Leading Democracy Scholars and Experts Warn Politicized Targeting of Law Firms Threatens Rule of Law
Amicus Brief Highlights Improper Retaliation Against Law Firms; Urges Appeals Court to Uphold Lower Court Rulings
WASHINGTON — A group of leading democracy scholars and experts, represented by the States United Democracy Center, filed an amicus brief in Perkins Coie LLP v. U.S. Department of Justice, a case before the U.S. Court of Appeals for the D.C. Circuit. The brief urges the court to affirm lower court rulings blocking executive orders that targeted several major law firms, warning that government retaliation against lawyers for the clients they represent is a symptom of a weakening democracy and a threat to the rule of law.
“The ability of lawyers to hold the government accountable is foundational to the rule of law,” said Sam Trepel, Senior Counsel & Rule of Law Director at the States United Democracy Center. “Lawyers must be able to represent their clients without fear of government retaliation—our legal system depends on it. When attorneys face retaliation for representing certain clients or causes, it threatens their ability to be effective advocates and makes it harder to meaningfully challenge unlawful government conduct—thus weakening the rule of law itself.”
This case concerns a series of executive orders that imposed penalties on several prominent law firms—including suspending security clearances for firm employees, restricting their access to federal buildings, and directing federal agencies to terminate contracts with the firms. The firms allege they were targeted because of the clients they represent and the causes they support, including political campaigns and litigation challenging the Trump administration’s actions.
The brief is supported by an ideologically diverse group of scholars who study how democracies weaken and authoritarian systems emerge in their wake. It explains that leaders with autocratic tendencies often attempt to consolidate power by interfering with the independence of the legal system. The brief describes how leaders of backsliding democracies often target lawyers and legal organizations representing political opponents or critics of the government as a way to silence dissent and consolidate power. Such efforts can intimidate attorneys, deter them from representing certain clients, and ultimately weaken the rule of law by making it harder for individuals and organizations to challenge those in power.
Amici also emphasize that courts play a critical role in reviewing these actions and ensuring constitutional protections and long-standing safeguards remain in place.
Signatories on the brief include: Michael Albertus, Nancy Bermeo, Javier Corrales, Scott L. Cummings, Larry Diamond, David M. Driesen, Francis Fukuyama, Tom Ginsburg, Gábor Halmai, Gretchen Helmke, Aziz Z. Huq, Sonia Mittal, Maria Popova, Stephen Richer, Dalibor Rohac, Kim Lane Scheppele, Susan Stokes, and Lucan Way.
Key excerpts from the brief include:
“By targeting lawyers and legal associations that speak out against their government, autocrats can further consolidate their power. Most directly, pursuing lawyers who represent political opponents can prevent those opponents from receiving adequate representation, thus ensuring their silence or defeat. This also clears the way for autocrats to transform the legal system into a tool for the autocrat to retain power, as their most high-profile political rivals are silenced or incapacitated.”
“Because autocratic legalists cloak their actions in the legitimacy of law and previously trusted institutions, the descent into autocracy can be hard to stop. Yet the ability to recognize the risks posed by targeting lawyers is vital, especially as such actions are usually part of a pattern of similar acts of retaliation. Indeed, autocratic legalists tend to target opposition groups and individuals close in time because doing so increases their chilling effect, signals the regime’s strength, and exhausts the opposition. This pattern is visible here: Appellees are four private law firms the administration targeted through Executive Orders within a short time.”
“Targeting and capture of lawyers and legal entities is typical of autocratic countries, not democratic ones. We see a concerning trend of stifling dissent and consolidating legal power through the targeting of private law firms perceived to be insufficiently aligned with the President and his administration.”
Read a summary of the amicus brief here.
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About the States United Democracy Center
States United is a nonpartisan 501(c)(3) organization dedicated to the rule of law and free, fair, secure elections. We provide direct support to state officials and law enforcement leaders as they uphold the law and our system of checks and balances, protect public safety, defend elections, and preserve our democracy. For more information, visit statesunited.org.