Vol. 46, No. 4

Defending the rule of law: Bars respond to Capitol riot

By Dan Kittay

Like most Americans, bar leaders throughout the country found themselves watching the storming of the U.S. Capitol on Jan. 6, 2021, in horror, as some of their fellow citizens attacked police, ransacked offices and posted social media videos of themselves in the act.

As the public voices of their bars, leaders soon turned to the question of whether they should issue a public statement reacting to what they watched. And if they did issue a statement, how should they word it?

According to a post by Aurora Austriaco, president of the National Conference of Bar Presidents, at least 39 state, regional and affinity bars reported issuing statements on the Jan. 6 events, as did the ABA. Interviews with some of their leaders revealed some of the factors they considered, especially when deciding what the bar should say about the cause of the riot.

Upholding the rule of law

"There was not much disagreement on whether to say something," says Kevin Ryan, executive director of the Monroe County (N.Y.) Bar Association.

The statement, which MCBA issued on Jan. 7, says, in part: “Yesterday, we witnessed what happens when we as leaders fail to speak loudly and forcefully against violence, injustice and hate. The anarchy and violence witnessed today are the direct result of the failure of leaders to declare, as the courts across our nation have, that the November 2020 election was fair and free from any significant voter fraud.”

As with the other bars whose leaders spoke for this article, the MCBA put the statement in a legal framework: “Free and fair elections are a pillar of American democracy, as are abiding by the results of the will of the American people and the peaceful transition of power.

“Every four years, the American people take to the polls to voice their support or disapproval of our elected leaders. While the candidate we support may sometimes lose, the integrity of our election system should never be questioned absent uncontroverted proof of voter fraud that would change the results. We are a nation of laws. We must never resort to speculation, conjecture, or political motive to undermine our election process.”

Lawyers’ role as officers of the court and stewards of the Constitution made it clear to Elia Diaz-Yeager, president of the Hispanic National Bar Association, that she should begin drafting a statement while the riot was still ongoing.

“The foundational principle of our peaceful democracy includes equality and rule of law,” she explains. “We've always stood as a leading example to the world as how democracy works, even when the parties don't agree. What we were witnessing was not a peaceful protest.”

The HNBA statement, issued Jan. 6, says, in part: “What should have been an orderly constitutional process certifying the results of November's presidential election was interrupted by a violent mob who stormed federal property and put the lives and safety of hundreds of our nation's public servants, law enforcement, and other law-abiding Americans in danger. This assault on our American democracy is unacceptable.”

The risk of offending members

Part of the question of what to say in such a statement is the reality that taking a position on an event or person has the potential to offend some members, who may even choose to leave a voluntary bar or challenge whether a mandatory one has overstepped its bounds. Bars each weighed that risk differently, leading to some variations in word choice and how the key issues were framed.

While many bar statements did not use specific names, others were more pointed in referring to then-President Trump. For example, the HNBA statement called on him and on Congressional leaders to condemn the violence and uphold the Constitution. “We urge President Trump to use his final weeks in office to assist in the peaceful and safe transition of power—one of our nation's most revered and unique traditions,” the statement continued.

“Our word choice was very carefully considered,” Diaz-Yeager says. “We don't often call out individuals, [but] we felt that as a nation, we should set the example of a peaceful transition. We wanted to urge that that continue.”

At least one bar took the reference to the then-president a step further. New York State Bar Association President Scott Karson’s statement, issued Jan. 6, says, in part: “We call upon President Trump to stand up for the democracy he was sworn to uphold and to renounce his brazen and meritless attempts to disenfranchise millions of voters. He has damaged many Americans’ faith in our democratic institutions—all under the guise of protecting our election system despite offering no evidence of widespread voter fraud in over 60 court cases across the country.”

The question of whether to mention and how to characterize Trump’s actions was part of Karson’s thought process in planning the statement. “The circumstances were such that I think we can very easily and correctly and accurately attribute the events that day at least in part to his conduct,” he says, “so I thought it was appropriate to do so.”

Karson says he tries to make sure that NYSBA does not become partisan in its statements, but that he also believes it’s important to be clear when circumstances warrant.

“We would never expect everybody to agree with every word and every syllable we put together on a piece of paper,” says D’Arcy Kemnitz, executive director of the National LGBT Bar Association. Through careful consideration among the bar’s leaders, they drafted a statement about the riot that stressed what they saw as the key areas of focus.

The statement, issued on Jan. 7, says, in part: “We urge our elected officials to call for and actively pursue a peaceful transfer of power, the hallmark of our democracy, and to abandon the political demagoguery that led to yesterday’s abhorrent anarchy.

“When we as legal professionals were called to the bar, we took an oath to uphold the Constitution of the United States of America. Each of us should take that oath very seriously, and we expect all of our elected officials to do the same, including the many objectors to the results of the last election in Congress who are themselves attorneys.”

Far fewer mandatory bars made statements; for one of them, the State Bar of Arizona, drafting its statement came down to homing in on what the officers saw as the most essential issue, says SBA President Denis Fitzgibbons.

“We were all shaken by the fact that it appeared to us that this mob had intentionally gone to try to disrupt the working of Congress,” Fitzgibbons notes. “That’s what made us feel like we needed to respond. The legal profession is based on the rule of law, and if that is ever undermined, it erodes the profession that we hold near and dear to our heart.”

The statement, issued on Jan. 12, says, in part: “The State Bar of Arizona strongly condemns the use of violence as a means of disrupting or stopping the Congressional certification of the Electoral College vote. Not only because the constitution requires the certification, but because the process is an integral part to the rule of law.”

A different kind of response

While the Dallas Bar Association did not issue a public statement, on Jan. 22, it conducted an online attorney oath renewal ceremony, designed to give members a way to “celebrate and renew their commitment to the Constitution and the Rule of Law,” says DBA President Aaron Tobin.

“We wanted an opportunity for the profession to come together with one voice. We all took an oath to uphold the Constitution and the rule of law. As a profession, we take that very seriously,” Tobin explains. “It troubled us to see what happened at the Capitol on January 6, when it seemed like there was a disregard for the rule of law.

“We wanted an opportunity to reflect on that oath we took, and what it means.”