Katy Glenn Bass:

Hello and welcome to Lawyering Without Law, a new podcast by the Knight First Amendment Institute, where we explore the unique and important role that lawyers and the legal profession play in defending democracy or facilitating a country slide into authoritarianism. I’m Katie Glenn Bass, I am the research director at the Knight Institute. My co-host Madhav Khosla is unfortunately out sick this week, but we still have a great show for you, featuring our guest, Professor Deborah Pearlstein. Professor Pearlstein is the director of the Princeton Program in Law and Public Policy, or P*Law for short, and Charles and Marie Robertson, visiting professor of law and public affairs at Princeton University. Her work focuses on constitutional law, democratic governance, civil liberties, and executive power, particularly during periods of political instability and institutional stress. In this conversation, we’ll talk about the forces that shape lawyers’ sense of professional identity, the current state of democracy in the United States, and how lawyers should respond in moments of institutional strain. Deborah, welcome to Lawyering Without Law. Thank you so much for joining us today.

Deborah Pearlstein:

Thank you so much for having me. I’m delighted the podcast is up and running.

Katy Glenn Bass:

Oh, thank you. I have really been looking forward to talking to you in particular because I know you have been thinking about this specific set of questions about lawyers’ professional identity about the relationship between the legal profession and the rule of law for quite some time now, for longer than I have certainly. And I know you have a book coming out later this year called Losing the Law. So to start off, could you tell us about that book project and how it came about and how it has developed?

Deborah Pearlstein:

Yeah. So I started working on this book project I think back in 2022 or ’23, but in fact, it grew out of work that I had done for many years on constraints on executive power. And I was interested in, among other things, the role of lawyers in the executive branch as a constraint or not on political decision making that the executive made. And I had done a fair bit of work on that question. And then as we saw the first Trump administration unfold and especially in the catastrophic end when there were not only all kinds of challenges to the election in court. But the post-election series of efforts to challenge the election culminating obviously in the January 6th attack in 2021, lawyers were front and center in that conflict. And for better and worse, that is to say, if you think about the legal profession, and I think it’s important to talk about the whole profession, which includes not just lawyers, but judges and law students, from soup to nuts, so to speak. There were really very, very different responses and it did not at all track partisan lines per se.

So we saw many, many lawyers and judges including in the Department of Justice, including lawyers who had been appointed by Trump himself in the first administration. Plenty of Republican appointed lawyers on the bench and obviously Democratic lawyers and judges as well. Pushed back very hard and in critical and ways at pivotal moments and were instrumental constraints, not just on executive power, but if you think about this in constitutional democracy terms, were the bulwarks. These were the guardrails of constitutional democracy. They played a central role in helping prevent the United States from sliding into a very different system of government entirely. So that was one set of lawyers. And on the other side, or on the other hand, you saw very different kind of lawyer. And at the most absurd end, there were lawyers like Rudy Giuliani, but there were also people in the Department of Justice like Jeff Clark and others who lied, who not only lied publicly and repeatedly about what actually happened and what they knew and what the evidence showed, but who also lied to courts about what was happening.

And we had thanks in part to congressional hearings and many other sources, a lot of information about those particular individuals, what led them to do what they were doing, why was it that some lawyers seemed to feel really bound by legal professional norms and some simply didn’t seem to feel that way. And that was really the impetus for writing the book, which ultimately I anticipated that the book would conclude with a chapter or a couple of chapters on the dangers of what my friend Brad Wendell would call the bad lawyers of 2021. But in fact, what it concluded in is here is how we see the effects of what has given rise to this category of lawyers playing out in massively accelerating Democratic backsliding in the United States under Trump 2.0.

Katy Glenn Bass:

Yeah. And we are still right in the middle of all of that.

Deborah Pearlstein:

Absolutely.

Katy Glenn Bass:

So I know in your work you traced the roots of the current situation back to the Reagan Department of Justice. You trace a line from that up to the lawyers who helped Trump try to overturn the 2020 election. So for listeners who haven’t followed that history as closely as you have, what are the links in that chain that people should know about?

Deborah Pearlstein:

There are a lot of different links there. One is after the Watergate scandal in the 1970s, there was a real revolutionary moment in the legal profession. When it became clear as we saw through criminal prosecutions of lawyers, a role that lawyers had played in aiding the president’s corruption. And the legal profession across the board really said, “Okay, what can we do in the profession to prevent this from ever happening again?” One of the major sets of reforms happened in the Department of Justice itself that were designed to check the ethics of justice department lawyers. So there were a set of offices created inside the Department of Justice. The ABA issued a revised set of model rules of professional responsibility, making clear that its basic ethical rules for lawyers also applied to lawyers who were parts of organizations including the government. And eventually it became clear that the courts were going to enforce these rules or were going to attempt to enforce these rules.

