As Donald Trump reenters the White House for a second term, lawyers in all specialties must deal with the reality of how Trump’s agenda will affect their practice area. Those working in government or public interest have reason to be especially wary, as Trump has repeatedly indicated that he plans to fire many public employees and has enlisted billionaires Elon Musk and Vivek Ramaswamy to cut funding to federal programs. With Republicans in control of Congress and a firm conservative majority in the Supreme Court, there will be few checks on Trump’s plans, at least in the first two years.
The Trump agenda may affect public defenders less directly than other types of poverty lawyers. The overwhelming majority of people facing criminal charges in the United States are prosecuted at the state level, and Gideon v. Wainwright, 372 U.S. 335 (1963), makes clear that the responsibility to fund defense counsel at the state level rests with the individual states. Thus, the threat to public defense is perhaps less extreme than that faced by civil legal aid providers, who depend on Congress to fund their offices via the Legal Services Corporation. Nonetheless, policy changes and direct threats to federal defense funding are still likely to affect public defense practice over the next four years.
Perhaps his most well-known campaign pledge, President Trump has promised deportation of undocumented immigrants and asylum seekers on a massive scale. His close adviser Stephen Miller has stated that Trump will issue executive orders and overhaul agencies to “unleash the vast arsenal of federal powers to implement the most spectacular migration crackdown.” Charlie Savage et al., Sweeping Raids, Giant Camps and Mass Deportations: Inside Trump’s 2025 Immigration Plans, N.Y. Times (Nov. 11, 2023). The plan involves deputizing local police and national guard soldiers as immigration enforcement officials.
Public defenders and their clients are most directly threatened by Trump’s plan to go after so-called “sanctuary cities,” which are municipalities that do not cooperate with federal immigration authorities or honor Immigration and Customs Enforcement requests to detain suspected undocumented immigrants. Many states and large cities have some form of sanctuary law or policy in place, including New York, Los Angeles, San Francisco, Chicago, and Philadelphia. Trump has promised to punish sanctuary cities by stripping them of federal funding, and even said he would imprison the mayor of Denver if he interferes with the deportation scheme. Perry Russom, Trump’s Team Reportedly Looking to Punish Sanctuary Cities That Block Mass Deportation Efforts, ABC7 (Nov. 27, 2024).
Criminal defense counsel have a constitutional duty to advise noncitizen clients of the potential immigration consequences of a conviction or guilty plea. Padilla v. Kentucky, 559 U.S. 356 (2010). Regardless of that duty, any competent public defender will carefully weigh the collateral consequences when advising their client on whether to accept a conviction. A plea offer that looks like a slap on the wrist on paper can turn into a catastrophic punishment if it comes with deportation. In large cities with some form of sanctuary policy, defenders often can safely advise their noncitizen clients to accept a reasonable plea offer because they know federal authorities will not be alerted to their client’s status. If sanctuary status is forcibly removed in these jurisdictions, this calculus will quickly change. To fulfill their duties to their noncitizen clients, defenders will be required to take more cases to trial, even if the odds of an acquittal are slim, since the primary interest of many of these clients will be to avoid deportation. Public defense offices in these jurisdictions, many of which are already understaffed and underfunded, will find their resources stretched even thinner, as defenders and other assigned counsel will need to spend more time researching immigration consequences, as well as preparing for and conducting trials. Even in municipalities that never had sanctuary policies, defenders will need to be prepared for immigration authorities that are more aggressive and better resourced. States and other funders will need to be prepared to provide local defenders with the resources they will need to meet these new challenges.
