Reprint: Legal Ethics and the Constitution

 

Justice Department lawyers work for justice and the Constitution – not the White House

The U.S. flag flies above Department of Justice headquarters on Jan. 20, 2024, in Washington. J. David Ake/Getty Images

Cassandra Burke Robertson, Case Western Reserve University

In the 1970s, President Richard Nixon tried to fire the Department of Justice prosecutor leading an investigation into the president’s involvement in wiretapping the Democratic National Committee’s headquarters.

Since then, the DOJ has generally been run as an impartial law enforcement agency, separated from the executive office and partisan politics.

Those guardrails are now being severely tested under the Trump administration.

In February 2025, seven DOJ attorneys resigned, rather than follow orders from Attorney General Pam Bondi to dismiss corruption charges against New York Mayor Eric Adams. Adams was indicted in September 2024, during the Biden administration, for alleged bribery and campaign finance violations.

One DOJ prosecutor, Hagan Scotten, wrote in his Feb. 15 resignation letter that while he held no negative views of the Trump administration, he believed the dismissal request violated DOJ’s ethical standards.

Among more than a dozen DOJ attorneys who have recently been terminated, the DOJ fired Erez Reuveni, acting deputy chief of the department’s Office of Immigration Litigation, on April 15. Reuveni lost his job for speaking honestly to the court about the facts of an immigration case, instead of following political directives from Bondi and other superiors.

Reuveni was terminated for acknowledging in court on April 14 that the Department of Homeland Security had made an “administrative error” in deporting Kilmar Abrego Garcia to El Salvador, against court orders. DOJ leadership placed Reuveni on leave the very next day.

Bondi defended the decision, arguing that Reuveni had failed to “vigorously advocate” for the administration’s position.

I’m a legal ethics scholar, and I know that as more DOJ lawyers face choices between following political directives and upholding their profession’s ethical standards, they confront a critical question: To whom do they ultimately owe their loyalty?

President Donald Trump speaks before Pam Bondi is sworn in as attorney general at the White House on Feb. 5, 2025. Andrew Harnik/Getty Images

Identifying the real client

All attorneys have core ethical obligations, including loyalty to clients, confidentiality and honesty to the courts. DOJ lawyers have additional professional obligations: They have a duty to seek justice, rather than merely win cases, as well as to protect constitutional rights even when inconvenient.

Excerpt: Meditations on the Wise Use of Power

 From Rebecca Solnit's marvelous blog, Meditations in an Emergency:

 Here's another thing about power; the power the Trump Administration has is largely what we give it. They often cave when it is not given or when it's taken away by the courts. And they're spending power, not tending it, by breaking alliances, support, relationships, treaties. their threats to seize Greenland. They may desire to make the US weaker, because they may think a weakened country with undermined institutions may be easier to dominate, but as the heads of government they're also making themselves weaker. The administration has sabotaged relationships with our neighbors, Canada and Mexico, and with NATO and EU allies. So they're losing the power of alliances abroad, along with the power of public support at home.

 They seem to have miscalculated--so far as I can tell by assuming their power is boundless, to be endlessly spent, never built up and protected, as political leaders normally do. Take the threats to seize Greenland, which is an autonomous territory of Denmark, which in turn is part of the European Union and NATO, so that any invasion of the indigenous-majority island would be an attack on these powerful alliances. The loud threats have infuriated and alienated Greenlandic and Danish and many other people around the the world. The stunt whereby the administration decided to send the vice president's wife to Greenland for what was clearly a publicity campaign pretending to be a little holiday backfired badly. 

 Usha Vance was going to attend a dogsled race, show herself about, and then the vice president decided to join her. Greenlanders made it so clear they were so unwelcome that they limited their tour to a few hours at the isolated US military base for a pathetic photo op. It was a fool's errand and they showed their weakness by backing down from something that was always a dumb idea and maybe one that shows they lack intelligence in the ordinary sense of being smart and the specific sense of having good analysis of the political situation and the consequences of given actions. Or maybe they think their power is irresistible, but a small indigenous population resisted it effectively. They certainly failed, again, to anticipate both public reaction to their conduct and the fact that the public has power too. 

