December 28, 2020

Chair's Column


Robert N. Weiner

Robert N. Weiner is Chair of the ABA Section of Civil Rights and Social Justice and a Partner at Arnold & Porter Kaye Scholer LLP The Section on Civil Rights and Social Justice


            Professor Timothy Snyder at Yale has studied the rise of despotism in 20th century Europe and written a short, insightful, and frighteningly relevant book entitled “On Tyranny:  Twenty Lessons from the Twentieth Century.”  Professor Snyder prefaces his 20 lessons with the admonition that “Americans today are no wiser than the Europeans who saw democracy yield to fascism, Nazism, or communism.  Our one advantage is that we might learn from their experience.” 

            Two of the lessons Professor Snyder draws from the European experience speak directly to us as lawyers.  He advises us to, “Remember professional ethics,” because it is “hard to subvert a rule of a law state without lawyers,” in other words, unless lawyers are complicit.  In the Third Reich, he notes, lawyers were “vastly overrepresented” among the commanders of Einsatzgruppen, which carried out the mass murder of Jews, Gypsies, and others.  Professor Snyder also highlights the importance of professional associations as an obstacle to tyranny: “If members of professions think of themselves as groups with common interests, with norms and rules that obligate them at all times, then they can gain confidence and indeed a certain kind of power.  Professional ethics must guide us precisely when we are told that the situation is exceptional.”  Lawyers who do not protect these values, Professor Snyder warns, can find themselves saying and doing things on behalf of the government that “they might previously have thought unimaginable.” 

            A second historical lesson particularly relevant for lawyers addresses the need to “Defend institutions.”  Professor Snyder explains: “It is institutions that help us to preserve decency.”  But, they “do not protect themselves.  They fall one after the other unless each is defended from the beginning.”  Professor Snyder illustrates his point with an editorial from a Jewish newspaper in Germany after Hitler’s ascension to power in 1933.  It optimistically opined that, “We do not subscribe to the view that Mr. Hitler and his friends, now finally in possession of the power they have so long desired, will  . . . suddenly deprive German Jews of their constitutional rights, [or] enclose them in ghettos, [or] subject them to the jealous and murderous impulses of the mob.  They cannot do this because a number of crucial factors hold powers in check.”  It is a mistake, Snyder cautions, to assume “that rulers who came to power through institutions cannot change or destroy those very institutions.”

            To be clear, I am not suggesting that the current Administration in the United States resembles Hitler’s in Germany or Mussolini’s in Italy, nor that this country is on the precipice of tyranny.  But, as Professor Snyder advised, our belief in American exceptionalism should not engender overconfidence that it cannot happen here.  We need not predict imminent tyranny to recognize that the rule of law is under assault in this country, more than at any time since Watergate, if not before.  The legal profession is the bulwark protecting the rule of law against an Administration that does not appear to value it.  As the representative of the legal profession, the ABA is at the center of this defense, and within the ABA, the principal protagonist on these issues is the Section on Civil Rights and Social Justice.

            A critical moment may come if, as has been variously rumored and denied, the President fires the Special Counsel investigating possible collusion with a foreign power during the campaign and obstruction of justice after the election.  We have seen this scenario before.  In October 1973, when President Nixon refused to comply with a court order to produce recordings of conversations in the White House, Archibald Cox, the Special Counsel investigating him, refused to obey a directive from Nixon to stop seeking the tapes and made clear that he would seek enforcement of the court order.  Nixon thereupon instructed Attorney General Elliott Richardson to fire Cox.  Richardson refused and resigned.  The Deputy Attorney General, William Ruckelshaus, also refused and resigned.  The third official in the succession, Solicitor General Robert Bork, executed Nixon’s order to fire Cox. 

            Richardson and Ruckelshaus acted as lawyers should, putting their ethical obligations and loyalty to democratic institutions ahead of partisanship or allegiance to a particular President.  But there was another hero as well.  The day after this “Saturday Night Massacre,” as it came to be called, ABA President Chesterfield Smith issued a statement severely criticizing the President’s action, observing that, “No man is above the law.”  The ABA Board of Governors endorsed President Smith’s statement less than a week later.  President Smith kept up the criticism, insisting that at minimum, the rule of law denied a person under investigation the ability to fire the prosecutor investigating him.  Nixon soon bowed to the pressure and appointed a new special prosecutor, Leon Jaworski, a former ABA President.

            In his column in the ABA Journal shortly after these events, President Smith explained why he spoke out.  Lawyers, he said, “bear a special responsibility in our society for the preservation of a free and democratic government.  As officers of the court and thus as guardians of the law, lawyers are peculiarly well qualified to protect the rule of law. Lawyers should above all others jealously defend and promote the rule of law against all assault.”    

            These words could not be more apt today.  Perhaps we will be fortunate enough to avoid a constitutional crisis like the one in 1973.  But if such a crisis does occur, our “special responsibility” as lawyers will dictate the response of CRSJ and, I hope, the legal profession.