May 8, 2024
Losing the Law:
Presidential Elections and the Role of the Legal Profession
Deborah Pearlstein
Director, Princeton University Program in Law and Public Policy
Losing the Law:
Presidential Elections and the Role of the Legal Profession
Deborah Pearlstein
Director, Princeton University Program in Law and Public Policy
Introducer: George Bustin/ Speaker: Deborah Pearlstein
Minutes of the 29th Meeting of the 82nd Year
John Cotton presided over the meeting. Julie Denny led the invocation. Marsha Levin-Rojer read the minutes of the preceding week’s meeting. There were 5 guests. Earlene Baumauk brought Steve Goldstein; David Mulford brought David Youmans; Patricia Taylor brought Toby Taylor and Alan Discullio; and John Cotton brought Raj Kohli. Steve Goldstein is applying for membership. Membership Chair Teri Lemischka read the names of ten people who are applying for membership; they will be voted on at the 15 May meeting. The slate of new officers and committee chairs of the Old Guard was read aloud before the members voted by acclamation. The vote was unanimous with no nays and no abstentions. The attendance at the meeting was 120 members and guests.
Deborah Pearlstein, today’s speaker, has come full circle to her position as Director of the Program in Law and Public Policy at Princeton University where she once was a Fellow in the Program on Law and Public Affairs. In between she was Professor of Law at Yeshiva University and held visiting appointments at the University of Pennsylvania Law School and Georgetown University Law Center. Her research focuses on the U.S. Constitution, democracy, international law, and national security. After graduating from Harvard Law School Professor Pearlstein clerked for Judge Michael Boudin of the U.S. Court of Appeals for the First Circuit and then Justice John Paul Stevens of the U.S. Supreme Court. Prior to her Fellowship at Princeton, she was the founding director of the Law and Security Program at Human Rights First. Before going into law, Professor Pearlstein worked in the Clinton administration as a senior editor and speech writer.
Professor Pearlstein introduced her talk by saying that she would focus on the first part of the title: “Losing the Law,” and to do that she needed to review the events that followed the 2020 election in the final weeks of the Trump presidency. She noted the actions of individuals within his administration and his campaign to claim election fraud, block the certification of the election results, or throw out the results completely. He even tried to remove Justice Department lawyers who refused to accede to his demands. As Professor Pearlstein noted, “The President needed his handpicked lawyers and recently appointed judges to lie.”
But many did not, including some Republican judges and Trump’s own Acting Attorney General Jeffrey Rosen, and other high-level officers in the Attorney General’s office who refused to back claims of election fraud when there was no proof. Professor Pearlstein named these judges and lawyers specifically to make the point that they upheld the rule of law in the face of a “historically unprecedented, authoritarian threat,” and noted that this is how we want and hope constitutional democracies will work.
But this anecdote of the power of the legal profession protecting American democracy is incomplete, because, while judges were rejecting Trump’s lawsuits in court and lawyers were defying Trump in the Justice Department, there were public lawyers like Assistant Attorney General Jeffrey Clark, who drafted the false letter to the Georgia legislators to return to a special session, and John Eastman, who drew up a plan he knew to be illegal to empower Mike Pence to block the certification of the Electoral College results on January 6th. Drawing a parallel between Trump’s attempts to hold onto power and Viktor Orban’s more successful leveraging of legal means to grasp partisan power in Hungary, Professor Pearlstein posed this question: “Is the difference between the U.S. and Hungary today really nothing more than the luck of having had Rosen in the key position rather than Clark?”
Professor Pearlstein proposed what she calls a “somewhat discomfiting answer,” saying that she thinks the legal education, acculturation, and remuneration systems in this country reduce the supply of Rosen-type lawyers and will increase the supply of Clark-type lawyers. Furthermore, unless changes are made in the “structure of public lawyering” and the “acculturation of the legal profession,” one of the most effective checks against anti-democratic claims to power will be lost; indeed, its consolidation will accelerate. We should be concerned about this because we are seeing an erosion of the norms that have helped to keep the power of the law and the power of politics relatively distinct.
Professor Pearlstein then listed what she sees as three basic norms of the legal profession: stare decisis meaning the law is past preferring; law is not a science but a set of interpretive methods applied to a text; and law is a fact-based endeavor (or, there is no lying in law). She then gave illustrative examples of each to show why they are eroding and noted that, for very different reasons from why we see polarization of American politics, we see polarization of American law. She then cited several examples to support this assertion.
