The ABA Lawyers Up

At last count there have been 287 law suits filed against the current presidential administration. As far as I can tell, each alleges a violation of one or more constitutional rights. With so much legal wrangling going on it’s hard to pick a favorite. But I believe I have identified one: the lawsuit being brought by the American Bar Association (ABA). 

The ABA is the largest association of lawyers in the United States and describes itself this way: 

The ABA was founded in 1878 on a commitment to set the legal and ethical foundation for the American nation. Today, it exists as a membership organization and stands committed to its mission of defending liberty and pursuing justice. 

Its goals are to: 

• defend liberty and pursue justice; 
• advocate for the legal profession; 
• eliminate bias and enhance diversity; 
• serve its members; and 
• advance the rule of law. 

Recently the current presidential administration issued a series of executive orders about ideas it doesn’t like: free and fair voting, climate change, independent scientific research, and many more. It also released a slew of executive orders against law firms who have taken positions it doesn’t like. Some of these law firms have compromised their principals in order to go along with the president, agreeing to change their activities and to donate millions of dollars in pro bono (that is, free) legal services to the president. Some have refused.

The willingness of law firms to kowtow to the executive office is deeply alarming. If lawyers are not defending the rule of law, who is? The current president has a long list of people he considers enemies, such as officials who worked under President Biden, attorneys who prosecuted the rioters who stormed the Capitol on January 6, 2021 (the president pardoned the insurrectionists); and his own former administrators. Without anyone to defend them, how will the rights of these individuals be protected? After the administration is done with them, who is next? A country without effective lawyering is one where we are all subject to abuse and worse.

So I was grateful to see the ABA step up. The ABA is quite inclusive regarding the range of defendants it names. It is suing the president and 18 departments and agencies and their heads, including the Department of Justice, Office of Management and Budget, Equal Employment Opportunity Commission, General Services Administration, Office of the Director of National Intelligence, and more. 

The complaint alleges that the president has “used the vast powers of the Executive Branch to coerce lawyers and law firms to abandon clients, causes, and policy positions the President does not like.” It says:

The Administration has carried out this policy (the “Law Firm Intimidation Policy” or “Policy”) through: 

• a series of materially identical executive orders designed to severely damage particular law firms and intimidate other firms and lawyers (the “Law Firm Orders”); 

• a series of similar “deals” or “settlements” between the Administration and certain law firms in order to avoid such Orders or have them rescinded; 

• other related executive orders, letters, and memoranda . . . ; 

• and public statements by the President and his Administration publicizing the objectives of the Law Firm Intimidation Policy. 

The complaint details the series of steps the administration has taken against firms it doesn’t like. Sanctions against the law firms include those related to security clearance, government contracts, and federal employment – basically, attempting to obstruct their ability to represent clients, thus forcing them to discontinue their practice of law. 

The complaint explains that while some firms did not collaborate with the administration and instead, sued, many others went along with it in order to “attempt to avoid becoming the next target.” This resulted in firms agreeing to stop what the president wanted them to stop, such as diversity, equity, and inclusion initiatives, and agreeing to donate hundreds of millions of dollars of free legal service. This despite the fact that there is “there is nothing stopping the government from returning to target [these firms] in the future.”

The allegation that sent the most chills up my spine was “The Law Firm Intimidation Policy has successfully coerced much of the profession to forego constitutionally protected activity, including litigation against the Administration.” Think about that for a minute:

Some of the top lawyers in our nation are now afraid to exercise their own constitutional rights.

The founders of our nation created a Constitution and included a Bill of Rights (safeguarding free speech, freedom of the press, due process of law, and other civil liberties) to shield everyday people – that’s you and me – from a tyrannical king. If there is no one left to enforce these rights, our system of government – and our nation as we know it – is over. Gone. Kaput. The ABA has got to win this one.

I will be following this case closely. May the outcome support our Constitution, protect our rights, and put an end to these egregious attempts to destroy our democracy.

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