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| Pix credit here (Hogarth, the Bench 1758) |
One of the great taboos of contemporary discussion revolves around the narratives of courts and their role within the political system of this (or in variation any) liberal democratic republic. There are many excellent reasons, rooted in history, but also in the development of the normative bedrock on which the American Republic has been erected, for both the development of this narrative and its protection. Foremost among these untouchable narrative premises (again on which our cognitive cage of all things judicial are grounded) are notions of (1) judicial neutrality (bounded by the disciplinary power of appeal, the role of precedent, rules of statutory construction bounded at some level by text, the requirement for decisions reasoning, the customs of deep embedding within jurisprudential conversations, and the threat of impeachment or removal), of (2) limited powers (bounded by politically and constitutionally derived notions of jurisdiction), and of (3) a limited and rationalized framework from exercising a remedial authority.
That remedial authority, of course, has been evolving over the course of the last century and into this one. It has been moving from its centering in notions of post facto compensation of some sort (built into ideologies manifested in case or controversy limitations on bringing claims grounded in injury) and of the inherent limitations of the judicial power (grounded in history and tradition, and more recently around issues touching on separation of powers at the federal level) toward the sensibilities and broadening scope of remedial authority increasingly built into equitable remedies. By the end of the 20th century, the authority of courts to "do right" by infusing traditional forms of equity with new vigor and extending the scope equitable orders in time and place, courts increasingly bumped up against questions of the limits of remedial authority. And not just with respect to equity. Traditional notions of punitive damages, for example, have also been the subject of jurisprudential discussion. The development of a reinvigorated jurisprudence of official abuse of discretion (with a private sector analogue in breach of fiduciary duty), deploying at times bot the sensibilities of equity and its remedial palette continues into current times
There are many many reasons for this evolution. Some of it might be traced to the great social movements of the 20th century and the evolution of notions of equality and "right" with respect to identity issues. Some of it rooted in the relative efficiency of seeking remedy in courts rather than through the legislative or administrative authority of the political branches. Some of it focused--and now increasingly so--on the use of the courts against the state and its apparatus itself. The courts, generally, have been welcoming, and most social organs have acquiesced--perhaps reflecting evolving tastes for the practice of separation of powers in the US, and perhaps reflection willingness to judicialize disputes and conversations that had, in another age, been resolved within non political spheres, or which had focused energies on the political branches. The mountain of academic attention to the phenomenon, as well as (increasingly) academic sector advocacy around these (discerned) trends--and the construction of narratives of progress or threat built around them have occupied much space in those sectors in a way that might suggest that wit respect to courts, at least, political discussion has assumed a techno-bureaucratic and elite character which separates the debate "that counts" from the masses who are expected to receive the products of these debates and then exercise their (limited) franchise accordingly. That is fair, one can suppose, given the transformation of both governance and political tastes for popular involvement. But the opposite is also fair. The absence of any sort of popular discussion about the nature and extent of jurisdiction, equity, and its remedial palette, in this respect might be lamented in a Republic that is supposed to be popular--or it might suggest that, as in the 18th century, popular meant masses guided by those whose social (and now economic and technical) positions suggest a position of authority to lead and guide.
Nonetheless, while the focus might be on the judge, the lawyer plays a substantial role both in the evolution of judicial practice and in shaping the "fact bundles" through which this jurisprudence is developed. Lawyers have helped shaped the current culture and understanding of the judge and the judicial function. They have helped empower and enlarge the role of the courts not merely as sites for the resolution of private disputes, but also as sites for the articulation and resolution of political issues with respect to which the political branches may not be as helpful. Sometimes this requires action against the State; sometimes it requires actions in court to reconcieve law (text of common law/equity) in ways that serve social, cultural, political and other goals. In the process the scope and practice of politics has also been reshaped, and with it the role of lawyers and the understanding of what rule of law means, both with respect to "rule" and "law." (My earlier discussion Chroniclers in the Field of Cultural Production: Courts, Law and the Interpretive Process;Retaining Judicial Authority: A Preliminary Inquiry on the Dominion of Judges). Judges make and shape; lawyers facilitate; these shape their relationship with the political apparatus of the state and in the process embeds them within it as both legal and political actors. That suggests, in turn, obligation, duty, and constraint under law.
