Criminal Law Library Blog
Opening Statement:
In a democracy founded on the rule of law, the independence of the legal profession is not merely a professional concern, it is a public necessity. Recent events involving unprecedented attempts to target a prominent law firm highlight the critical intersection between the role of lawyers and the constitutional limits on presidential power. Understanding this moment requires not only examining the specific facts but appreciating the broader principles at stake: free speech, access to counsel, and the preservation of democratic governance against executive overreach.
Introduction
In the United States, lawyers and the legal profession often struggle with public perception. Surveys consistently show that only about 22% of Americans consider lawyers trustworthy, while 34% view them with suspicion. As philosopher Sissela Bok observes, many people believe lawyers frequently compromise basic moral principles for personal or professional gain. This widespread distrust creates an environment in which political leaders, such as President Donald Trump, find it easy to criticize lawyers and law firms without significant public backlash.
However, the events surrounding Trump’s Executive Order targeting the prestigious law firm Perkins Coie illustrate the indispensable role lawyers play in upholding democracy and the rule of law, and the dangers that arise when executive power is used to retaliate against legal advocacy.
The Attack on Perkins Coie and Judicial Response
On March 6, President Trump issued an Executive Order, “Addressing Risks from Perkins Coie LLP,” which alleged that the firm had engaged in “dishonest and dangerous activity.” Among other accusations, the order cited Perkins Coie’s representation of Hillary Clinton and its alleged role in the creation of the “Steele dossier.” Trump’s order suspended the security clearances of Perkins Coie lawyers and terminated any federal contracts with the firm.
Perkins Coie promptly sued, arguing that the order was unconstitutional, an effort not to regulate lawful conduct, but to punish the firm for representing clients and causes the president found objectionable. U.S. District Judge Beryl Howell quickly and decisively ruled in the firm’s favor, issuing a summary judgment. In doing so, Howell delivered a ringing defense of the legal profession and a stern warning about the abuse of presidential authority.
Judge Howell noted that no American president had ever before issued an order explicitly targeting a law firm for adverse actions by executive agencies based on its advocacy work. She likened Trump’s actions to a “cringeworthy twist” on Shakespeare’s infamous line, “The first thing we do, let’s kill all the lawyers,” warning that Trump’s approach sought to “kill all the lawyers I don’t like.”
In her ruling, Howell emphasized that the Executive Order violated multiple constitutional protections: the First Amendment right to free speech, the Fifth Amendment right to due process, the Sixth Amendment right to counsel, and the guarantee of equal protection under the law. Her decision reaffirmed that the Constitution demands “tolerance not coercion” when dealing with dissenting or unpopular speech and advocacy.
Lawyers as Guardians of Democracy
The events highlight a fundamental truth: despite public skepticism, lawyers are essential to maintaining democracy. Alexis de Tocqueville, the 19th century French observer of American society, recognized this fact. He argued that lawyers served as a stabilizing force against the “revolutionary spirit” and the “unreflecting passions of the multitude.” Their devotion to procedure, formality, and reason made them natural allies of the judiciary and the executive in maintaining order and protecting rights.
Tocqueville warned that any executive seeking to diminish the influence of lawyers in a democracy would be making a grave mistake. This warning seems particularly prescient in light of Judge Howell’s findings. Executive overreach aimed at silencing legal professionals threatens not just the lawyers themselves, but the very foundation of the constitutional system.
Similarly, Louis Brandeis, later a Justice of the Supreme Court argued that lawyers have a duty not just to their clients, but to the broader society. They are citizens first, entrusted with special skills and knowledge, and obligated to use those abilities to safeguard democracy.
Limits on Presidential Power
The American constitutional system deliberately imposes limits on presidential power to prevent precisely the kind of abuses seen in the Perkins Coie case. Article II of the Constitution establishes the presidency, but it does not grant unchecked authority. The Bill of Rights, particularly the First, Fifth, and Sixth Amendments, restricts the government’s ability to penalize political expression, interfere with access to counsel, or punish individuals and entities without due process.
