If ever our country needed lawyers, the time is now. Make no mistake, if Trump’s campaign rhetoric is any indication, he, along with Republican majorities in both houses, will set out to alter the landscape of a variety of areas like, civil liberties, immigration, and criminal defense. Trump has made it clear that he intends to stack the federal courts, including the Supreme Court, with very conservative judges who Trump believes will fall in line with the political and social views – he espoused during the campaign. Because of this election, minorities, immigrants, the LGBT community, and the poor, may no longer be able to rely on the protection of the federal government. At the risk of sounding dramatic, I hereby call all lawyers to rise and lend a hand. Lawyers who will stand up and drive this intolerant power back, and effectively stand between the strong and the weak and the rich and the poor. Lawyers may be our best defense against the totalitarian direction President Trump has loudly signaled he will go.
Like every other Trump dissenter, I have felt anger, fear and helplessness at this election. Lord knows, I have watched my share of news and read my share of tweets, but none of that changes anything. We need action and fewer words. I have searched my soul to figure out how I can do my part and the answer was crystal clear. I am a lawyer ― a criminal defense lawyer. From my start as a public defender in New York City to my present status as a partner in a law firm, I have set out to make sure that individuals who are arrested and charged with crimes, are treated fairly by police officers, prosecutors and judges, and, if found guilty, the sentence fits the individual as well as the crime. In the face of President Trump, and all he has threatened, my profession just became profoundly more important.
Trump has repeatedly touted himself as the “law and order” president. He has said more than once that “law and order must be restored.” But at what cost? He consistently painted a dire picture of lawlessness and crime, when in most cities violent crime is down. He intends to promote stop-and-frisk policies all over the country, which will most likely jeopardize civil rights efforts that the DOJ has been promoting for the past eight years. He may discourage federal investigations of police shootings of a disproportionate number of African Americans. (Do any of us expect Rudy Giuliani, a potential candidate for Attorney General, to protect the rights of minorities or immigrants?) Trump’s rally cry that “all lives matter” as a counter argument to the “black lives matter” movement sounds like a president uninterested in understanding the problem, let alone one who will make attempts to fix it. Lawyers must make sure that his thirst for “law and order” is balanced against the constitutional and civil rights of our citizens.
And what will come of the DOJ’s stated support for a more compassionate sentencing scheme for low-level, non-violent drug offenders or those with mental disabilities? These were policies that were geared toward lowering recidivism as well as addressing current prison populations. I doubt that Trump’s Attorney General will maintain this compassionate and rational focus. Lawyers must put him to the test.
The need for lawyers stretches far beyond criminal defense. What about the civil liberties of immigrants, LBGT, and religious minorities? Many will need lawyers to fight for the protections our legal system should offer. Look at President Trump’s opening paragraph regarding his first 100 days: “On the first day, I will take the following…. actions to restore security and the constitutional rule of law. (If that statement does not make you shiver with anxiety, then you should read some history books on the rise of authoritarian regimes). Then Trump proclaimed that he will: “cancel every unconstitutional executive action, memorandum and order issued by President Obama...begin removing the more than 2 million criminal illegal immigrants from the country and cancel visas to foreign countries that won’t take them back… suspend immigration from terror-prone regions where vetting cannot safely occur. All vetting of people coming into our country will be considered extreme vetting.” Translation: deport and ban. What about immigration court? Deportation proceedings? There already is a deep-rooted process in place. What will become of them? Trump’s frightening plan will become a reality unless lawyers speak for those who will be directly affected by these harsh and far-reaching policies.
Is tort-reform on the horizon? I have a feeling that a Trump administration may attempt to limit the recovery, and for plaintiffs who have been injured by defective products, medical malpractice and the negligence of others. (Vice President-elect Pence has claimed that cigarettes don’t kill). Given Trump’s goal of limited regulation on business, who else but lawyers will serve as the watchdog (and pit bull) for consumers, patients, and the public?
I could go on: woman’s reproductive rights, same sex marriage, the environment, freedom of speech, freedom of the press, treatment of prisoners of war. The list is as long as the measures of progress achieved over the past decades and centuries. Our social and personal liberties are at risk. Our planet is at risk - literally. Lawyers must be ready to fight back, marshaling facts, resources, and precedent to counter every attack.
While President Trump must contend with the checks and balances of the judicial system, he has told us that he will fill the Supreme Court with those who are like-minded. Adding insult to injury, Trump has thrown out the list of federal judges – over 50 – that Obama nominated and were awaiting confirmation by a recalcitrant Senate. Here at least there is some hope. Judges and prosecutors generally have an appreciation for the rule of law, the Constitution, and the integrity of our 240-year-old constitutional judicial system. Let us hope they maintain those principles in the face of what could be some very outlandish and dangerous policies from Washington. Lawyers will need to make the arguments persuading them to do that.
We also have stare decisis, a fundamental legal principle requiring courts to uphold prior decisions to promote certainty and stability. A prime candidate for the application of this principle is Roe v. Wade. While many fear that a Trump administration will fight to overrule this significant decision, even a Trump-filled court would have to overcome the obstacle of stare decisis when it comes to a woman’s right to choose. Of course, lawyers will be needed to make these essential arguments.
Some say time will tell. But time has already told us something very troubling. Throughout history, the most difficult moments and the most daunting challenges have called for our nation’s citizenry to increase its courage, and commitment to our principles. Trump’s platform drastically changes the direction of our country with the deepest effect on minorities, immigrants, the LGBT community, and the poor.
If the shock of Trump’s election has left you feeling helpless, go to law school and then make a difference. And for those of us who are already lawyers, let’s breathe life into this noble profession. Let us use our persuasive skills and legal knowledge to change the course of history – again ― by holding the Trump administration accountable to the rule of law and United States Constitution, which has always proven to be far greater and long-lasting than the term of any one president.
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