The Trump Resistance I featured large numbers of people who went out of their way to confront legal and moral threats. Millions turned out for demonstrations, when they could have stayed at home. Thousands braved traffic or mass transit to mass on airports, demonstrating against the “Muslim Ban” and even offering free legal services to travelers caught in the chaos. They jumped into Resistance they could have easily ignored.
Most of the time most of us can get through our days without having to feel a sense of moral courage or compromise. We work, eat, and sleep, doing our best to navigate the world as it is. Even talk of politics is an add-on, not always connected to day-to-day routines.
But sometimes individuals are faced with an explicit choice about whether to contest injustice, or to comply with authorities. Donald Trump and his Administration have vigorously forced the issue, demanding explicit compliance, often wrapped in extraneous flattery. Recognizing the moment of Resistance and taking risks or losses to do what’s right may look obvious in retrospect, but refusing to comply is never easy or simple.
The University administrators forced to explain away the policies they may have endorsed weeks earlier surely never expected this sort of moment. It shouldn’t be surprising that it’s easier to genuflect to Trump and hope to keep federal dollars coming into the school. Compliance, usually quiet, is what we should expect.
When an individual recognizes the chance to compromise themselves and opts not to do so, it should provide a bit of inspiration to the rest of us–and it happens–sometimes at great cost to the resister. Most of Trump’s early Republican critics renounced their initial evaluations of an orange menace, and were able to flatter their way back into their leader’s good graces, even when it means revising political commitments on short notice. The relative few who did not retreat (e.g., Justin Amash, Jeff Flake, Bob Corker, Liz Cheney, Adam Kinzinger, Mitt Romney) are now way out of politics, living cautions to everyone else about the costs of resistance.
But people continue to resist, often at a serious cost. Danielle Sassoon, Acting Assistant US Attorney for the Southern District of New York, was far along in developing a high flying conservative legal career. But she refused to sign a motion to dismiss a corruption case against New York Mayor Eric Adams, when asked to do so. The obvious and easy thing to have done would be to sign. Sassoon, explicitly considering her professional oath and obligations, resigned instead, writing a long letter to explain why. A member of the Federalist Society, with degrees from Harvard and Yale, and two prestigious clerkships with conservative jurists (J. Harvie Wilkinson and Antonin Scalia), she was putting a lot on the line–but she was also extremely well-positioned to survive even in exile from the Trumpians. Seven young lawyers in the Department of Justice joined her, but there’s always someone willing to do the dirty deed. As Hagan Scotten, one of the lawyers who quit rather than comply, put it:
“Any assistant U.S. attorney would know that our laws and traditions do not allow using the prosecutorial power to influence other citizens, much less elected officials. If no lawyer within earshot of the President is willing to give him that advice, then I expect you will eventually find someone who is enough of a fool, or enough of a coward, to file your motion. But it was never going to be me.”
Every act of resistance–or visible compliance–matters, affecting how hard it is for the next person in line to resist. Sassoon, Scotten, and their colleagues exercised their responsibility with enough integrity–and flare–to make it a little less scary and difficult for someone else to violate their professional obligations in the service of fealty to the Trump Administration.
Don’t expect all lawyers to follow the model.
Trump has forced similar choices upon the largest, richest, and most prestigious law firms, issuing orders to punish three large firms, Paul Weiss, Perkins Coie, and Covington and Burling for offenses that would best be descried as normal legal work for people Trump doesn’t like. Trump’s orders stripped security clearances, banning firms from government contracts, and restricting lawyers in the firms from entering designated federal buildings. All of this makes it harder–or impossible–for the firms to represent some of their clients.
Perkins Coie and Covington and Burling have signaled resistance, with an endorsement from the American Bar Association. Perkins Coie engaged representation from another large firm, Williams and Connolly, and filed a suit against the government. Now Williams also risks Trump’s wrath and wary clients’ flight. Perkins is also posting updates from the case on its website, along with an explanation for its decision. A long expensive and difficult fight now looms.
But Paul Weiss cut a deal with Trump, who reversed the Executive Order affecting the firm in exchange for the promise of $40 million dollars of pro bono services for causes that Trump cares about. Trump rescinded the strictures on the firm.
To be sure, fighting Trump’s initiatives is costly. Some clients will leave or be turned away, and managing partners care about the financial health of their massive firms, hundreds of lawyers and many more other employees.
Other large firms are watching the pressures and the choices as they make their own decisions about taking sides. Some have issued statements of support for Perkins, the traditional obligations of attorneys, and the rule of law–even acknowledging that resistance may have costs. Anna Bower, an editor at Lawfare, has maintained a thread of BigLaw acts of resistance. Meanwhile, Trump has targeted other firms for a shakedown.
It’s a fright night Halloween scene. If you knock on one door and get candy, you’ll keep walking and knocking until stopped.
Choices matter. Recognizing that there are choices is the first critical step.
Politics Outdoors 