Fighting Mendacity in Politics: The Role of America’s Lawyers

Fighting Mendacity in Politics: The Role of America’s Lawyers
Preview of a paper by Heidi Li Feldman, to be presented at Resurrecting Truth in American Law and Public Discourse: Shall These Bones Live?, Duquesne University School of Law, November 16-17, 2017.

American lawyers know much about truthfulness and untruthfulness. Their education schools them in these subjects, and virtually every area of legal practice involves understanding them. American lawyers must learn the nuances, forms, and mechanisms of mendacity because so much law prohibits lying, fraud, deceit, misrepresentation, and more. Lawyers must counsel their clients regarding requirements of honesty, accuracy, informativeness, and disclosure. Lawyers themselves have professional obligations of candor, particularly towards tribunals.

Their professional status and their familiarity and skill with truthfulness and untruthfulness bestow obligations on American lawyers in the current political climate. Social media is rife with misdirection and disinformation; the sitting U.S. President is a known serial dissembler; high ranking officials deny basic science; government departments hide and remove information from their websites. Mendacity, evasion, deceit in aid of power are everywhere in evidence.

Under these conditions, American lawyers should identify, expose, and explain untruthfulness. They should force truthfulness from politicians, elected and appointed officials, commentators, pundits and activists. In short, America’s lawyers should act as advocates for truthfulness in political discourse. My arguments for the special role of lawyers will not rely on strong metaphysical or ontological claims about truth, values, or law. With a mundane approach to truth, I will explore the role of truthfulness in subverting ideology and in grounding dissent from power. Via examples, I will demonstrate how lawyers’ knowledge and skills can especially aid in these efforts.

Lawyers are to the current onslaught of political mendacity what physicians are to public health emergencies. Responsible, democratically accountable governance is impossible without great measures of truthfulness. While all citizens should, therefore, strive for and demand truthfulness in politics, American lawyers, trained in the rule of law in the American constitutional system, owe that system their care and attention, marshalling their expertise in the cause of truthfulness in politics.

Fighting Mendacity in Politics: The Role of America’s Lawyers

Keeping the Injunction on Trump Travel Ban: Rule of Law Back in Play

On March 6, President Trump issued a replacement Executive Order (EO) for the previous ones he had issued regarding immigration from several countries. He did this, it seems, to address concerns about constitutionality of the first EO. The Department of Justice immediately filed a “Notice” with the United States District Court in the Western District of Washington, one of the federals court that had issued a nationwide emergency injunction against enforcement of the original EO. This injunction remains in force as I write this post, having been upheld by the Ninth Circuit. The Executive Branch is taking the position that the new EO differs from the old one in ways that mean it can be enforced effective immediately. The Attorneys General of Washington and Minnesota, now joined by Attorneys General from New York and Massachussetts, oppose this for two, related reasons. The AGs argue, on behalf of their respective states, that 1) the new EO largely duplicates the old EO and 2) that the Executive Branch cannot simply deem itself no longer subject to an injunction issued by the Judicial Branch. That second claim is strikingly important even though it does not go to the merits of the first claim or to the question of the ultimate constitutionality of either EO. Rather, the second claim goes to the question of whether the Executive Branch must demonstrate to the District Court that the original injunction does not apply to the new EO based on the law applicable to modifying or removing federal injunction or that such modification or removal should be entered by the District Court. In other words, the AGs claim that President Trump is seeking to free the Executive from the injunction by fiat when in fact he does not have the authority to do this.  Below is the Notice filed by the DOJ on behalf of the President and the AGs brief in response, annotated by me to assist nonlawyers in following each side’s arguments.

Notice of Filing of Executive Order

Response to Notice of Filing of Executive Order

Keeping the Injunction on Trump Travel Ban: Rule of Law Back in Play

For my black law students on the day the U.S. Senate confirmed Jefferson Beauregard Sessions as Attorney General of the United States

As a law professor, I engage in scholarship and I teach students. The two aspects are intricately intertwined for me. My teaching is the better for my scholarship and my scholarship is the better for my teaching. My students, individually and as groups, have raw smarts, dedication, and – almost aways – good humor and joy. Jefferson Beauregard Sessions cannot impair my students’ intelligence or their capacity for hard work. But he can, especially for my black students, interfere with their good humor and joy. That is a sin, a shame, a scandal.

Any American with Jefferson Beauregard Sessions’ record on racial justice – civil rights, voting rights, ballot access – simply does not understand and certainly does not care about legal justice in the United States of America. It is intolerable to me that my black law students have to put up with their government officially embracing white supremacism in the United States of America Department of Justice – in the cabinet office for justice! – in 2017. These young women and men have come to study law, the vehicle for operationalizing justice in our country, here in Washington, DC. Now, right around the corner, sits a DOJ headed by a man who demonstrably fails to comprehend legal justice in the U.S. context.

How can that not rob them of joy and good humor?

They are robbed. But joy and good humor can be salvaged and revived even in grueling circumstances. This I do know.

I cannot, individually or immediately, change the personnel in the White House, the Department of Justice, or the Congress. I most certainly can, right now, stoke the enthusiasm of all my students, and especially my black students. I can laugh with them, make them laugh. I can show them the beauty and majesty of law and teach them about the women and men in law who are the antithesis of all that is wanting in Jeff Sessions. I can notice the grace and aplomb shown by my black students in these trying times and applaud them for it.

By cultivating the joy and good humor my black law students carry within themselves, I will be the lucky one. My efforts to bolster their reserves in the face of this wretchedly painful time for legal justice in the U.S. will fortify my own enthusiasm, my own higher spirits. With all my students, but especially with my black students, we will together use our smarts, our tenacity and our great high spirits to further our knowledge of law and to build legal justice in this country and beyond.

For my black law students on the day the U.S. Senate confirmed Jefferson Beauregard Sessions as Attorney General of the United States