But even as all these constraints were being put in place and adopted really widespread ways by the profession. In the early Reagan administration, there was an effort to design a theory of executive power that had the effect of calling into constitutional question all of these constraints on executive branch lawyers. The constitutional idea was that the executive had to have total control over all personnel and policymaking inside the executive branch. So even if Congress passed a law that said, for example, all government attorneys are bound to the same rules of professional ethics as every other lawyer in the state where they practice, even that would pose a constraint on the president’s ability to tell lawyers they have to do whatever the president wants them to do.

And this played out in a variety of ways inside the Department of Justice as there were repeated efforts, for example, to limit the office called the Office of Professional Responsibility that did end up getting charged with supervising legal ethics on basically this separation of powers grounds that this professional apparatus is an intrusion on the president’s total control over the executive branch, even if that apparatus is designed to ensure truth telling by lawyers. And it turned out that those efforts, while they were failing in the courts throughout the 1980s, and really in key respects, haven’t succeeded in the courts until very recently, were having tremendous impact inside the Department of Justice where the ethical checks that were created were really kneecapped from the beginning.

So as major legal ethics scandals unfolded, especially beginning in the early 2000s. Those scandals, efforts to turn Justice Department hiring into a partisan exercise in a way that the law precluded it from being, efforts to deal with lawyers who lied. The lawyers who did those things met with no consequences, certainly no formal consequences inside the Department of Justice. The apparatus was strained, it was inadequate, it was incredibly slow and in part because of the obstacles were completely ineffective in dealing with those challenges.

And that had two consequences. One was, of course, there was no actual accountability for lawyers who were engaging in ethical misconduct over a period of years. And the second consequence was a much broader normative consequence for the profession. Justice Department lawyers have long been perceived as at the very top of their profession. These jobs are sought after they are prestigious, they’re very hard to get. And they have included and been peopled by some of the greatest lawyers in the United States and in US history. And when it became clear to the profession that it was possible that putting partisan interest or political gain ahead of professional responsibility could have some career benefit, it created this incentive loop that I think is not wholly, but at least partly responsible for where we are now.

Katy Glenn Bass:

Thank you. That’s a really great history. And I will just say for the listeners, I have had the privilege of reading a few excerpts from the book and it is just beautifully written and really fascinating material. So I look forward to reading the whole thing later.

Deborah Pearlstein:

Thank you.

Katy Glenn Bass:

So going back to the there’s no lying in law rule, is that still the rule?

Deborah Pearlstein:

It is absolutely still the rule. And maybe I should be a little bit more specific. It’s not actually called by anybody but me that I know of the no lying law rule. But there are a host of constraints on lawyers that are designed to ensure truth telling. And here I’ll say what one classic example of that rule is, but let me here just distinguish this maybe from the way we think about the speech rights of elected officials or anybody else, of you or me where we not licensed members of the bar. So everybody pretty much has a First Amendment right in the United States to say whatever they want with very rare exception whether it is true or false. And so the president himself or any official who works for the president can go out on the stump on a campaign trail or call a press conference or whatever it is and make up almost anything.

And not only are there no legal consequences for that, that is a First Amendment protected right that that person has to say things even that are untrue in almost all circumstances. If you or anybody else walk into a courtroom and take an oath and lie under oath, you can be criminally prosecuted for perjury. If a licensed lawyer like me walks into court and lies to the court, whether we are under oath or not, that is violating what the Bar Association rules call the duty of candor. And that particular rule says it is a violation of the rules of professional responsibility to lie to a tribunal. And lawyers have, you could think about it as limits on their speech that other professionals don’t have. But if you think about it not in terms of people or individual rights, but in terms of the function of the courts and the function of the legal system, one of the central norms that distinguishes law from politics in the United States is law remains or is supposed to remain. And by rule, a host of rules remains a reality-based profession.

Without that constraint, there become many, many, many fewer differences between law and politics and it very quickly loses its not only authority but legitimacy as a separate system, right? Nobody elects us, nobody elects judges. Why should we listen to them? And the reason is presumably doing law is different from saying whatever we want or doing politics. Okay. So that’s where the no lying in law rule comes from.

Katy Glenn Bass:

I think that’s a really important distinction to make between law and politics. The fact that the legitimacy of the legal profession rests on this idea that lawyers are following this strict set of ethical rules and that they respect those rules. Some of the most effective resistance we have seen to Trump in both his first and second term has come from lawyers. Has been in the first term, it was the lawyers in the room who said, “No, you can’t do that.” Second term, we have fewer of those lawyers in the room. We do still have a lot of lawyers within the government who have chosen to resign rather than to go along with things that they believe to be illegal or unethical. We have judges who are rejecting claims that are meritless, the presumption of regularity that judges have long afforded to the government in cases brought before that is really breaking down before our eyes.

