racial equity and the U.S. Constitution.

Silence is not an option - we are obligated as lawyers to stand up for the Constitution, the rule of law, and for the kind of justice that comes from those dedicated to seeking the common good. We cannot allow demagoguery, cronyism, greed and abuse of power to supplant our courts and legal institutions.

To do so, is to submit to autocracy. 

John McKay is the President of the King County Bar Association and a partner at Davis Wright Tremaine. He can be reached at johnmckay@dwt.com.

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