 Elon Musk has helpfully just proven how resistible power is, or the folly of confusing mountains of money with outright power. He had an apparent meltdown last night over his failure to buy the Wisconsin supreme court election, in which his candidate didn't just lose but lost in a landslide. And earlier he choked up on Fox News talking about the protests against Tesla and the impact it's having on the company's valuation. Both these things demonstrate the limits of his power and the scope of our power. The Tesla protests are working. People have the power. 

Rebecca Solnit on "It Doesn't End Well For Them"

 I've recently begun following essayist Rebecca Solnit. She's a brilliant writer, full of fire and (com)passion. Here's a recent sample of her work:

No One Knows How This Will End (But I Do Not Think It Will End Well for Them)

These three horsemen of the MAGA-tech-bro apocalypse are in the position of penthouse dwellers who think their top floor apartment doesn't rest on all the floors underneath, or so it looks to me as they rush about wrecking things with an apparent conviction that they're immune to the impact, that they have a monopoly on power, that their power is not merely part of larger systems, that they have defeated everything including cause and effect. Trump just tweeted a quote from Napoleon Bonaparte, "He who saves his country violates no law," which is maybe supposed to justify the attacks on the Constitution and the outrageously illegal actions we've seen since the January 27th attempt to seize Congress's power of the purse.

But Napoleon didn't end his career as an emperor. He ended it as a prisoner of the British on a small volcanic island more than a thousand miles off the coast of southern Africa. I don't know where Trump, Musk, and Vance's story ends, but I know it doesn't end with them in power, and I don't think it will end particularly well for them, though my main concern--and yours, I presume--is trying to prevent damage along the way. And I'm convinced that if we take action, we get to write some of the chapters and maybe revise or erase some of what they're trying to impose.

(You can sign up at the bottom of her Home page.)

In Hopeful Times: Robert Reich on Optimism

 

At the beginning of Trump 1.0, I began a series entitled "In Troubled Times." With the onset of the war in Ukraine (aka The War of Russian Aggression), I shifted to "In Times of War." Today, Substackian Robert Reich offers reasons for cautious optimism. Let's feed that hope!

This is a very brief summary. Click on the link to read the whole thing and to subscribe.

Ten reasons for modest optimism

Friends, If you are experiencing rage and despair about what is happening in America and the world right now because of the Trump-Vance-Musk regime, you are hardly alone. A groundswell of opposition is growing — not as loud and boisterous as the resistance to Tump 1.0, but just as, if not more, committed to ending the scourge.

1.Boycotts are taking hold.

2. International resistance is rising.
3. Independent and alternative media are growing.
4. Musk’s popularity is plunging.
5. Musk’s Doge is losing credibility.
6. The federal courts are hitting back.
7. Demonstrations are on the rise.
8. Stock and bond markets are trembling.
9. Trump is overreaching — pretending to be “king” and abandoning Ukraine for Putin.
10. The Trump-Vance-Musk “shock and awe” plan is faltering.

In all these ways and for all of these reasons, the regime’s efforts to overwhelm us are failing.

Make no mistake: Trump, Vance, and Musk continue to be an indiscriminate wrecking ball that has already caused major destruction and will continue to weaken and isolate America. But their takeover has been slowed.

Their plan was based on doing so much, so fast that the rest of us would give in to negativity and despair. They want a dictatorship built on hopelessness and fear.

That may have been the case initially, but we can take courage from the green shoots of rebellion now appearing across America and the world.

As several of you have pointed out, successful resistance movements maintain hope and a positive vision of the future, no matter how dark the present.

Shakespeare on Tyrants: Richard II and Drumpf

 

What Shakespeare revealed about the chaotic reign of Richard III – and why the play still resonates in the age of Donald Trump

In this circa 1754 illustration, two women scold Richard III in Shakespeare’s play. Universal History Archive/Getty Images)

by David Sterling Brown, Trinity College

Written around 1592, William Shakespeare’s play “Richard III” follows the reign of England’s infamous monarch and charts the path of a charismatic, cunning figure.