So how do you sort of measure these things? I fully agree with you that a lot of the behavior that we are seeing among lawyers is really alarming. But there is also this group of lawyers, this behavior that we see from lawyers that is what we would expect from people who are taking ethical obligations seriously.

Deborah Pearlstein:

So I think that’s a really important question. And in a chapter of my book that I rarely in advance, rarely give to people who are lawyers or know anything about law to read. It turns on why lawyers would behave that way in the first instance, right? In other words, when I talk to my political science colleagues, the notion that a court might abide by an earlier ruling because they believe that they’re supposed to, unless there’s a really good reason not to and that that’s a sufficient reason. Find that almost impossible to believe, right? Almost impossible to believe that there is some independent, whether you think about it as a moral or philosophical or professional code or set of beliefs that distinguishes law from politics. I think there are at least three. One of them we’ve already talked about and that is what I’ll call the norm of legitimacy, the idea that law is different from politics because you can’t lie.

But there are also two other norms that I think are really pretty important in this context. One is what I’ll call a norm of stability. And if you’re a member of Congress and you’re elected, often you’re elected with a mandate to change how things are. You’re certainly not elected with any responsibility or expectation that you will pay much attention or need to pay much attention to what the last guys in that office do. In fact, it may be central to your job to change what we’ve been doing and we don’t call that precedent busting or norm destruction or anything else. We call it usually democracy, right? That’s what the job is supposed to be. But lawyers and judges are trained from day one of law school to start with, “Well, what is the law now?” Right?

Katy Glenn Bass:

Mm-hmm.

Deborah Pearlstein:

Not first. How do we apply it in this case? How might this case be different? But first, either what a judge has said before, what a legislature has said before, what your own court has said before and that’s where you start. And that doesn’t mean that that is the end of the inquiry, but it is the beginning of the inquiry. And if you’re going to do something different from what’s happened before, you have to explain why and what’s different. And do so in a way that is justifiable and persuasive not only to a judge or sometimes multiple judges, but that the judge can be persuasive in explaining it publicly as well. That’s the normal stability. And it’s not just there in stare decisis, but in every body of law. If you think about the law of contract, there are a host of rules that say, “Stick to what the parties agreed to unless there is some exceptional reason not to.”

In criminal law, we have a million of these rules and norms like the expos factual rule. You can’t prosecute somebody for something that wasn’t a crime at the time they committed it because that would be unfair. So there are a host of examples of this norm of stability. That really distinguishes law practically I think from almost every aspect of policy and politics and in key respects. And then there’s one last norm, that is what I’ll call a norm of modesty. And this is the idea that is of the last 120 years plus in the United States or more, that recognizes that law is not a science. We’re not searching for some physical truth in the universe. It’s not like looking for laws of physics, it’s really an exercise in interpretation. Even the simplest laws and there are a million debates we can have about interpretation and procedural rules that it surrounded and a host of other things.

But if that’s your understanding and that has been the overwhelming understanding among lawyers and judges for, as I said, well, over a century. Then you probably have a sense of modesty about your role, especially if you’re a judge. If you believe that the enterprise you’re engaged in is not handing down some either religious or physical or mathematical truth about the universe, but is really just doing your best to read a text based on a lot of different kinds of evidence. Then probably you want to develop norms that say, “I’ll decide less rather than more.” I will just answer the question of this dispute in this case, as opposed to trying to opine much more broadly on what I think the cosmic universe requires or even the separation of powers. And those things I think are the norms not only that most lawyers really, really believe and judges, but that are and have been most susceptible to attack and most subject as I described to erosion in the last 30, 40 years.

Katy Glenn Bass:

Thinking about the erosion of those norms, I know one thing that you touched on earlier and you’ve touched on in your work as well is the influence of the conservative legal movement over the course of these last decades and certainly we’re seeing it now. And often that’s shorthanded as the Federalist Society or FedSoc, but as you discuss, it’s a much broader set of influences than that. But can you give us a little more of the history there and the influence that that movement has had on these norms that you’re talking about?

Deborah Pearlstein:

Yeah. And really two different questions.

Katy Glenn Bass:

Sure.

Deborah Pearlstein:

So let me just start with the thumbnail history of the conservative legal movement, which is born in the early 1980s. Most folks date it to this conference that was held at the law school that was organized by students and some law professors, but it quickly in part because of Reagan’s election and in part because of a lot of interest in outside funders becomes a movement of lawyers. Really elite lawyers to start, beginning in law schools who quickly become the young lawyers of the new Reagan administration and law professors who very quickly go on to be judges appointed by President Reagan. And the original goals of the movement are essentially identical to the goals of the then Republican Party.

So 1980s, Reagan, we are going to roll back federal regulation. We’re going to get government out of the regulation of private business on the one hand. And on the other hand, sort of the deconstitutionalization of rights that we think are problematic. And that is everything from criminal procedural rights like Miranda versus Arizona. You have the right to remain silent to obviously individual rights like the right to abortion under Roe versus Wade and a host of constitutional decisions, including racial equality decisions that are in between. And that’s really the elected goal, the platform goal of the Republican Party. And those are the kind of policy goals that the legal movement embraces.