Supreme Court precedent reinforces these principles. In cases such as Youngstown Sheet & Tube Co. v. Sawyer (1952), the Court made clear that the president does not have authority to seize private entities or unilaterally punish them absent explicit congressional authorization. Justice Jackson’s famous concurring opinion in Youngstown described a three tiered framework for evaluating presidential power, emphasizing that the president’s authority is at its “lowest ebb” when acting contrary to the will of Congress, or as in Trump’s case, contrary to constitutional principles.
Similarly, Watkins v. United States (1957) affirmed that government investigations and actions must respect individual rights and cannot be used to punish political dissent. In z Legal Services Corp. v. Velazque(2001), the Court ruled that government funding restrictions could not silence lawyers representing indigent clients, reinforcing the principle that lawyers must be able to advocate freely, even when their arguments challenge government policies.
Conclusion: Why Standing Up for Lawyers Matters
As Judge Howell emphasized, the independence of lawyers is vital to the American legal system and democratic society. Attempts by political leaders to punish lawyers for their advocacy work threaten not only the individual lawyers and their clients, but the broader public interest in fair representation, open debate, and the rule of law.
Even if lawyers are not universally beloved, their role as defenders of individual rights, procedural fairness, and constitutional principles makes them indispensable. As political polarization intensifies and the temptation for those in power to silence dissent grows stronger, Americans must remember that the fate of lawyers is intertwined with the fate of democracy itself.
We do not have to love lawyers to recognize that we need them, and that in standing up for them, we stand up for ourselves.
Finally, quoting from the Cummings article referenced below:
Precisely because lawyers have been a central part of America’s democracy problem, the legal profession must be part of any solution… Yet while legal reforms are necessary, they can only be part of the solution to democratic backsliding. Indeed, one of the most striking lessons from the Trump era is the degree to which democracy rests not just on law but on a scaffolding of norms that surround and buttress it: norms like presidents divesting themselves of financial holdings that present conflicts of interests, accepting adverse legal rulings and not denigrating the judges who issue them, supporting checks and balances, and respecting the press. That these norms matter profoundly is underscored by just how easily they can be shattered. Thinking about how to protect and rebuild these norms is the crucial collective challenge of our times. In rising to meet that challenge, bar leaders must be willing to engage more directly with popular movements, not just for lawyer accountability but for broader democratic viability. Only by strongly aligning the profession with pro-democracy forces can the profession restore confidence in its role as democratic defender.
References:
Austin Sarat, Judge Delivers a Civics Lesson About the Role of Lawyers and the Limits of Presidential Power, VERDICT (May 7, 2025), In this article Amherst professor Austin Sarat examines the public distrust of lawyers in the United States and the recent political attacks on the law firm Perkins Coie by President Trump, focusing on the legal and constitutional implications of those actions.
Scott L. Cummings, Lawyers in Backsliding Democracy, 112 Calif. L. Rev. 513 (202 ” While this Article endorses bar action against Trump lawyer misconduct, its analysis of that misconduct is placed in service of a larger agenda: to better understand the legal profession’s fraught relationship with American democracy in this particular moment of “peril.”[4). It explores the role of lawyers in democratic backsliding, the degradation of democratic institutions and practices using law rather than violence. “The Article’s central aim is to set an agenda and outline an approach to studying the professional paradox at the center of backsliding. ”
Lawyers Defending American Democracy (LDAD).
is to galvanize lawyers to defend the rule of law in the face of an unprecedented threat to American democracy. Our work is not political or partisan.
is to galvanize lawyers to defend the rule of law in the face of an unprecedented threat to American democracy. Our work is not political or partisan.
is to galvanize lawyers to defend the rule of law in the face of an unprecedented threat to American democracy. Our work is not political or partisan.