As Shakespeare depicts the king’s reign from June 1483 to August 1485, Richard III’s kingdom was wrought with chaos, confusion and corruption that fueled civil conflict in England.

As a scholar of Shakespeare, I first thought about Richard III and his similarities with Donald Trump after the latter’s debate with President Joe Biden in June 2024. Those similarities – and Shakespeare’s depictions – became even clearer after Trump’s election in November 2024.

Shakespeare’s play highlights the flawed character of a man who wanted to be, in modern terms, a dictator, someone who could do whatever he pleased without any consequences.

In his 1964 essay, “Why I Stopped Hating Shakespeare,” writer James Baldwin concluded that Shakespeare found poetry “in the lives of people” by knowing “that whatever was happening to anyone was happening to him.”

“It is said that Shakespeare’s time was easier than ours, but I doubt it,” Baldwin wrote. “No time can be easy if one is living through it.”

An undated portrait of Richard III. Universal History Archive/Getty Images

A villain?

In Act 2, Scene 3 of Shakespeare’s play, a common citizen says Richard is “full of danger.”

“Woe to the land that’s govern’d by a child,” the citizen further warned.

Beyond hiring murderers to kill his own brother, Shakespeare’s Richard was keen on belittling and distancing himself from people whom he viewed as being not loyal or being in his way – including his wife, Anne.

To clear the way for him to marry his brother’s daughter – his niece Elizabeth – Richard spread what now would be called fake news. In the play, he tells his loyalists “to rumor it abroad that Anne, my wife, is very grievously sick” and “likely to die.”

Richard then poetically reveals her death: “Anne my wife hath bid this world goodnight.”

Yet, before her death, Anne has a sad realization: “Never yet one hour in Richard’s bed / Did I enjoy the golden dew of sleep.”

That sentiment is echoed by Richard’s mother, the Duchess of York, who regrets not strangling “damned” Richard while he was in her “accursed womb.”

As Shakespeare depicts him, Richard III was a self-centered political figure who first appears alone on stage, determined to prove himself a villain.

In Richard’s opening speech, he even says that in order to become king, he will manipulate his own brothers George, the Duke of Clarence, and King Edward IV, “in deadly hate, the one against the other.”

But as his villainous crimes mount up, Richard shares a rare moment of self-awareness: “But I am in / So far in blood that sin will pluck on sin.”

Shakespeare’s Richard III and Trump

GUEST BLOG: Sherwood Smith on Monarchy in Fantasy

What is it with fantasy stories and monarchies? Isn't there any other form of government?

Two words, power and privilege.

What’s not to like?

What’s not to hate?

Whatever those words evoke to us, it’s usually not boredom. Human beings are hierarchical. You take any group, no matter how determined they are to interact with sensitivity and equality, and a leader somehow emerges. That’s in situations that have the luxury of safety. In emergencies or danger, people turn desperately to anyone who can show them the way out, whether it’s by fighting or fleeing. The successful commander who becomes monarch is as old as history.

Monarchs make government personal, and most readers want stories about people more than they want stories about the function of politico-economic theory, for pretty much the same reason people at work gossip about the boss’s likes, dislikes, and private life. The doings of people in power are interesting, especially when they can impact you, but even when they won’t. Look at all
the celebrity chasers busily reporting on the often fatuous actions, opinions, marriages and breakups of our king-substitutes, actors.

We moderns seem to prefer stories about kings and queens from the days when monarchs were colorful figures in preference to today’s reclusive royalty who, wearing business suits like everyone else, appear only for photo ops and ribbon-snipping. The old kings had more power, but they also had to generate their own PR by looking like kings: when they traveled past you, with outriders and banner snapping and horses caparisoned to a fare-thee-well, you knew a king was passing.