A central reason why there’s a legal movement. And over time, this grows up not just from this very elite group, although there still is a very elite core of law students and law faculty and federal judges and Justice Department and other federal lawyers. But in part through the success of organizations like the Federalist Society becomes there are chapters of conservative legal movement in the FedSoc in every law school in the country over the ensuing years. And a huge growth in conservative public interest groups and litigation shops and increasingly law firms and others. And obviously a growing number of these movement lawyers who are appointed to the federal bench over this period of time.

But the reason it becomes a legal movement in the first instance is because it’s very clear from the beginning, even as Reagan is elected president and is reelected overwhelmingly in 1984. So there is huge popular majority in principle for this political agenda. It is clear to this group that it cannot be achieved through ordinary electoral means. In order to get rid of the administrative state to roll back federal regulation, the most direct route would be go to Congress and get them to gut the EPA, for example, or whichever other regulatory agency you don’t like. But in the 1980s, Congress had been in the uninterrupted hands of Democratic majorities for the previous 50 years. And even if the Republicans won a majority of organizations and agencies like the EPA, were pretty popular with people and they didn’t think they were going to be able to do it that way.

So what they needed was a theory of constitutional power that said, “Actually Congress doesn’t have the power to tell executive branch agencies what to do, even though Congress created the agencies. Really, this all needs to be about presidential power because the presidency we can win.” And that was on the regulatory side. And then on the right side, all of these rights from Miranda versus Arizona to Roe versus Wade were not statutory. They were now constitutional rights. They were decisions of constitutional interpretation by the Supreme Court. Under Article 5 of the Constitution, you could go to the people, a super majority of the people and amend the Constitution if you didn’t like it. But again, most of these rules were extremely popular and increasingly so over this period of time so that seemed unlikely. And the only other way to get rid of Supreme Court decisions was to get them to overturn those previous decisions and not just one or two, but dozens or even hundreds.

And so they needed a theory that would justify for lawyers themselves and judges who continued to believe at this time in the norm of stability. That something in the Constitution not only allows us but requires us to overturn dozens of decisions at the Supreme Court and that those two ideas, unitary executive theory in the realm of executive power and originalism on constitutional meaning are where those ideas came from and when they began to take root.

Katy Glenn Bass:

Right. So I am wondering if you think that there is a comparable legal movement or even the beginning strains of one on the left. You could call it progressive, but I think even more broadly, just the left liberal spectrum. I also wonder, have you seen that historically?

Deborah Pearlstein:

Yeah, that’s a great question and there are a lot of different pieces there, but let me say maybe just a couple of things. First of all, there have absolutely been social movements, political movements, all kinds of movements before. And the conservative legal movement itself very self-consciously was based in its design in its early days on the civil rights movement and its tremendous success. Now they focused on the civil rights movement’s tremendous success in the courts, but one thing that really distinguishes what we now call the conservative legal movement from the civil rights movement writ large is the civil rights movement was always a multifaceted, multidimensional effort. The litigation strategy piece of the civil rights movement was always a part. And in the beginning, in the early 20th century, was a secondary part of civil rights movements strategies more broadly, which had huge legislative components and all kinds of other things.

And ultimately, of course, it was the legislative achievements of the 1964 Civil Rights Act and the 1965 Voting Rights Act through enormous majorities of Congress that actually succeed in... We’ll just take the Civil Rights Act. In getting decisions like Brown versus Board of Education that said, “De jure racial segregation of schools is unconstitutional.” Schools don’t actually start to desegregate until after the Civil Rights Act itself 10 years after Brown versus Board of Education comes down. So that movement, just that particular movement is much more through its history and especially through its most active decades tied to this multidimensional strategy that includes both litigation and popular strategies and all kinds of other things as well.

Okay. So it’s distinct in that way just from the most important comparable or potentially comparable social movement we might think of at the time that has courts if not uniquely in their target. At least one of their targets for achieving social change, for sure. But there’s another distinction that I think may be more relevant and that is originalism, but in popular terms of political terms originalism these days is thought of as code for conservativism. And I don’t think there’s ever been a kind of theory of legal interpretation that’s been more associated with a particular political party than this one, but it wasn’t just designed to achieve conservative outcomes. They thought originalist interpretation would make it more likely that the Constitution would be interpreted more narrowly, that you wouldn’t find, for example, a right to abortion in it. But it was also a very different kind of strategy of legal strategy.