It comes as no surprise that the objects of all of this activity in the courts, especially officials in the executive branch and its organs, and of the lawyers that fuel them, have sometimes found the divergence of what it might prefer to be political issues into courts to be either an annoyance or a threat. The current administration is no exception. Yet the intensification of these efforts, and their success, in the 21st century, inevitably would invite push back. And so, in that spirit, it is also no surprise that President Trump has issued an Executive Order on 11 March, Ensuring the Enforcement of Federal Rule of Civil Procedure 65(c), one that represents what is likely to be the first salvo in this "conversation" about the exercise of equity remedies in the courts. What has most annoyed this Administration (like its predecessors to some extent) has been the increasing effective effort to induce lowest level courts considering an issue within their jurisdiction to issue equitable permanent or provisional) with nationwide effect. The counter thrust by the Trump administration is, as a function of their level of annoyance, fairly mild--to insist that such injunctive orders include security equal to the full costs of potential damage to the State.
That requires application of Federal Rules of Civil Procedure 65( c) cover the full amount of potential injury to the state:
(c) SECURITY. The court may issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained. The United States, its officers, and its agencies are not required to give security.
Of course, the Administration means to push the courts to focus on the potential costs to the State as they determine the extent to which they will issue injunctions and restraining orders under FRCP 65; and they may desire to use Mr. Trump's Memorandum as the basis for forcing situations that can be used to take refusals to require giving full and adequate security as a means of testing the limits of the proper exercise of judicial discretion under FRCP 65 (and also FRCP 65.1 on actions against security providers). The issues are not entirely hypothetical. There is caselaw, or at least discussion (however authoritative one wants to make it) in which judges have argued that it is within their discretion to require a security equal to no money.
[t]he law is clear that a federal district court has broad discretion to set a bond amount as the court sees fit and may waive a security requirement altogether as Judge Vorhees did here. Pashby v. Delia, 709 F.3d 307, 332 (4th Cir. 2013)(citation omitted); see also Aoude v. Mobil Oil Corp., 862 F.2d 890, 896 (1st Cir. 1988)("posting of a bond is not a jurisdictional prerequisite to the validity of a preliminary injunction"); Clarkson Co, v. Shaheen, 544 F.2d 624, 632 (2nd Cir. 1976)("[B]ecause, under Fed. R. Civ. P. 65, the amount of any bond to be given upon the issuance of a preliminary injunction rests within the sound discretion of the trial court, the district court may dispense with the filing of a bond." (citations omitted). (Bolier & Co., LLC v. Decca Furniture (USA), Inc., 2015 NCBC 52; cited in Something That You Might Not Have Known About Injunctions (JD Supra).
Here the equity power of the courts meets the discretionary power of the judge in determining the equities of compliance with rules limiting the extent of equity remedial power. Whatever happens, it is clear that this is another issue that litigants will have to contend with as they choose when and whether to take their disputes with the Trump administration to the courts, the streets, the States, or Congress. The object, of course, is to make the "real costs" of litigation more transparent and to shift that cost, or the risk of incurring that cost, more fully onto those who seek injunctive relief or restraining orders.The effect may be to reduce the willingness of litigants to seek these orders or perhaps to seek these orders with nationwide effect. For the political classes the question is whether or to what extent such actions are to be encouraged or discouraged when the object of the litigation is the state itself.
Nonetheless, the real object of this effort may not be primarily the litigants but the judicial system itself --lawyers and judges--and their jurisprudence and practice with respect to FRCP 65 injunctions and restraining orders. In his 6 March 2025 "Fact Sheet: President Donald J. Trump Ensures the Enforcement of Federal Rule of Civil Procedure 65(c)" the President made this clear in suggesting the rationale and approach that is carried forward to the 11 March 2025 Memorandum. The three rationales: (1) ensuring accountability in federal courts (2) ensuring government serves the American people; and (3) ensuring accountability clarify the nature of the objectives of which these actions forms a part.
