Law School Deans Have a Moral Imperative

President Donald Trump's public targeting of law firms and universities that oppose him or disagree with him is a direct assault on the rule of law in the United States.

Over the weekend, Trump issued a memo directing the Justice Department to root out political opponents who use the law to challenge his actions. Trump’s memo is designed to intimidate lawyers who represent the administration’s legal and political opponents, so that Big Law will drop any challenges to Trump out of fear they will lose clients, and smaller firms will look at their balance sheets and turn elsewhere.

This weekend’s memo is part of a larger systematic effort. Trump’s first executive order targeting law firms barred the federal government from using Perkins Coie and suspended its attorneys' security clearance because—as the executive order explicitly stated—it represented political opponents. Trump issued a similar executive order targeting Covington & Burling because they provided legal assistance to Special Counsel Jack Smith. A third executive order was then issued targeting Paul Weiss for its association with two attorney who assisted investigations of Trump by Special Counsel Robert Mueller and Manhattan District Attorney Alvin Bragg, as well as representing parties suing January 6th insurrectionists. The most recent memo is designed to put government muscle and staffing behind his threats. All of these actions taken together are designed to turn rule by law into rule by a man.

Law school deans have a key role right now. They must clear their calendars, stop fundraising, stop meeting with students, get their lawyers ready, tell their Presidents that they are willing to be fired rather than stay silent, coordinate with each other, and come out with a strong and clear statement condemning the attack on the rule of law and refusing to capitulate to any demands from the administration that would undermine their institution’s academic freedom or the rule of law.

Individual tweets and email chain letters are frankly not that important or effective; institutions and those that lead them must speak up, and there is no more obvious institution than law schools and no leader more obvious than law school deans. Yet of the hundreds of law school deans in the country, I have counted only two--Georgetown Law Dean William Treanor and Berkeley Law Dean Erwin Chemerinksy--who have publicly denounced the administration’s actions.

But 99 percent of the roughly 200 or so law school deans in the U.S. have been conspicuously silent.

Trump’s intimidation campaign is working and, in the process, destroying the credibility of academic institutions and the legal profession.

Columbia agreed to the terms Trump set in his federal funding blackmail and are creating “oversight” for a disfavored academic department. Trump will not be President in four years, but Columbia has made it clear that it will bend to the will of power. Whether the new President is Republican or Democrat, Columbia has broadcast to the world that ideological oversight of academic research is something they will barter.

Paul Weiss, targeted because of its association with attorneys who worked on the investigations of Trump by Special Counsel Robert Mueller and the Manhattan District Attorney, agreed to abandon its internal diversity and inclusion policies and support his pet causes with $40 million in "pro bono" services.

At least in part because of Paul Weiss’s example, thousands of other lawyers and law firms are complying in advance, though we may not know their names. I have heard from one public defender that the law firms who once would say yes to pro bono federal death penalty cases are now turning those cases away.

It should go without saying that the rule of law depends on the ability of legal professionals to represent clients without retribution and on universities to be independent institutions, not tools of the most recently elected President.

Trump’s chilling message to the legal community about the potential consequences of representing clients the President does not like or to universities about teaching ideas the President does not agree with is awful and authoritarian for sure. But more chilling is the silence his actions have been met with; we tacitly accept the President's terms. This is not a court of law, where one is innocent unless proven guilty, and there is a right to remain silent; this is the court of public life, where silence is itself immoral.

Georgetown Law's Dean William Treanor exemplified leadership by rejecting a federal prosecutor's warning to change the language and policies of Georgetown Law, holding up the First Amendment and Ignatian principles against a blatant attempt at blackmail. Berkeley Law Dean Erwin Chemerinksy also exemplified this leadership by writing in the New York Review of Books about how Trump’s Columbia threats were unconstitutional and dangerous. Obviously, law school deans understand the nature of the attack, and that it is more than a threat; it is the destruction of the rule of law itself.

But most are choosing to keep silent, likely out of fear that retribution will be visited on their students or their university. I believe their care is serious, and their love for their universities is genuine, but at some point—and we've passed that point—the obligation has to be to law and academic independence.

Students should pressure their deans. Faculty should pressure their deans. Alumni should call their deans. Reporters should ask deans questions at public events. The obligation to the rule of law is more fundamental than the obligation to any individual institution, and the human cost of living in a society in which law is available to those who are friends to power, and dare not criticize it, is enormous.

If law school deans will not speak up, how can they expect law firms to speak up? How can they expect Big Law not to keep making corrupt deals? How can they expect plaintiffs' lawyers to be brave? How can they expect nonprofits, terrified of retribution, risk getting their tax status investigated? How can they expect businesses to speak up, when they risk retribution that would damage all their employees? Do law school deans plan to teach students that law is just a trade and not a solemn obligation?

When there is silence, it will be hard not to infer that the Law Schools are obeying quietly, shifting resources, directing students towards firms that don’t irritate Elon Musk. Regardless of what they are actually doing, they are leading by example, and letting students know that when their integrity, professionalism, and ethics as a lawyer are challenged by the politically powerful, it is better not to take a risk.

Law school deans across the nation must collectively affirm their commitment to upholding the rule of law and protecting the autonomy of educational institutions. They need to defend their own institutions as places worth saving but also make possible the things that thrilled their hearts when they were young lawyers–free speech and the vision that all people are treated the same under law, regardless of their connections or politics.

And if Trump does respond by trying to pull funding, all of us need to be there ready to pull the oars to stop him. If law school deans have to quit to feel comfortable speaking out, we should be ready to support them. If they are forced out, we have to be ready to stand with them.

Academic Freedom, Equality and Liberty, Executive Order, First Amendment, Free Speech