Professor Pearlstein mourns the loss of the “distinctions that made law, law” and more specifically: declining public faith in judicial impartiality; “growing support for ‘movement’ judging; “normalizing rhetoric of judicial noncompliance”; and “weakened checks on government power.” She offered a few suggestions to fix the situation. First, reform the rules under which executive lawyers work, and second, strengthen accountability mechanisms inside government, state bar associations, law schools, and the American Bar Association accreditation system.
Respectfully submitted,
Sarah Ringer
Deborah Pearlstein, today’s speaker, has come full circle to her position as Director of the Program in Law and Public Policy at Princeton University where she once was a Fellow in the Program on Law and Public Affairs. In between she was Professor of Law at Yeshiva University and held visiting appointments at the University of Pennsylvania Law School and Georgetown University Law Center. Her research focuses on the U.S. Constitution, democracy, international law, and national security. After graduating from Harvard Law School Professor Pearlstein clerked for Judge Michael Boudin of the U.S. Court of Appeals for the First Circuit and then Justice John Paul Stevens of the U.S. Supreme Court. Prior to her Fellowship at Princeton, she was the founding director of the Law and Security Program at Human Rights First. Before going into law, Professor Pearlstein worked in the Clinton administration as a senior editor and speech writer.
Professor Pearlstein introduced her talk by saying that she would focus on the first part of the title: “Losing the Law,” and to do that she needed to review the events that followed the 2020 election in the final weeks of the Trump presidency. She noted the actions of individuals within his administration and his campaign to claim election fraud, block the certification of the election results, or throw out the results completely. He even tried to remove Justice Department lawyers who refused to accede to his demands. As Professor Pearlstein noted, “The President needed his handpicked lawyers and recently appointed judges to lie.”
But many did not, including some Republican judges and Trump’s own Acting Attorney General Jeffrey Rosen, and other high-level officers in the Attorney General’s office who refused to back claims of election fraud when there was no proof. Professor Pearlstein named these judges and lawyers specifically to make the point that they upheld the rule of law in the face of a “historically unprecedented, authoritarian threat,” and noted that this is how we want and hope constitutional democracies will work.
But this anecdote of the power of the legal profession protecting American democracy is incomplete, because, while judges were rejecting Trump’s lawsuits in court and lawyers were defying Trump in the Justice Department, there were public lawyers like Assistant Attorney General Jeffrey Clark, who drafted the false letter to the Georgia legislators to return to a special session, and John Eastman, who drew up a plan he knew to be illegal to empower Mike Pence to block the certification of the Electoral College results on January 6th. Drawing a parallel between Trump’s attempts to hold onto power and Viktor Orban’s more successful leveraging of legal means to grasp partisan power in Hungary, Professor Pearlstein posed this question: “Is the difference between the U.S. and Hungary today really nothing more than the luck of having had Rosen in the key position rather than Clark?”
Professor Pearlstein proposed what she calls a “somewhat discomfiting answer,” saying that she thinks the legal education, acculturation, and remuneration systems in this country reduce the supply of Rosen-type lawyers and will increase the supply of Clark-type lawyers. Furthermore, unless changes are made in the “structure of public lawyering” and the “acculturation of the legal profession,” one of the most effective checks against anti-democratic claims to power will be lost; indeed, its consolidation will accelerate. We should be concerned about this because we are seeing an erosion of the norms that have helped to keep the power of the law and the power of politics relatively distinct.
Professor Pearlstein then listed what she sees as three basic norms of the legal profession: stare decisis meaning the law is past preferring; law is not a science but a set of interpretive methods applied to a text; and law is a fact-based endeavor (or, there is no lying in law). She then gave illustrative examples of each to show why they are eroding and noted that, for very different reasons from why we see polarization of American politics, we see polarization of American law. She then cited several examples to support this assertion.
Professor Pearlstein mourns the loss of the “distinctions that made law, law” and more specifically: declining public faith in judicial impartiality; “growing support for ‘movement’ judging; “normalizing rhetoric of judicial noncompliance”; and “weakened checks on government power.” She offered a few suggestions to fix the situation. First, reform the rules under which executive lawyers work, and second, strengthen accountability mechanisms inside government, state bar associations, law schools, and the American Bar Association accreditation system.
Respectfully submitted,
Sarah Ringer