So unlike the Civil Rights Movement that says to the courts and everyone else, you’re misinterpreting what equality means under the 14th Amendment, for example. And Brown vs Board of Education and a lot of the cases that flow from there are about equality under the 14th Amendment or under the 15th Amendment or the like. Here, regionalism wasn’t just a way of telling the courts you got particular decisions wrong, there is no right to abortion. In fact, it wasn’t about that directly at all. It was a way of telling the courts, “You’ve been doing the law wrong, all wrong.” It was a much more existential first order attack on how the courts did their business. And it had to be. They needed a theory that would support overturning generations worth of rulings that were already on the book.

So it wasn’t enough to just say you’re misinterpreting this clause or that clause. It’s you have been approaching the job of constitutional interpretation all wrong. The movement essentially carried a promise that the courts would start behaving in a very different way. And if the courts weren’t behaving that way, then they weren’t really courts at all. And that’s part of why I think this theoretical idea has become so important in destabilizing the norm of stability that is actually not about one political view or another at all.

Katy Glenn Bass:

I had actually not thought about originalism’s role in that way. That’s very insightful. I’m going to switch topics for a minute because I want to make sure we talk about the response of another set of lawyers, which is lawyers at big law firms under the second Trump administration. They are targeting firms that have employed people that Trump perceives as as enemies or firms that have participated in cases against Trump in some way. So it’s retribution just very straightforwardly. But what we see in terms of the response of those firms is that quite a lot of them immediately cut deals with the administration. Even firms who have not actually received an executive order targeted at them yet, they go ahead and they preempt orally make deals with the administration to try to get the target off of their backs.

And then you see a different set of firms that do fight back and that immediately file suits and are successful in winning injunctions against the administration enforcing these executive orders. So I’m just wondering, how do you think about that response in terms of the work that you’ve done in this broader sense of how legal profession identity shifts and how legal ethics understanding shift over time?

Deborah Pearlstein:

That’s a really good question. And I think in part, and in the first instance, what we’re seeing with the firms is primarily their belief that they’re responding to very specific business incentives. And in part, we can see that not only from what they say, which is that, but in the difference between how the different firms responded. So the firms that have sued to say the executive orders are unconstitutional, those firms are firms that primarily characterize themselves as litigation shops, as litigation firms, right? Their brand identity is fighter and that’s very much what they’re doing. Now they’re not solely litigation firms and so forth, but it’s certainly a central part of their brand. The firms that raced to sign deals. First and foremost, Paul Weiss, have increasingly become firms whose business is dominated by enormously high earning partners who work on mergers and acquisitions, who work with private equity firms and that business in particular quantities brings in enormous, enormous firm assets and it gives those particular high earning partners massive outside influence in their firms.

So even where you have firms. And I think this is the case for most, where a majority of partners and certainly majority of lawyers would say, “Well, this is obviously unconstitutional and illegal and the president can do this. And it’s completely unsurprising that four different federal courts have already concluded. This is unconstitutional and illegal and we should sue and not worry about it.” Are overwritten by really small and usually extremely hierarchical law firm management decision making processes that say, “Well, there’s a lot of money at stake.” And I think in this case, that’s the overwhelming piece that’s going on. Now there is unquestionably intersection with some pieces of the story that I tell about the erosion of norms. And it’s not so much these big firms themselves but the lawyers who are working in the administration now. And I think this is most visible in this really dramatic instance that happened with the Department of Justice in the defense of these executive orders themselves.

So four different firms sue, four different federal judges and four different courts in lower courts say these orders are obviously unconstitutional. No. And on the eve of the deadline for filing their appeal, is the government going to appeal these rulings or not? The government says, “We’re not going to appeal.” And all the firms say, “Great with us. Fine. These now go away.” And the day after that, the Justice Department reverses its position and said, “Actually, actually, we take it back, we are appealing. What happened there?” Well, maybe it’s the president himself, maybe it was the then attorney general. It’s unclear, but it seems pretty clear to most folks who pay attention to these cases that there was a reason why the Justice Department wasn’t going to appeal them and that’s because there’s no good case on the law there.

And the odds are they’re going to lose. The odds are overwhelming they’re going to lose even in the appeals court and even in this Supreme Court. But those aren’t the only lawyers working in the Department of Justice anymore. And Trump came to office for some of the reasons I have talked about already and others I can describe with this growing pool of available lawyers. Again, still a minority, the Justice Department’s having a hard time filling jobs. But an available and growing pool of lawyers who are willing to not only take positions that are not consistent with the law as it is, but take positions that are potentially in violation of their existing professional obligations because they believe that in fact that’s where professional advantage lies.

Katy Glenn Bass:

Thinking about what you just said in terms of some of the behavior that we’re seeing from lawyers within the DOJ right now and some of the willingness to go well beyond what the law actually supports. I want to think a little bit now about the state of the United States at present, but then also what comes next. But before I get there, thinking about where we are now, what we’re actually experiencing, there’s been a lot of discussion over how exactly to name this. Particularly when Trump first came back into power in 2025, there was a lot of debate over, is this authoritarianism, is this fascism, is this autocratic legalism? Does this feel more like Weimar Germany or Orban’s Hungary or something else? And I know you’ve thought about this as well and you have a somewhat different perspective on what exactly is going on here. So can you talk about that?

