Trump cannot ruin America without the help of lawyers

Unfortunately, it seems clear that he will have no trouble finding ones willing to do his bidding.

Section 1 of the Fourteenth Amendment of the U.S. Constitution provides:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The 200 or so “Day One” executive orders issued by the only convicted felon in the history of the U.S. to be allowed to serve as POTUS contained many odious policy positions. That blitzkrieg of executive overreach also contained at least one blatantly obvious unconstitutional order – executive the order seeking to end recognition of birthright citizenship.

As reflected above in the quoted language of the Constitution the question presented is nowhere near a close one. Yet, despite the fact that lawyers, in any jurisdiction with a version of ABA Model Rule 3.1, are ethically prohibited from “defend[ing] a proceeding, or assert[ing] or controvert[ing] an issue therein, unless after reasonable inquiry the lawyer has a basis in law and fact for doing so that is not frivolous.” Now, lawyers knowledgeable about the ethics rules also know that the same rule permits lawyers to make “a good faith argument for an extension, modification, or reversal of existing law.” But the simple truth that a President cannot revise the Constitution through an Executive Order is Con Law 101 stuff and trying to say otherwise is not a “good faith argument” for reversing a current provision of the Constitution.

Unsurprisingly, a suit was immediately filed to challenge this unconstitutional executive order. Sadly, lawyers for the United States, despite the clear violation of Rule 3.1 required, did not hesitate to attempt to defend the order so that it might be enforced. Thankfully, the federal district court judge who was assigned to the lawsuit, a Reagan appointee, has already granted injunctive relief against enforcement of the order.

Media reports indicate that judge, Judge Coughenour, stated during the hearing: “I’ve been on the bench for over four decades. I can’t remember another case where the question presented is as clear as this one. This is a blatantly unconstitutional order.”

Even more thankfully, early media reports are reflecting that the judge voiced pretty much the same sentiment I am about how difficult it is to grasp that any licensed attorney would think they could attempt to defend the order. After directly questioning the lawyer for the U.S. as to whether this order is constitutional and receiving an affirmative response, the judge is quoted to have said:

“Frankly, I have difficulty understanding how a member of the Bar could state unequivocally that this is a constitutional order. It just boggles my mind.”

And to be clear, government attorneys refusing to attempt to enforce or defend laws passed by their legislature or orders signed by governors of states is not a common occurrence, but it does in fact happen. It should have happened here. Frankly, no one paying any attention to what is coming should have thought it would have happened. But the fact that it didn’t on something this blatant is simply more foreboding of where things stand now.

I hope to live long enough to see the lawyers who will be a part of this story as willing (if not actually eager though there are some of those as well) participants in protecting and advancing authoritarianism receive a historical upbraiding for their conduct.

If the Watergate scandal brought the cry of “Where were the lawyers?” I imagine the history of now and the years to come will sound more like “Who were these lawyers?”

In this first instance, near the top of the list of lawyers who will be in that historical discussion is a Justice Department attorney named Brett Shumate.