With respect to accountability, the "Fact Sheet" focuses on the determination of an accurate assessment of financial harm borne by the State in the context of injunctive or restraining order relief. Here the issues of good faith and the methodologies used to calculate injury will be at issue. The object is to increase the costs of such litigation to reduce the potential for what the State might view as frivolous claims. The larger issue, of course, is whether the State can be said to suffer financial harm in such cases. With respect to accountability, the focus turns directly to judges, and indirectly to lawyers. "Unelected district judges have issued sweeping injunctions beyond their authority, inserting themselves into executive policymaking and stalling policies voters supported. Activist groups file meritless suits for fundraising and political gain, facing no consequences when they lose, while taxpayers bear the costs and delays." (Fact Sheet:).
With respect to judges the claim focuses on abuse of discretion and separation of powers--but mostly abuse of discretion that creates a separation of powers issue. With respect to lawyers, the issue turns on the ethics of representation where the lawyer might or ought to know that the claim is frivolous. This, in turn, enlarges an much older debate about the ethical obligations of lawyers to represent and their duty (if any) to effectively avoid making frivolous claims. The issue, though has tended to turn on intent and a wide margin of error has been permitted (Cf., Fact Sheet: President Donald J. Trump Addresses Risks from Perkins Coie LLP). But the size of that margin of error and the extent of the due diligence obligations of lawyers before they take on a case that might be frivolous may be in the cross hairs of this policy. It is possible to the development of new rules of facilitation that is emerging in transnational law might find a home in this new regulatory space. Whatever the source, however, the risk of representation will likely increase, and with it the greater the likelihood of substantially enhanced due diligence requirements--without for the moment any safe harbor.
The last targets judges--and the jurisprudence of the extent of the judiciary's equity powers: "Multiple Supreme Court justices have recently warned that “single district-court judges” acting outside their judicial power are “abusing” the power entrusted to them." (Fact Sheet). Again the two issues align--aone, buse of discretion (here the allusion to incompetent judges in the (Fact Sheet); two, the constitutional limits of the judiciary's equity powers. The former, in normal curse, might hint at a much more aggressive use of the impeachment power (with pressure for the judiciary to better police its own house). These issues then touch on judicial independence and its limits in ways that have not been discussed for a very long time. The later brings back a discussion about the scope of equity power that had last been contentiously debated during the era of judicial oversight of school integration cases (e.g., Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 30–31 (1971); Milliken v. Bradley, 418 U.S. 717, 744 (1974); Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424, 434–36 (1976)) but also in play in cases involving other areas, for example elections: Race, "The Race," and the Republic: Re-conceiving Judicial Authority After Bush v. Gore). Here it is possible that new context will breath new life into old cases; or that old cases will be the springboard for some quite different jurisprudence. The safer course would be to transpose emerging abuse of discretion jurisprudence from the administrative state to the judiciary--but such a transposition would harm the narrative of the judicial power as sui generis. And always, the lawyer in the middle.
These efforts will not go unchallenged. In addition to the expected litigation, the American Bar Association has issued several statements advancing their own view of the nature of the judicial power, the character of the law disputes about which the courts oversee, and the role of the lawyer. See, e.g., The ABA supports the rule of law (10 February 2025); and The ABA rejects efforts to undermine the courts and the legal profession (3 March 2025). The legalization of politics, and the judicialization of political disputes again advances its forms and characteristics in this new era (see further: "With the rarest of exceptions": Statement of the Association of American Law Schools on Executive Branch Compliance With Court Orders and Text of ABA Statement "The ABA Supports the Rule of Law").
The text of Ensuring the Enforcement of Federal Rule of Civil Procedure 65(c), Fact Sheet: President Donald J. Trump Ensures the Enforcement of Federal Rule of Civil Procedure 65(c)", and Fact Sheet: President Donald J. Trump Addresses Risks from Perkins Coie LLP; The ABA supports the rule of law (10 February 2025); and The ABA rejects efforts to undermine the courts and the legal profession (3 March 2025) follow below.
MEMORANDUM FOR THE HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES
Subject: Ensuring the Enforcement of Federal Rule of Civil Procedure 65(c)
In recent weeks, activist organizations fueled by hundreds of millions of dollars in donations and sometimes even Government grants have obtained sweeping injunctions far beyond the scope of relief contemplated by the Federal Rules of Civil Procedure, functionally inserting themselves into the executive policy making process and therefore undermining the democratic process.