Deborah Pearlstein:

I do. And I don’t know that anybody living through any massive movement or political event in history is the best person to comment on what exactly is happening until 10 years or 20 after the fact. But I think there is enormous wisdom and enormous value in the comparative democratic backsliding authoritarian playbook framework for understanding what’s happening. I think it is enormously valuable in understanding the full scope of what’s happening. I think there is simply no question that the government now in power in the United States took lessons. I don’t mean metaphorically, I mean physically went to Hungary. The vice president embraced Orban. He came to the conservative legal forum, a series of conservative conferences here in the United States, very close with the Heritage Foundation. So there is just an enormous amount that we should be paying attention to there.

But that said, the strategy that this administration has pursued, which is Trump is not Orban. Orban’s a lawyer and smart. Trump does not seem to have that kind of control or is exercising that form of rigorous control over his government. There are some people in the Trump administration who embrace the Orban model, but not all of them. And Trump himself, I’m not sure cares in particular. And a huge part of what we’ve seen out of the administration is not affecting or achieving authoritarian or authoritarian moving change through law, but is ignoring law altogether. So whereas Orban came to power with a legislative majority or parliamentary majority and immediately started putting his parliamentary majority into effect by passing a huge number of different laws and amending the Constitution and all kinds of other things.

Here, Trump comes into office, Trump 2.0 comes into office also with legislative majorities in both Houses of Congress. And instead of going to his Congress, which was probably in the early days, prepared to do pretty much anything the president asked them. Instead of saying, I want to rescind funding to this agency and I want to build a ballroom and I want to... Whatever it is he wants to do, get rid of NIH or FEMA or any agency, they just start doing it. And they do it not just with respect to budget issues but policy changes and a host of measures that whether you call them authoritarian or just radical or whatever you call them. If they had just gone to their Congress and done them through law, wouldn’t have faced nearly the kind of legal pushback and termination that they have faced very often in the lower courts.

And you can see that playing out not just on a macro scale, but the briefs they’re filing, the executive orders they’re issuing. Again, not all of them in the solicitor general’s office, the one office in the Department of Justice that deals with the Supreme Court in particular may be a modest exception to that. But everywhere else and every other legal office in the White House and the Department of Justice and so forth, which is most of them, the quality of the work is poor and unpersuasive. And they can’t find smart lawyers to go work for them and they’re driving out or have pushed out the smart lawyers who they had, who most of them would’ve done most of the things that they asked them to do.

So it feels like a very different approach. It feels much more frontally authoritarian and that has benefits to some extent from a potential pushback point of view that is I think it’s much more publicly visible what’s happening in the United States. And whether the visibility is we’re turning authoritarian or we are turning toward policies with which I wholly disagree, it has made the president’s responsibility for those things incredibly publicly visible. So that’s maybe an advantage in thinking about the after times and people’s willingness to vote them out of office or think twice.

But the one last thing I’ll say here, and this does sort of tie it back to the earlier conversation that we were having. There’s a reason that they can find lawyers who are what I’m increasingly calling legal nialists. These are people who don’t think that law is or should be any different from politics. And part of these people come from this disaffected wing of the old, what had been the conservative legal movement. And you can see this in people like Mike Davis who breaks off from the Federalist Society during the last Trump administration and forms a new group called the Article 3 Project. And this is a group that says lawyers and judges are supposed to get results. They’re supposed to produce the policy outcomes we want. And if they’re not doing that, they’re not helping.

And so that view of law and what the role of lawyers is supposed to be and what the role of the courts is supposed to be comes from a wing of the conservative legal movement that felt betrayed by John Roberts when he voted to uphold Obamacare and felt betrayed by Neil Gorsuch when he voted to conclude that the Civil Rights Act actually also extends to prevent discrimination and employment on the basis of sexual orientation. And these singular decisions where you get maybe one conservative vote were viewed as massive betrayals by a group of lawyers who had grown up being promised usually in the form of originalism conservative outcomes or thought they were promised conservative outcomes. And that betrayal has had a cost and part of the cost is originalism’s not going to get what we want, neither will any law-like approach to doing this. The kind of change we need is post-constitutional, post-legal change. And those are some of the folks who are in leadership positions in the Justice Department today.

Katy Glenn Bass:

Okay. So I think that’s a really helpful way of thinking about what’s happening within the legal profession, this rise of a subset of the profession that adheres to the legal nihilism idea that there isn’t or shouldn’t be any distinction between law and politics or the rules that you play by to get the outcomes that you want. Which is pretty dark, honestly, if that’s where we are and if those are the people in the administration right now. But staying with that view, what does that tell us about what is needed to try to reform or enact consequences for the lawyers who are engaging in that kind of behavior?