One of President Trump’s first-term goals was to appoint Supreme Court justices who would overturn Roe v. Wade, 410 U.S. 113 (1973), which established a qualified federal right to abortion. In 2022, Trump’s appointed justices, with the help of other conservatives on the Supreme Court, fulfilled this promise, ending the protections of Roe in Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022). Many states quickly enacted laws (or, in some cases, reactivated existing laws) that criminalized activity related to abortion and pregnancy. In the year following the Dobbs decision, 210 women were criminally charged “for behavior related to pregnancy, abortion, pregnancy loss or birth.” Sarah Varney & Layla Quran, After Roe, Pregnant Women Face Increased Risk of Criminal Prosecution, PBS.org (Nov. 14, 2024. Public defenders in jurisdictions that seek to criminally punish abortion are already having to adapt to a changed legal landscape and learn how to defend a new class of client in a politically charged atmosphere.
Trump’s second term plans on abortion policy remain unclear. During his 2024 campaign, he publicly supported federal legislation that would ban abortion after 15 or 20 weeks, but he has also stated that he opposes a federal ban of any kind. Aria Bendix & Randi Richardson, What Trump’s Victory Could Mean for the Future of Abortion Rights, NBC News (Nov. 7, 2024). At the very least, Trump will appoint more federal judges who share his view that states are free to criminalize abortion as they wish, increasing the likelihood that new state abortion restrictions will be enacted and enforced.
If the Trump administration chooses to take a more active role in abortion restriction, it may adopt a plan authored by Trump allies, known as Project 2025, to use the Comstock Act to criminalize the distribution of otherwise legal abortion medication through the mail. This would be a novel application of the Comstock Act, a 150-year-old law written to prohibit the circulation of “obscene” material through the mail. It has rarely been used in recent decades except in a handful of child pornography prosecutions. Id. Nonetheless, given the rapidly changing legal landscape presented by the Dobbs decision itself, federal public defense providers should be mindful that federal abortion prosecutions are possible even if no new ban is enacted by Congress.
While most public defenders work in state court, there are about 3,700 lawyers, investigators, paralegals, and support staff working at 82 federal defender organizations across the country, as well as about 12,000 private attorneys who are regularly appointed to represent people who cannot afford a lawyer in federal court. Defender Services, US Courts. These defense providers are more directly affected by federal action than their state court counterparts. Contrary to ABA policy on public defense independence, federal defenders do not operate independently and are beholden to the federal courts to request a reasonable budget for them. In early 2024, this nearly led to a budget crisis that would have required 10% personnel cuts across the board. Press Release, Def. Serv. Off. Training Div., US Cts., Federal Defenders Lift Hiring Freeze After Budget Raised (Mar 25, 2024). While it was not an issue in the 2024 election, the Trump administration may seek to cut federal defender funding if it follows through on its pledge of massive spending cuts and layoffs across the federal government.
Regardless of the federal defender funding situation, however, federal defenders are likely to face an increase strain on their workload under Trump administration policies. Trump, despite his personal criminal record, has consistently called for a “tough on crime” approach that will lead to more people facing charges in federal court. Project 2025’s plan for criminal enforcement calls on the Justice Department to “[u]se applicable federal laws to bring federal charges against criminals when local jurisdictions wrongfully allow them to evade responsibility for their conduct,” pursue the death penalty more frequently, and execute the 44 people currently on federal death row. Project 2025, Mandate for Leadership at 553–54 (2023). These aggressive policies would certainly place additional burdens on federal defenders. Death penalty cases, in particular, are labor intensive and require specially trained defense attorneys and support staff to provide competent representation. Trump also has vowed to prosecute his political opponents, despite no evidence of criminal wrongdoing. Tom Dreisbach, Trump Has Made More Than 100 Threats to Prosecute or Punish Perceived Enemies, NPR.org (Oct. 22, 2024). If this promise extends to rank-and-file federal employees who are perceived to be hostile to Trump, then federal defenders will inevitably be called upon to provide representation.
President Trump has promised a broadly aggressive federal government that, above all, seeks to prosecute and punish individuals and groups that do not conform to his agenda. Public defenders will need more staff and resources to meet the immense challenges posed by these sweeping reforms. Jurisdictions must be prepared to meet the needs of public defenders in this new political environment to ensure all clients receive constitutionally competent representation.