This anti-democratic takeover is orchestrated by forum-shopping organizations that repeatedly bring meritless suits, used for fundraising and political grandstanding, without any repercussions when they fail. Taxpayers are forced not only to cover the costs of their antics when funding and hiring decisions are enjoined, but must needlessly wait for Government policies they voted for. Moreover, this situation results in the Department of Justice, the Nation’s chief law enforcement agency, dedicating substantial resources to fighting frivolous suits instead of defending public safety.
The effective administration of justice in the Federal courts depends on mechanisms that deter frivolous litigation, protect parties from unwarranted costs, and streamline judicial processes. One key mechanism is Federal Rule of Civil Procedure 65(c) (Rule 65(c)), which mandates that a party seeking a preliminary injunction or temporary restraining order (injunction) provide security in an amount that the court considers proper to cover potential costs and damages to the enjoined or restrained party if the injunction is wrongly issued. Consistent enforcement of this rule is critical to ensuring that taxpayers do not foot the bill for costs or damages caused by wrongly issued preliminary relief by activist judges and to achieving the effective administration of justice.
Therefore, it is the policy of the United States to demand that parties seeking injunctions against the Federal Government must cover the costs and damages incurred if the Government is ultimately found to have been wrongfully enjoined or restrained. Federal courts should hold litigants accountable for their misrepresentations and ill-granted injunctions.
Consistent with applicable law, the heads of executive departments and agencies (agencies), in consultation with the Attorney General, are directed to ensure that their respective agencies properly request under Rule 65(c) that Federal district courts require plaintiffs to post security equal to the Federal Government’s potential costs and damages from a wrongly issued injunction. The scope of this directive covers all lawsuits filed against the Federal Government seeking an injunction where agencies can show expected monetary damages or costs from the requested preliminary relief, unless extraordinary circumstances justify an exception.
In requests for security under Rule 65(c), agencies shall include, among other things, that:
(a) Rule 65(c) mandates the court to require, in all applicable cases, that a movant for an injunction post security in an amount that the court considers proper to cover potential costs and damages to the enjoined or restrained party;
(b) the security amount the agency is requesting is based on a reasoned assessment of the potential harm to the enjoined or restrained party; and
(c) failure of the party that moved for preliminary relief to comply with Rule 65(c) results in denial or dissolution of the requested injunctive relief.
This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
DONALD J. TRUMP
* * *
ENSURING ACCOUNTABILITY IN FEDERAL COURTS: Today, President Donald J. Trump signed a memorandum directing federal agencies to enforce a rule mandating financial guarantees from parties requesting injunctions. This ensures coverage of potential costs or losses if the court later deems an injunction wrongly issued.
- The memorandum instructs agency heads, in consultation with the
Attorney General, to request under Federal Rule of Civil Procedure 65(c)
that federal courts require plaintiffs post security equal to the
federal government’s potential costs and damages from a wrongly issued
preliminary injunction or temporary restraining order.
- Security refers to a financial guarantee compensating the government for losses if an injunction is later found unjustified.
- This applies to all lawsuits seeking preliminary injunctions or temporary restraining orders where the government can demonstrate monetary harm from the requested relief.
- Agencies must justify security amounts based on reasoned assessments of harm, ensuring courts deny or dissolve injunctions if plaintiffs fail to pay up, absent good cause.
STOPPING JUDICIAL OVERREACH AND FRIVOLOUS LAWSUITS: By issuing this memorandum, President Trump is ensuring the democratic process remains intact by curbing activist judges and holding litigants accountable.
- Unelected district judges have issued sweeping injunctions beyond their authority, inserting themselves into executive policymaking and stalling policies voters supported.
- Activist groups file meritless suits for fundraising and political gain, facing no consequences when they lose, while taxpayers bear the costs and delays.
- The Justice Department is forced to divert resources from public safety to fight these frivolous cases, weakening effective governance.
- Enforcing Rule 65(c) deters such litigation by holding plaintiffs accountable for costs and damages if their injunctions are baseless, protecting taxpayer funds and judicial integrity.
STRENGTHENING AMERICA’S JUDICIAL SYSTEM: President Trump is committed to protecting our democracy, challenging judicial overreach, and ensuring the rule of law is upheld.
- Injunctions can cost taxpayers millions or even billions of dollars, especially when they mandate continued funding.
