The country’s faith in these institutions, including our elections and our civil and criminal justice systems has eroded. How far has that erosion of faith gone? Can it be stopped? What is the role of lawyers in protecting the Rule of Law?
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Every day, we hear that the Rule of Law is under attack. The institutions that support our democracy are maligned by public figures, elected officials and lawyers. The country’s faith in these institutions, including our elections and our civil and criminal justice systems has eroded. How far has that erosion of faith gone? Can it be stopped? What is the role of lawyers in protecting the Rule of Law?
First, what do we mean when we refer to the Rule of Law? The U.S. courts’ website defines the Rule of Law as “a principle under which all persons, institutions, and entities are accountable to laws that are:
- Publicly promulgated;
- Equally enforced;
- Independently adjudicated; and
- Consistent with international human rights principles.
The World Justice Project (WJP) has created a Rule of Law index, that annually measures adherence to, and promotion of, the Rule of Law in 132 countries, using eight factors and 44 sub-factors. (The United States is ranked 26th on the scale.) The eight over-arching factors are “constraints on government powers, absence of corruption, open government, fundamental rights, order and security, regulatory enforcement, civil justice, and criminal justice.” The sub-factors describe the elements of what each factor must provide to promote the goals of justice. For instance, the sub-factors on which a civil justice system is measured are affordability and accessibility, promptness, freedom from government influence, effective enforcement, available alternative dispute resolutions, and freedom from discrimination and corruption. As the WJP states, the Rule of Law “is the foundation for communities of justice, opportunity, and peace—underpinning development, accountable government, and respect for fundamental rights.” The WJP also found that, “for the sixth year in a row, the Rule of Law has declined in most countries.” The American Bar Association and the New York City Bar Associations have both created task forces to address threats to American democracy, respectively, the ABA Task Force on American Democracy and the NYCBA Task Force on the Rule of Law.
In a presentation prepared by the ABA Task force, the following facts were shared:
In a recent Pew study, 51% of Americans said they are dissatisfied with how democracy is working and 46% said they are open to other forms of government, including rule by a strong leader.
- Less than one third of millennials consider it essential to live in a democracy.
- According to a 2022 Annenberg Constitution Day Civics Survey, 25% of U.S. adults can name only one of the three branches of government and more than 20% can’t name any branch of government.
- Against all available evidence, many Americans believe the 2020 election was stolen and question the integrity of our election systems. Some even say they are prepared to resort to violence if their desired candidate does not win the next election.
These findings are grim and reflect a confluence of circumstances that we have all witnessed with growing dismay. Since the 2016 presidential election, we have seen a normalization of lying about known facts, the spreading of conspiracy theories, and the proliferation of violence and threats against judges and other public figures, from poll workers to district attorneys. In response to these and other issues, the ABA Task Force has formulated the following goals:
- Endeavor to restore voter confidence in the integrity of our elections.
- Work to assure the nonpartisan administration of elections.
- Inspire and mobilize America’s uniquely positioned and duty-bound legal profession to actively support and defend American democracy, the Constitution, and Rule of Law.
- Ensure that lawyers are educated and held accountable to their professional obligations to support and defend the Constitution, the Rule of Law and our democracy.
- Leverage the legal profession to educate the public on the reasons for, and the importance of, democracy and the Rule of Law.
- Push to ensure the safety of election workers and officials and others responsible for the administration of elections.
- Urge civil political discourse and debate, denounce and dis-incentivize the extremist and violent political rhetoric in American politics, and seek to prevent the use of violence to replace democratic practices or to influence or overturn elections.
- Encourage citizen participation in democracy and the democratic process.
- Explore and recommend democratic solutions to the anti-democratic weaknesses in our election processes.
- Assess the role cyberspace can play in either promoting or corrupting the American democratic process.
Goals three, four, and five focus on the duty of lawyers to uphold and protect democracy and the Rule of Law. Yet, many of the threats to democracy have been the brainchildren of lawyers. The attack on the legitimacy of the 2020 presidential election, the false electors scheme and the nonmeritorious claim that the vice president could decide the election were all promulgated by lawyers, many of whom have now been sanctioned by the courts, indicted and awaiting discipline by bar regulators.
In King v. Whitmer, 556 F. Supp. 3d 680 (E.D. Mich. 2023) the district court, pursuant to F.R.C.P. Rule 11, imposed personal monetary sanctions against Trump lawyers for false statements made inside and outside the courtroom. The U.S. Court of Appeals for the Sixth Circuit upheld the sanctions, which included the personal payment of more than $150,000. See King v. Whitmer, 71 F.4th 511 (6th Cir. 2023). However, in its opinion, the court rejected sanctions for statements made outside the courtroom, on First Amendment grounds. The court held that “Rule 11 cannot proscribe conduct protected by the First Amendment.”
Disciplinary cases against attorneys John Eastman, Sydney Powell and Rudolph Giuliani are still moving forward, years after the fact. (Rudolph Giuliani was temporarily suspended in New York in 2021). Attorneys Sidney Powell, Kenneth Chesebro and Jenna Ellis have all pleaded guilty to misdemeanors for their attempted interference in the election in Georgia. Of all the 60 cases that were brought attacking the legitimacy of the presidential election, none prevailed and many were soundly criticized. See e.g., Donald J. Trump for President v. Boockvar, 502 F. Supp. 3d 899, 910 – 11) (M.D. Pa. 2020) (Referring to the plaintiff’s equal protection theory as a “Frankenstein’s Monster, … haphazardly stitched together … in an attempt to avoid controlling precedent.”).
Yet the arguments that were made by these lawyers live on. Millions of Americans believe the last presidential election was stolen, despite a complete lack of evidence. The corollary to this belief is that the judges in these cases were either wrong or corrupt. These beliefs also led to a violent attempt to overthrow the government on Jan. 6, 2020.
Where will we be without the Rule of Law? How will we practice if precedent loses its potency and facts are not important? How will we defend our clients if what happens in the courtroom is less important than what occurs on social media? How will prosecutors be influenced by the danger they face when investigating and prosecuting popular political figures? How will judges be able to rule impartially when they are being subject to mob intimidation?
When the citizens of our country are no longer in agreement about whether democracy is the best form of government, we cannot ignore the danger. We can no longer measure our conduct by whether it violates Rule 11 or the Rules of Professional Conduct. These are minimum standards and the minimum will not suffice. The ABA is correct: we are both duty-bound and uniquely equipped to actively protect our democracy. We are a respected and educated profession, that carries with it a commitment to honesty. It is time to rise above our partisan differences and unite to protect the ideal that we all believe in: that the Rule of Law is the foundation of a just society. It is up to each one of us to act to protect that foundation upon which our freedom, our happiness, and our profession is built.
Ellen C. Brotman, of Brotman Law in Philadelphia, represents individuals before licensing boards, providing effective, caring and efficient assistance. She has served as an assistant federal defender in Philadelphia and practiced in small, medium and large firms with a focus on criminal defense, appellate advocacy, professional responsibility and ethics.
Reprinted with permission from the March 1, 2024 issue of The Legal Intelligencer. © 2023 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or [email protected].