Alexis de Tocqueville, the astute 19th-century French observer of America, recognized the key role lawyers played as restraints on the dangerous potential of a public carried away by populist passion. That role is more important today than ever.
Tocqueville’s still-relevant, 1831 political chronicle of our young country, Democracy in America, states: “Men who have made a special study of the laws derive from occupation certain habits of order . . . and a kind of instinctive regard for the regular connection of ideas, which naturally render them very hostile to the . . . unreflecting passions of the multitude.”
In “De Tocqueville and the Role of the Lawyer in Society,” Phil C. Neal, mid-20th century dean of the University of Chicago Law School, elaborated by specifying that “skepticism, independence of outlook . . . [and] insistence upon knowing the facts” are among the “habits of mind” that lawyers develop.
On Thursday, we got word of a new book upholding the Tocqueville thesis. Geoffrey Berman, the Republican appointed by Donald Trump to replace Preet Bharara as the United States Attorney for the Southern District of New York, has a forthcoming memoir, Holding the Line. It describes Berman “pushing back against the Trump Justice Department’s blatant efforts to bring weak cases against political foes and squash worthy cases that threatened to tarnish allies and Trump himself.”
The presidency of Donald Trump was driven by the kind of “unreflecting passion” divorced from fact to which Tocqueville referred.
Berman “pushed back” in June 2020, when, in one of former Attorney General William Barr’s more embarrassing missteps, Barr announced erroneously that Berman was stepping down; Barr had privately failed to convince the then-SDNY US Attorney to take another administration position. Berman responded publicly that he had no intention of stepping down, embarrassing Barr and forcing Trump to fire Berman.
Berman’s apparent “sin”? He had initiated an investigation of Rudolf Giuliani, Trump’s lawyer and former SDNY US Attorney, for his role in the Ukraine debacle for which Congress impeached Trump the first time.
Berman was not alone among prosecutors who refused to go along with corrupt DOJ actions disconnected from fact or principle.
In September 2020, the highly regarded Nora Dannehy, top aide to former Connecticut US Attorney John Durham, resigned from Durham’s Barr-sponsored “investigation of the investigators”—those at the FBI and Justice Department who in 2016 had initiated the Trump-Russia investigation.
Dannehy did not explain her resignation, but friends reported that she had “been concerned in recent weeks by what she believed was pressure from Barr . . . to produce results before the election.”
If there was such pressure to fast-track results to help get Trump re-elected, Dannehy’s high-profile resignation likely played a role in derailing the plan.
The following month, Phil Halpern, who had successfully prosecuted important government corruption cases against two former Southern California Congressmen, Duke Cunningham and Duncan Hunter, resigned. His commentary piece in the San Diego Union was headlined, “I won’t work in Attorney General William Barr’s Justice Department any longer.”
Months earlier, in February 2020, 1,100 former DOJ officials signed a letter calling on Barr to resign after he intervened to lower line-prosecutors’ recommendation for the sentencing of Trump crony Roger Stone. Stone was convicted of lying to Congress to protect the then-President.
No one of these lawyers’ actions turned any tide away from the corruption of democracy that Tocqueville feared. But collectively, they demonstrate the role of those trained to believe in facts and the Constitution have in preserving it.
That role continues today, as the threats to constitutional governance mount. As Michael Luttig, the Bush-appointed former federal court of appeals judge wrote on Wednesday, the “Republican blueprint to steal the 2024 election” is in place and near-ready for prime time.
Courageous Republicans like Michigan insider Tony Daunt, who resigned Tuesday from the state’s GOP central committee and excoriated its members for being “cravenly loyal” to Trump and his Big Lie, continue to speak their truth.
But lawyers have a special role. More than 500 have already signed a public statement entitled “Hate Won’t Win,” sponsored by Lawyers Defending American Democracy, to which I am “of counsel.”
The statement urges lawyers to speak out publicly in response “to hate used as a weapon in campaigning and governing,” and against the banning of books” as well as to “defend teachers who seek to educate our children in an atmosphere free from censorship and fear of reprisals.”
Tocqueville got it right. Lawyers are trained to live in the fact-based world that right-wing culture wars and disinformation are now imperiling. We attorneys have a unique role in preserving our constitutional republic.