- President Trump appointed high-performing “superstar” judges according to a respected study. Trump’s judges occupied 9 of the top 11 spots for productivity, and 9 of the top 10 spots for influence.
- President Trump’s judges are also rated the least partisan.
- Multiple Supreme Court justices have recently warned that “single district-court judges” acting outside their judicial power are “abusing” the power entrusted to them.
* * *
STOPPING ABUSES THAT UNDERMINE THE NATION: Today, President Donald J. Trump signed an Executive Order to suspend security clearances held by individuals at Perkins Coie LLP, pending a review of whether their access to sensitive information is consistent with the national interest.
- Security clearances held by Perkins Coie LLP employees will be
immediately suspended, pending a review of whether their access to
sensitive information is consistent with the national interest.
- The Federal Government will halt all material and services, including sensitive compartmented information facility (SCIF) access provided to Perkins Coie LLP and restrict its employees’ access to government buildings.
- Federal Agencies will also refrain from hiring Perkins Coie LLP employees unless specifically authorized.
- To ensure taxpayer dollars no longer go to contractors whose
earnings subsidize partisan lawsuits against the United States, the
Federal Government will prohibit funding contractors that use Perkins
Coie LLP.
- All Federal Government contracts with Perkins Coie LLP will undergo rigorous scrutiny, with agency heads directed to terminate engagements to the maximum extent permitted by law.
- The practices of Perkins Coie LLP will be reviewed under Title VII to ensure compliance with civil rights laws against racial bias.
ENSURING GOVERNMENT SERVES THE AMERICAN PEOPLE: President Trump’s Administration will not tolerate Perkins Coie LLP’s unethical and discriminatory actions that threaten our elections, military strength, and national security.
- In 2016, Perkins Coie LLP hired Fusion GPS to manufacture a false “dossier” designed to steal an election while representing failed presidential candidate Hillary Clinton.
- Perkins Coie LLP pushed debunked claims of secret Trump-Russia communications via Alfa Bank, with attorney Michael Sussmann indicted for lying to the FBI about this scheme.
- Perkins Coie LLP has worked with activist donors, including George
Soros, to judicially overturn enacted election laws, such as those
requiring voter identification.
- A court was forced to sanction Perkins Coie attorneys for unethical lack of candor before the court.
- Perkins Coie LLP has been accused of racially discriminating against its own attorneys, staff, and applicants.
- Perkins Coie has publicly announced racial percentage quotas for hiring and promotions, violating civil rights laws, and excluded applicants from fellowships based on race until lawsuits forced change.
- Perkins Coie LLP hosted an FBI workspace, raising concerns about partisan misuse of sensitive data during investigations targeting President Trump.
- Perkins Coie LLP has filed lawsuits against the Trump Administration, including one designed to reduce military readiness.
A RETURN TO ACCOUNTABILITY: President Trump is delivering on his promise to end the weaponization of government and protect the nation from partisan actors who exploit their influence.
- President Trump is refocusing government operations to their core mission—serving the citizens of the United States.
- President Trump signed an Executive Order to end the weaponization of the Federal Government on his first day in office after promising to “end forever the weaponization of government and the abuse of law enforcement against political opponents.”
- President Trump revoked security clearances held by dozens of intelligence officials who falsely claimed in a 2020 letter, during the height of the U.S. presidential election season, that Hunter Biden’s laptop was tantamount to Russian disinformation.
* * *
February 10, 2025 From the American Bar Association
The ABA supports the rule of law
It has been three weeks since Inauguration Day. Most Americans recognize that newly elected leaders bring change. That is expected. But most Americans also expect that changes will take place in accordance with the rule of law and in an orderly manner that respects the lives of affected individuals and the work they have been asked to perform.
Instead, we see wide-scale affronts to the rule of law itself, such as attacks on constitutionally protected birthright citizenship, the dismantling of USAID and the attempts to criminalize those who support lawful programs to eliminate bias and enhance diversity.
We have seen attempts at wholesale dismantling of departments and entities created by Congress without seeking the required congressional approval to change the law. There are efforts to dismiss employees with little regard for the law and protections they merit, and social media announcements that disparage and appear to be motivated by a desire to inflame without any stated factual basis. This is chaotic. It may appeal to a few. But it is wrong. And most Americans recognize it is wrong. It is also contrary to the rule of law.