Deborah Pearlstein:

Yeah. So I want to say one more thing that takes us even to a slightly darker place and then we end at your question.

Katy Glenn Bass:

Yes. Great.

Deborah Pearlstein:

And this goes back to the question you were asking earlier about, “Do we see any of this on the left?” And in the legal nihilist camp, this is the group that I was describing. I don’t know if I can call folks on the left a legal nihilist in this same sense. But there is a growing group on the left of legal scholars and some legal advocates on the left who think the judges we need to appoint are judges who will vote for our outcomes. Not people who are sort of moderates like Merrick Garland or Elena Kagan even, but people who are going to view the role of the judge as having a very specific moral valence and it is the moral valence that will produce the results that we want.

So there’s some important articles called movement judges, that’s that idea. And that is in some respects a very similar idea, it is a radically different view of what the role of lawyers and judges is supposed to be. Not so much lawyers, but certainly judges. Lawyers have always been advocates and supposed to be advocates. Judges are supposed to be something different and that’s an idea that we’re seeing gain increase in currency on the left as well. So it’s a worry. What does this mean about what we do going forward, right?

Katy Glenn Bass:

Right.

Deborah Pearlstein:

So my own view is a couple of things. I think there are institutional reforms that will help. I think that some court reforms of term limits and that kind of thing will help. I think that it is absolutely possible to reconstruct some degree of better ethical compliance mechanisms inside the Department of Justice and outside the Department of Justice that will help. I think it will be enormously valuable to do things like take the US Marshals Office, which is the group of officers who enforce court decisions and protect the courts from under the supervision of the executive branch where it currently sits and put them under the independent judicial branch where it should sit. So I absolutely think there are institutional corrections that can be made, but I also think it would be a huge mistake given these much longer normative trends that well predate Trump and that are explained by incentives other than Trump to view that as the limit of all we need to do.

There is a normative erosion going on and it starts in law schools and it goes all the way through the legal profession in what the value of law is and what the value of an independent legal profession is. And what the value or even idea of impartial judging is and a disbelief that any of those things are actually possible ever. Now part of that disbelief is driven by the most visible examples we see, how the Supreme Court behaves, for example. Which is a horrible example for a host of reasons, but it is nonetheless an incredibly powerful one because when most folks pay any attention to law, that’s the court they see. That court is exceptional in seven ways to Sunday, but it nonetheless drives this erosion of belief. That’s part of why court reform is among the institutional reforms that’s necessary, but it’s certainly not sufficient. And I think every aspect of the profession, including and especially beginning with law schools has a lot of work to do.

Katy Glenn Bass:

I certainly agree with that. And what about exacting disciplinary consequences for individual lawyers? How effective do you think sanctions like disbarment or other forms of sanction are for deterring conduct that really violates democratic norms?

Deborah Pearlstein:

Yeah. So I think having that there is incredibly important and preserving a mechanism as independent as possible. A mechanism for attorney discipline is incredibly important, especially as applied to these baseline rules like the no lying in law rules, the rules that are uncontroversial within the profession broadly speaking. And I think there are ways of strengthening and rendering more independent that system as well that are at the level of institutional checks. But there’s a caution there as well. And that is as we’ve seen this evolution of the profession and here the conservative legal movement is part of the story gain. It is today possible to proceed on a professional track from the day you walk into law school through the day you retire in your career, whether your career ends as a judge or as a lawyer or in any place in between, to proceed on an entirely partisan track? To work for a conservative law journal, to go to work for a conservative public interest journal, to go to work for a firm that leans conservative to live in that universe entirely.

And it’s increasingly possible to do that on the left, although there are multiple tracks as opposed to a singular track. And if that’s the case, and especially again on the right where there is so much money and so many resources. One of the reasons the Justice Department failure to respond to ethics crises of the 2000s mattered so much wasn’t just because they didn’t suffer formal consequences, the lawyers who violated ethics also had enormously soft professional landings. So even the ones who faced disciplinary consequences could go back to tenured professorships or could instead of practicing law as a licensed attorney, have some other position or even be nominated to the federal bench where licensure by a bar isn’t required to practice as a federal judge. And that availability of soft professional landings of whatever shape. But if you’re employed and you’re well employed, some of the bad lawyers of 2021 went to work for the new Trump administration, law licensure notwithstanding.

The existence of that possibility really undercuts the potential value of professional discipline. We can disbar you and you will still have a job is not a good case to be made. Now again, those are some exceptional cases, but it’s a model we’re seeing replicated repeatedly. So I think bar discipline is a critical element, but it is necessary and not sufficient to the broader regime of normative reputational checks that we have a lot to do to reinforce.

