Trump: Orders ruled unconstitutional
The Law Society and Bar Council are among 20 European bar associations to back an amici curiae brief supporting four US law firms in court action over executive orders issued by Donald Trump.
The Law Society of Scotland and the CCBE – which represents lawyers at an EU level – are also signatories.
The US Court of Appeals in Washington DC is hearing a joint appeal by the Department of Justice against four court rulings that sanctions against law firms Perkins Coie, Jenner & Block, Susman Godfrey and WilmerHale were unconstitutional and unlawful.
The orders had told government officials to terminate, where possible, government contracts with the firms or any of their clients, and also sought to limit the access of their staff to federal government buildings and meetings with officials.
In the Perkins Coie case, US District Judge Beryl Howell ruled that the executive order amounted to “unconstitutional retaliation”; the Seattle-headquartered firm had acted for Hillary Clinton
It was clear, she said, that the firm was targeted because it “expressed support for employment policies the president does not like, represented clients the president does not like, represented clients seeking litigation results the president does not like, and represented clients challenging some of the president’s actions, which he also does not like.
District Judge John D Bates said the order against Jenner & Block “casts a chill over the whole of the legal profession”.
The 52-page brief submitted to the court argues that the executive orders threaten the independence of the legal profession and thereby the rule of law.
It says: “History offers stark lessons. Over the past century, periods of democratic diminution in Europe and elsewhere have been marked by efforts to discipline, marginalize, and control the bar.
“In Nazi Germany, dismantling the independent bar was an early step in subordinating the legal system to the regime. More recently, a troubling pattern of interference with the profession has emerged in other regions.
“For instance, in Russia, Türkiye, China, and Hong Kong, as well as in European countries such as Poland, governmental pressure on lawyers representing politically sensitive clients has accompanied broader efforts to weaken judicial independence and limit effective legal challenge to state action.”
The bar associations stressed that they were not equating the US government with such governments, but wanted to illustrate the importance of resisting attacks on the independence of the legal profession.
“History shows that suppression of the legal profession is both a symptom and an instrument of democratic decline. And while the destruction of democratic institutions is often swift, reestablishing the rule of law and rebuilding trust in the legal system is a long and fragile process.”
The other supporters of the brief are national and major city bar associations from Belgium, Finland, France, Germany, Lithuania, Luxembourg Norway, Poland, Spain, Sweden and Switzerland.
The court has received a host of other amici curiae briefs, including one signed by 800 US law firms and General Counsels United, a collective of more than 800 general counsel.
Patricia Thom, president of the Law Society of Scotland, said: “We are standing together with bar associations from across Europe and the UK in support of our American legal colleagues and the important principles that are a stake in this case…
“Our collective submission in this case will provide the court with global context on the importance of these values. It is right that we provide wider perspective and support in this case because of the United States’ long history as a beacon for the rule of law alongside Scotland, the UK and others.
“Lawyers around the world must stand up for the independence and integrity of our legal and public institutions and for the values and principles that underpin them. Democracy and the stability and prosperity it brings rest in no small part on their continuing relevance.”
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