Setting The Rule Of Law On Fire, Just To Watch It Burn

So I’ve added a tag to my blog, “Everything on Fire.” It may be partially self-explanatory, but I am adding it to blog entries that discuss the contempt for the rule of law held by the current federal administration, among others. I’ve gone back and tagged a few prior entries as well. I am not sure these entries will always have a specific legal ethics bent (they will, at least, touch on lawyers and law practice), but the rule of law is important and this is my blog and at least in this virtual space, I can do what I want.

Today’s entry concerns the president doing what he wants, except instead of his blog, it’s the whole country, and he’s doing a lot of things he’s not supposed to be doing. This month, he has taking retributive action against his perceived rivals, including lawyers who have sparred with him and his administration (current and past).A couple of weeks ago, he at least purported to revoke the security clearances of lawyers Mark Zaid and Norm Eisen, without any real justification or due process.

Yesterday, he issued an executive order targeting Covington & Burling LLP, a DC-based BigLaw firm  (described as “white shoe” in a lot of the press coverage) that had the audacity to represent (pro bono) former special prosecutor Jack Smith in his personal capacity. The order indicated that security clearances of anyone who worked with Smith be revoked, and directed review of contracts the government may have with Covington (which may not actually exist), to align “funding decisions with the interests of the citizens of the United States.”

To be clear, neither Covington nor its individual lawyers have been accused of wrongdoing, or being threats to the national order, or really doing anything other than representing a lawyer who (in a professional capacity, mind) opposed him.

 It is an understatement to say these actions are problematic, on several fronts. First, many of these lawyers have security clearances so that they can represent individuals involved in matters of national security (both related to the president and not). Taking away these tools means these lawyers can’t properly represent their clients, and their clients will be deprived of their choice of lawyer, again without any apparent due process.  

 These actions will also have a chilling effect on other lawyers and law firms’ willingness to take clients and positions contrary to the administration, or the president personally. I am not a First Amendment scholar but I see huge free speech ramifications here. This is not how any of this should work in a democracy.

 I may not have any answers as to how to fix this—when I am not wearing my ethics hat, my focus has been on election law, not “how do we fix democratic backsliding” law, but I will speak up when I can.