The American Bar Association supports the rule of law. That means holding governments, including our own, accountable under law. We stand for a legal process that is orderly and fair. We have consistently urged the administrations of both parties to adhere to the rule of law. We stand in that familiar place again today. And we do not stand alone. Our courts stand for the rule of law as well.
Just last week, in rejecting citizenship challenges, the U.S. District Judge John Coughenour said that the rule of law is, according to this administration, something to navigate around or simply ignore. “Nevertheless,” he said, “in this courtroom and under my watch, the rule of law is a bright beacon which I intend to follow.” He is correct. The rule of law is a bright beacon for our country.
In the last 21 days, more than a dozen lawsuits have been filed alleging that the administration’s actions violate the rule of law and are contrary to the Constitution or laws of the United States. The list grows longer every day.
These actions have forced affected parties to seek relief in the courts, which stand as a bulwark against these violations. We support our courts who are treating these cases with the urgency they require. Americans know there is a right way and a wrong way to proceed. What is being done is not the right way to pursue the change that is sought in our system of government.
These actions do not make America stronger. They make us weaker. Many Americans are rightly concerned about how leaders who are elected, confirmed or appointed are proceeding to make changes. The goals of eliminating departments and entire functions do not justify the means when the means are not in accordance with the law. Americans expect better. Even among those who want change, no one wants their neighbor or their family to be treated this way. Yet that is exactly what is happening.
These actions have real-world consequences. Recently hired employees fear they will lose their jobs because of some matter they were assigned to in the Justice Department or some training they attended in their agency. USAID employees assigned to build programs that benefit foreign countries are being doxed, harassed with name-calling and receiving conflicting information about their employment status. These stories should concern all Americans because they are our family members, neighbors and friends. No American can be proud of a government that carries out change in this way. Neither can these actions be rationalized by discussion of past grievances or appeals to efficiency. Everything can be more efficient, but adherence to the rule of law is paramount. We must be cognizant of the harm being done by these methods.
Moreover, refusing to spend money appropriated by Congress under the euphemism of a pause is a violation of the rule of law and suggests that the executive branch can overrule the other two co-equal branches of government. This is contrary to the constitutional framework and not the way our democracy works. The money appropriated by Congress must be spent in accordance with what Congress has said. It cannot be changed or paused because a newly elected administration desires it. Our elected representatives know this. The lawyers of this country know this. It must stop.
There is much that Americans disagree on, but all of us expect our government to follow the rule of law, protect due process and treat individuals in a way that we would treat others in our homes and workplaces. The ABA does not oppose any administration. Instead, we remain steadfast in our support for the rule of law.
We call upon our elected representatives to stand with us and to insist upon adherence to the rule of law and the legal processes and procedures that ensure orderly change. The administration cannot choose which law it will follow or ignore. These are not partisan or political issues. These are rule of law and process issues. We cannot afford to remain silent. We must stand up for the values we hold dear. The ABA will do its part and act to protect the rule of law.
We urge every attorney to join us and insist that our government, a government of the people, follow the law. It is part of the oath we took when we became lawyers. Whatever your political party or your views, change must be made in the right way. Americans expect no less.
– William R. Bay, president of the American Bar Association
* * *
March 03, 2025 From the American Bar Association
The ABA rejects efforts to undermine the courts and the legal profession
Three weeks ago, the American Bar Association spoke to you about values that guide us. We called upon every lawyer to insist that the government adhere to four major principles of law that have guided our country for over 200 years: Defending Judges and Courts, Acknowledging the Role of the Courts, Adhering to the Rule of Law, and Respecting the Separation of Powers and the three co-equal branches of government with distinct duties and responsibilities. These principles have been bedrocks of American democracy. The ABA does not shrink from standing in support of each of them.
Since that time, government actions evidence a clear and disconcerting pattern. If a court issues a decision this administration does not agree with, the judge is targeted. If a lawyer represents parties in a dispute with the administration, or if a lawyer represents parties the administration does not like, lawyers are targeted. We issued statements standing up for these four key principles, and a government official targeted us by instructing some of its lawyers not to attend ABA meetings or participate as speakers. These actions highlight escalating governmental efforts to interfere with fair and impartial courts, the right to counsel and due process, and the freedoms of speech and association in our country.