[politics] Strategies for Reclaiming the Right to Choose

The New York Times recently published a piece by Kate Zernike, "The Long Road to Reclaim Abortion Rights." Because it's behind a paywall and the information is so important, I've summarized it here.

Abortion rights groups have mounted a multilevel legal and political attack aimed at blocking and reversing abortion bans in courts and at ballot boxes across the country. They have rolled out a wave of lawsuits in nearly a dozen states to hold off bans triggered by the court’s decision, with the promise of more suits to come. They are aiming to prove that provisions in state constitutions establish a right to abortion. They are also working to defeat ballot initiatives that would strip away a constitutional right to abortion and to pass those that would establish one, in states where abortion access is contingent on who controls the governor’s mansion or the state house.

Democratic-aligned groups are campaigning to reverse slim Republican majorities in some state legislatures and to elect abortion rights supporters to positions from county commissioner to state supreme court justices that can have influence over the enforcement of abortion restrictions.

The path ahead is slow and not at all certain. Polls show that Americans overwhelmingly say that the decision to have an abortion should be made by women and their doctors rather than state legislatures. But Republican-controlled state legislatures have passed hundreds of restrictions on abortion over the last decade, and legislative districts are heavily gerrymandered to protect Republican incumbents. Litigation in state courts will be decided by judges who in many cases have been appointed by anti-abortion governors.

Abortion rights groups say their cases offer a viable path forward to establish protections in states. Even in conservative states such as Oklahoma and Mississippi, they see an opportunity to overturn abortion bans and establish a constitutional backstop against further restriction. But in other places, the goal of the litigation is to at least temporarily restore or preserve abortion access, now that the court’s decision stands to make it illegal or effectively so in more than half the states, which include 33.5 million women of childbearing age.

In Louisiana, for example, though the state constitution expressly says there is no right to abortion, the legal challenge has allowed three clinics to continue serving women whose plans to end their pregnancies were thrown into disarray by the court’s decision.

By Friday, the groups had temporarily blocked bans from taking effect in Utah, Kentucky, Louisiana, and Florida; judges have set hearings over the next several weeks to consider permanent injunctions. But they lost bids to hold off bans in Ohio and Texas.

[politics] New California Laws Look to a Better Future

The California state legislature has been busy with a wide range of new laws on voting access, police reform, housing, single-use plastics, sexual assault, and more. 

Universal Vote By Mail

All active registered voters in California will automatically be mailed ballots in all future elections, beginning in 2022, AB37 by Assemblymember Marc Berman (D-Menlo Park).

Police Reform

AB490 prohibits the use of restraints that risk suffocating a suspect. Assemblymember Mike Gipson (D-Carson)

AB48 bars police from firing rubber projectiles and tear gas at protesters if the situation is not life-threatening.  Assemblymember Lorena Gonzalez (D-San Diego)

AB89 raises the minimum age to become a police officer to 21. Assemblymember Reggie Jones-Sawyer (D-Los Angeles) 

AB958, which allows departments to fire officers for joining a law-enforcement gang. Assemblymember Mike Gipson (D-Carson)

AB26 requires police officers to report when they see a colleague use excessive force. Officers who witness excessive force but don't intervene will face punishment. Assemblymember Chris Holden (D-Pasadena) 

SB16 makes public any records related to excessive force, unlawful searches and other misconduct. Sen. Nancy Skinner, (D-Berkeley) 

Criminal Justice 

SB81 by Skinner authorizes judges to give more weight to mitigating factors such as childhood trauma when considering sentencing enhancements.

Wiener's SB73 ends mandatory minimum sentences for drug-related crimes that are nonviolent.

"Stealthing" Ban

"Stealthing," the nonconsensual removal of a condom during sex, is now considered a form of sexual battery, and victims can sue for civil redress.  Assemblymember Cristina Garcia (D-Bell Gardens)

Spousal Rape 

[political rant] Right Wing Media, Disinformation, and the Pandemic

I don't often post political stuff here on my blog. My readers may remember the series of posts, "In Troubled Times," as I walked/crawled/screamed through my reactions to the unfolding events of the 2016 election. A more current version would be entitled, "In Perilous Times," and has been on my mind. To get the discussion started, here are some thoughts on how the right-wing media and conspiracy theorists spread disinformation that resulted in a much worse pandemic in the US.