Katy Glenn Bass:

Yeah. The reputational checks is a good way to put it. That was something that I was struck by as I was reading one of your chapters is this, the availability of the soft professional landing. It’s both absolutely right in terms of muting the effect of any of the other consequences that we might be able to enforce. But also probably one of the things that I am most pessimistic about in terms of our ability to change it significantly, just coming out of this administration and thinking about where some of these lawyers are likely to land, I would hope that they will not be able to return to or take up posts at top law schools or fellowships in prestigious institutions. But it is too easy for me to envision how that might be the case for many of them. I think that will be difficult in terms of sending a message.

So you talked earlier about the efforts to reform government lawyering within the DOJ after Watergate and how they were almost immediately undermined and eroded by people in those institutions. So given that history, is there any structural reform that we can enact that you believe would be more durable or are we Sisyphus where it’s going to be a cycle, it breaks down and then we build it back up and then it breaks down again and we continue that way.

Deborah Pearlstein:

So that’s a really important question and there’s good news and bad news. The good news is I really still believe and we’ve seen in the number of Justice Department lawyers who have fled rather than violate the professional responsibility, that vast majorities of lawyers in the profession still hold to the normative distinction between law and politics and the normative rules of the profession, the ethical rules of the profession that we’ve been talking about. So the ability to repopulate or reconstitute or reconstruct truly a Department of Justice and government lawyering I think there’s a real moment here. I think there’s an opportunity. I think there are many, many thousands of lawyers who are appalled with what has happened and they are on the right and left. And so I see a lot of hope there.

In terms of though enacting sort of more formal reforms and setting aside for a minute, the ethics checks that we were talking about. So you could take that ethics role out of the bar associations in particular and attach it to the courts in a way that would allow them to in a more expedited way, get through imposed ethical sanctions on attorneys who play these kinds of games. But so setting aside that kind of discipline, what if you wanted to codify, so enact into legislation, the rules that used to exist by norm and by Justice Department manual, that there should be limited context between the White House and the Department of Justice. That you should not be able to bring a prosecution or launch a criminal investigation against an individual solely because you oppose that person’s politics or because that person is a political enemy or the kinds of things we are seeing now with increasing frequency out of this administration.

You could enact a law that says what previously just executive branch manuals said, which is don’t do that. And enacting a law I think is probably a really important strategy and a really important move. There is one giant caveat there and it’s a real unanswered question in principle. But now the Supreme Court has embraced the unitary executive view that was lurking behind the scenes of the Department of Justice in the 1980s. The view that because the president has to have total control over all personnel under his supervision, that includes all attorneys who work for the government, who work for the executive branch. And to the extent Congress imposes restrictions on how those attorneys do their job, even if it says as a matter of ethics, “No lying.” That too is a constitutional infringement on the president’s power to direct personnel under his watch. If we pass a law codifying those kinds of previously norms, they will be challenged by someone on the right as a problem under unitary executive theory, under the president’s constitutional power and that challenge will go to court and ultimately the Supreme Court.

Supreme Court has, especially in Trump versus United States, now written a lot of language that suggests that exactly those kinds of laws might be problematic exactly in the context of prosecutorial conduct. And my view is while we draft that legislation to codify those standards, we should also draft a constitutional amendment that says, that is, you could call it the Unitary Executive Amendment or the Anti-Unitary Executive Amendment, but that returns us to some rational place of executive power and Congress’s role as the first branch. And for that matter, the court’s role, because these people are ultimately officers of the court in preserving the relative autonomy of law from politics in the United States. I know that many of the constitution is hard. This is the work of generations, it is a 40-year project at best, but so too was the conservative legal movement. And with a movement willing to invest the time and resources, as we’ve seen, the payoffs can be staggeringly large.

Katy Glenn Bass:

Okay, I love that. That’s actually a great note to end on because that is a truly creative proposal for reform that I have not yet encountered, but actually would address a lot of this. And you’re right, it is the work of generations. This is not something that the next Congress could just take care of for us. I think that’s a great idea. Deborah, this has been a really wonderful conversation. Thank you so much for coming on the show and for talking to us about all the work that you’re doing.

Deborah Pearlstein:

Oh, it’s been my pleasure. Thank you so much for taking the time.

Katy Glenn Bass:

And that’s it for this episode of Lawyering Without Law. Join us next time for a conversation on executive power and the war on terror with Alberto Mora. Lawyering Without Law is a production of the Knight First Amendment Institute at Columbia University. This episode was produced and engineered by Dustin Foote, Fact Checking by Ashna Agarwal. Candace White is our executive producer. Our music comes from Envato Elements. The art for our show was designed by Jay Volmar. Thanks to Deborah Pearlstein who joined us for this episode. Lawyering Without Law is available on Apple, Spotify, and wherever you listen to podcasts. Please subscribe, share, and leave a review. We’d love to know what you think. To learn more about the Knight Institute, visit our website, knightcolumbia.org. That’s Knight with a K. And follow us on social media. Bye for now.

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