Consider the facts about our courts:
High-ranking government officials (appointed and elected) have made repeated calls for the impeachment of judges who issue opinions with which the government does not agree. There have been calls to impeach “corrupt judges” with no effort to produce evidence of the so called “corruption.” These have been directed only at judges who have ruled against the government position.
There have now been statements by officials criticizing judges for not following the will of the people. Judges swear oaths to follow the law, not public opinion polling or political chatter or what someone contends is the will of the people. The chief justice of the U.S. Supreme Court wrote in his 2024 Year End Report on the Federal Judiciary, “[w]ithin the past year we have also seen the need for state and federal bar associations to come to the defense of a federal district judge whose decisions in a high-profile case prompted an elected official to call for her impeachment. Attempts to intimidate judges for their rulings in cases are inappropriate and should be vigorously opposed.”
We may disagree with interpretation of case law, but it is unacceptable to personally target judges just because we disagree with their ruling. We cannot have a judicial system where the government seeks to remove judges simply because they do not rule as the government desires. Considering the increasing physical threats to judges, these are clearly efforts to intimidate judges and our courts.
The courts are a co-equal branch of our government, and they must be treated that way. We call upon the government and our elected officials to cease making these statements. Government officials know they can appeal decisions they do not like. That is the appropriate way to disagree with a decision of a court.
Despite these efforts to intimidate, our courts are doing their job of reviewing disputes and applying the law. The ABA will defend our courts because we support the rule of law. We encourage every lawyer to do the same and demand these attacks on our judiciary stop immediately.
The efforts to intimidate have now expanded to include the legal profession. Consider the facts:
An executive order has targeted legal and medical organizations because of their DEI advocacy. Just a few days ago, a high-ranking government official indicated that law firms that represent parties against the government should be identified even though this information is already public.
Justice Department lawyers and assistant U.S. attorneys have been the subject of personal attacks, intimidation, firings and demotions for simply fulfilling their professional responsibilities. It is especially disturbing because the government has espoused publicly that it will not weaponize or politicize the Justice Department. The actions against Department of Justice employees belie these assertions.
Now the government has decided to punish a prominent Washington, D.C., law firm because it represents a party that the administration does not like. There are also reports that actions may be taken against more law firms. Clients have the right to have access to their lawyer without interference by the government. Lawyers must be free to represent clients and perform their ethical duty without fear of retribution. These government actions deny clients access to justice and betray our fundamental values.
We support the rights of people to advance their interests in courts of law when they have been wronged. We reject the notion that the government can punish lawyers who represent certain clients or punish judges who rule certain ways. We cannot accept government actions that seek to tip the scales of justice in this manner.
We speak today on behalf of the legal profession and its members who seek to live by the oath each took upon admission to the bar. This is not something we do lightly nor is it the first time we have spoken in opposition to actions against an administration, regardless of political party. We sued or opposed policy proposals of the last few administrations when they failed to adhere to the rule of law or interfered with access to justice, and we are doing the same with the current administration. We are nonpartisan. We stand for the rule of law. We stand for the vital role of our courts and the essential job that lawyers do every day throughout our country. We have stood on this ground for many years.
We reject efforts to undermine the courts and the profession. We will not stay silent in the face of efforts to remake the legal profession into something that rewards those who agree with the government and punishes those who do not. Words and actions matter. And the intimidating words and actions we have heard must end. They are designed to cow our country’s judges, our country’s courts and our legal profession. Consistent with the chief justice’s report, these efforts cannot be sanctioned or normalized.
There are clear choices facing our profession. We can choose to remain silent and allow these acts to continue or we can stand for the rule of law and the values we hold dear. We call upon the entire profession, including lawyers who serve in elected positions, to speak out against intimidation. We acknowledge that there are risks to standing up and addressing these important issues. But if the ABA and lawyers do not speak, who will speak for the organized bar? Who will speak for the judiciary? Who will protect our system of justice? If we don’t speak now, when will we speak?
The American Bar Association has chosen to stand and speak. Now is the time for all of us to speak with one voice. We invite you to stand with us.
– William R. Bay, president of the American Bar Association
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