From The New York Times 7/28 morning report:

Why is the U.S. enduring a far more severe virus outbreak than any other rich country?

There are multiple causes, but one of them is the size and strength of right-wing media organizations that frequently broadcast falsehoods. The result is confusion among many Americans about scientific facts that are widely accepted, across the political spectrum, in other countries.

Canada, Japan and much of Europe have no equivalent to Sinclair — whose local newscasts reach about 40 percent of Americans — or Fox News. Germany and France have widely read blogs that promote conspiracy theories. “But none of them have the reach and the funding of Fox or Sinclair,” Monika Pronczuk, a Times reporter based in Europe, told me.

Fox is particularly important, because it has also influenced President Trump’s response to the virus, which has been slower and less consistent than that of many other world leaders. “Trump repeatedly failed to act to tame the spread, even though that would have helped him politically,” The Washington Post’s Greg Sargent has written. The headline on Sargent’s opinion column is: “How Fox News may be destroying Trump’s re-election hopes.”

Another factor creating confusion: The lack of an aggressive response to virus misinformation from Facebook and YouTube. Judd Legum, author of the Popular Information newsletter, has identified some of this misinformation, and the two companies have responded by removing the posts he cited. But Legum told me he had pointed out only a small fraction of the false information, and the companies had done relatively little to remove it proactively.

Twitter took a slightly more aggressive step yesterday, putting temporary limits on the account of Donald Trump Jr. after he shared the false Breitbart video.

In Troubled Times: Rumors of War

World War II cast a long shadow, and my generation was born in the aftermath. Then the shadow burgeoned into a decades-long frenzy of terror of communism. The Soviet Union was the incarnation of evil, of course, and war was ever imminent. Not just any war, though, for the atomic genie had been released from its bottle. The world came perilously close on a number of occasions. In between crises, every international twitch was scrutinized, analyzed, and dissected. Meanwhile, we kids were practicing “duck and cover,” as if hiding under a school desk could protect us from a nuclear blast.

Presidents came and presidents went, and the threat of annihilation waxed and waned but never left us. We focused on smaller wars where we had the illusion we could actually change the world. As it turned out, all those protest marches against the Viet Nam War did make a difference in the end, although at the time it didn’t seem so. In retrospect, I believe the sense of powerlessness and insignificance caused as much damage to our confidence in the future as any military threat. Which is not to say that the threat of nuclear war was not real, but rather that my generation internalized it in a way that left us vulnerable to being triggered by other events.

Humans aren’t very good at estimating the relative danger of various things. We exaggerate some risks and minimize others. Some dangers frighten us out of all proportion to the odds of them happening to us. We casually ignore other things that are much more likely to injure or kill us. The possibility of war and its affect on us, personally and nationally and globally, is no exception. We panic or we shrug or we pretend or we drive our fears into our subconscious minds, where they erupt as irrational behavior or nightmares.

In Troubled Times: George Washington on Political Parties and the Abuse of Power

In light of the political events of recent times, I offer these words from George Washington's highly prescient Farewell Address.

United States 19th September 1796
Friends, & Fellow--Citizens.

I have already intimated to you the danger of Parties in the State, with particular reference to the founding of them on Geographical discriminations. Let me now take a more comprehensive view, & warn you in the most solemn manner against the baneful effects of the Spirit of Party, generally.

This Spirit, unfortunately, is inseperable from our nature, having its root in the strongest passions of the human Mind. It exists under different shapes in all Governments, more or less stifled, controuled, or repressed; but in those of the popular form it is seen in its greatest rankness and is truly their worst enemy.

The alternate domination of one faction over another, sharpened by the spirit of revenge natural to party dissention, which in different ages & countries has perpetrated the most horrid enormities, is itself a frightful despotism. But this leads at length to a more formal and permanent despotism. The disorders & miseries, which result, gradually incline the minds of men to seek security & repose in the absolute power of an Individual: and sooner or later the chief of some prevailing faction more able or more fortunate than his competitors, turns this disposition to the purposes of his own elevation, on the ruins of Public Liberty.

Without looking forward to an extremity of this kind (which nevertheless ought not to be entirely out of sight) the common & continual mischiefs of the spirit of Party are sufficient to make it the interest and the duty of a wise People to discourage and restrain it.

It serves always to distract the Public Councils and enfeeble the Public Administration. It agitates the Community with ill founded Jealousies and false alarms, kindles the animosity of one part against another, foments occasionally riot & insurrection. It opens the door to foreign influence & corruption, which find a facilitated access to the government itself through the channels of party passions. Thus the policy and the will of one country, are subjected to the policy and will of another.

There is an opinion that parties in free countries are useful checks upon the Administration of the Government and serve to keep alive the spirit of Liberty. This within certain limits is probably true--and in Governments of a Monarchical cast Patriotism may look with endulgence, if not with favour, upon the spirit of party. But in those of the popular character, in Governments purely elective, it is a spirit not to be encouraged. From their natural tendency, it is certain there will always be enough of that spirit for every salutary purpose. And there being constant danger of excess, the effort ought to be, by force of public opinion, to mitigate & assuage it. A fire not to be quenched; it demands a uniform vigilance to prevent its bursting into a flame, lest instead of warming it should consume.

In Troubled Times: Surviving Exhaustion

In previous posts in this series, I’ve written about emotional sobriety, feeling overwhelmed, and finding a personal sanctuary. Now I’d like to talk more about the concrete things we can do to keep our emotional and spiritual balance during the difficult, terrifying, and outrage-evoking recent months.

For me the first step is always admitting that what I have been doing isn’t working. I can get absorbed in one dreadful news story after the other, and with each round I lose more perspective and calm. My adrenaline levels get progressively higher. Sometimes – often! – it seems as if nothing else is happening in my life except reacting to yet another threat to the people, organizations, and principle that are important to me. Old wounds re-open; the ghosts of family tragedies (like the pogroms my father survived as a boy) re-awaken. I fear for my Jewish family and my queer daughters and sister and my trans daughter-in-law, for my black, Muslim, and Hispanic friends. I despair for the future of the entire planet. In other words, I need help.

Sometimes all that’s necessary is for me to admit that matters have gotten out of hand. Then I can scale back on my news consumption enough to think clearly what actions I would like to take. And especially what would be enough for the moment so that I can leave the topic and focus on other aspects of my life – my family, my writing, my local community, the beautiful redwood forest that cloaks the hills outside my windows. Playing classical music on my mother’s piano. Knitting hats for charities in poor areas of the country and world. Cuddling with the cats.

Recently I have noticed how those times of relative sanity come to a screeching halt. There are always new reasons – excuse me, Reasons. Like a hurricane or three. I’ve seen references to “outrage fatigue” but I suspect what is happening is outrage overlap. There isn’t sufficient time in between to return to balance and stay there, catching our breath, before something new and dreadful reels us in.

[political rant] I cannot keep up with Trump's sh*t

Let me get this straight. It's Friday, August 25 and:

• Trump pardoned convicted Arpaio
• Trump signed the transgender military ban
• Trump's close adviser (and Bannon ally) Seb Gorka is quitting
• Mueller  issued subpoenas for officials with ties to Manafort 
• North Korea just fired short-range missiles

Oh, and there's a hurricane bearing down on Texas (although it seems to be losing power and may be downgraded to a tropical storm...too bad the same cannot be said aboutTrump's atrocities)

What's Trump's response? A Tweet that says "Good luck" as he takes off for a vacation at Camp David, leaving the rest of us mortals to deal with the unfolding crises. Plural, many of his own making.

I am so appalled, there are no words.

You can read more details in the Washington Post article.