This week, I received emails from members of the Connecticut Bar through a message posted by President Maggie Castinado, President-Elect James T. (Tim) Shearin, and Vice President Emily A. Gianquinto warning them about the criticism of prosecutions of former President Donald Trump. The message from the bar management it's chilling for those lawyers who see cases like the Manhattan one as raw political prosecution. While the letter does not directly state that such criticism will be considered unethical conduct, it states that criticism “has no place in public discourse” and calls on members to speak publicly in support of the integrity of these legal proceedings.
The statement begins by warning members that “words matter,” but then leaves the ramifications for members of the bar to wonder how they might care. They simply point out that some comments will be seen as “crusading[ing] the line of criticism of dangerous rhetoric.”
According to the Connecticut Bar, it is now considered unwise and unprofessional to draw analogies to show judgments or question the integrity of the legal system or the judges in such cases.
For example, criticizing Judge Juan Merchan for refusing to recuse himself from the case is considered beyond the pale. Many lawyers believe that his political contributions to Biden and his daughter's leading role as a Democratic fundraiser and activist should have caused Merchan to be removed (and any appearance of conflict). I have been more critical of their decisions, which I believe were biased and wrong.
However, the Bar warns lawyers that such comments may cross the line. The letter assures members they are free to criticize, but warns that attacking a judge's ethics or motivations in such cases is dangerous and could lead to violence.
I have previously denounced overheated rhetoric and share the concern about how such angry rhetoric can encourage violence. After the verdict, I immediately encouraged people not to give in to their anger, but to trust our legal system. I think the verdict in New York ultimately it can be annulled. I also pointed out that I don't blame the jury but rather the judge and prosecutors for an unfounded and unfair trial.
Of course, concern about the rhetoric of rage runs across our political spectrum. Although rarely criticized in the media, we have seen an escalation of reckless rhetoric from the left. For example, Georgetown Law Professor Josh Chafetz stated that “when the mob is right, some (but not all!) more aggressive tactics are justified.”
My concern is not the request that lawyers be careful that their comments do not encourage such “aggressive tactics.” At issue is the suggestion that lawyers are somehow acting unprofessionally in denouncing what many see as a two-tier system of justice and the politicization of our legal system.
Like many, I believe the Manhattan case was a blatant example of this weaponization of the legal system and should be denounced by all lawyers. It's a return, in my point of viewto the kind of political prosecution that used to be common in this country.
For lawyers who view these lawsuits as political, they are speaking out in defense of what they believe is the essence of blind justice in America. What is “reckless” to the Connecticut Bar is fair to others. Notably, Attorney General officials did not write to denounce attacks on figures such as Bill Barr or claim that the Justice Department was manipulating justice during the Trump years.
Likewise, the letter focuses on criticism of Trump's prosecutions and not on the continued attacks on conservative jurists like Judge Samuel Alito. He has never issued warnings about those who say conservative judges are blasphemous, attacking their religion or labeling them “partisan hacks” or even another “insurrectionary sympathizers.” Liberal activists have called for the conservative lawyers to be stopped “by any means necessary”.
In Connecticut, Sen. Richard Blumenthal has warned conservative judges to govern properly or face “seismic changes.” That didn't seem to bother the bar. Similarly, Senate Majority Leader Chuck Schumer also stated before the Supreme Court: “I want to tell you, Gorsuch, I want to tell you, Kavanaugh, you've unleashed the maelstrom and you're going to pay the price.”
The letter goes further, suggesting that lawyers should speak out publicly in support of trials like the one in Manhattan, a view that ignores deep misgivings about the motivations and means used in New York to target an unpopular figure in that city. . You have senior Bar officials asking attorneys to take a public stand that many attorneys and citizens oppose in order to defend the integrity of these prosecutions. Imagine the response if the Idaho Bar asked its lawyers to speak out against these cases and declare it reckless or unprofessional to defend them.
I hope that, in the very liberal Connecticut Bar, the letter is hardly necessary. In fact, this card is likely to be quite popular. However, I would have thought that the officials of the Bar would have been more careful to respect the divergent opinions about these judgments and the need to avoid statements that could curb the exercise of freedom of expression.
Ironically, the letter only reinforced the vision of a legal system that maintains an orthodoxy and a political agenda. These officials say it is now unprofessional or reckless for lawyers to draw historical comparisons to show judgement, or to question the motives or ethics behind such cases. They warn lawyers not to “sow distrust in the public towards the courts where it does not belong”. However, many believe that there is an alarming threat to our legal system and that mistrust is justified in light of a prosecution like the one in Manhattan.
As I discuss in my new book, The indispensable right: freedom of expression in an age of rage, critics of political prosecutions under the Crown and during the Adams administrations were often threatened with disbarment or other legal action for questioning the integrity or motives of judges or prosecutors. It's not enough to say “well, that was then and this is now.” The point is that the Bar also has a duty to protect the basic rights that define our legal system, especially the right to free speech.
Again, these officials are not threatening Bar action against critics of these cases. However, as evidenced by the emails in my inbox, many who have doubts about these prosecutions take this as a warning.
Our legal system has nothing to fear from criticism. In fact, free speech strengthens our system by exposing divisions and encouraging dialogue. Orthodoxy and intolerance of speech are the most serious threats to this system.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He is the author of “The indispensable right: freedom of expression in an age of rage” (Simon and Schuster, 2024).
Here is the full message:
Dear members,
Words matter. Reckless words that attack the integrity of our judicial system matter even more.
In the wake of former President Donald Trump's recent trial and conviction, public officials have issued statements claiming the trial was a “sham,” a “hoax,” and a “hoax”; our justice system is “corrupt and rigged”; the judge was “corrupt” and “very unethical”; and, that the jury was “partisan” and “pre-cooked”. Others claimed the trial was “America's first Communist trial,” a reference to the historic purges of high-ranking Communist officials that were used to eliminate political threats.
These claims are baseless and reckless. Such statements can lead to acts of violence against those who serve the public as employees of the judiciary. Indeed, such statements have resulted in threats to those fulfilling their civic duty to serve on jurors, as evidenced by social media posts purporting to identify the names and addresses of anonymous jurors and, even worse, in several cases calling for jurors to be shot or hanged. Most importantly, these statements attack the very integrity of the third branch of government and sow public distrust of courts where it does not belong.
To be clear, freedom of expression includes criticism. There is and should be no prohibition against commenting on the decision to prosecute, the legal theory of the prosecution, the judge's rulings, or the verdict itself. But the baseless accusations of headline-grabbers made by public officials cross the line from criticism to dangerous rhetoric. They have no place in public discourse.
It is up to us, as lawyers, to defend the courts and our judges. As individuals, and as an Association, we cannot let the charged political climate we live in dismantle the third branch of government. Keeping silent makes us complicit in this effort.
Respect for the judicial system is essential to our democracy. The ABC condemns unsupported attacks on the integrity of this system.
Sincerely,
Maggie Castinado
President,
Connecticut Bar Association
James T. (Tim) Shearin
president elect,
Connecticut Bar Association
Emily A. Gianquinto
Vice President,
Connecticut Bar Association
This column also ran on Fox.com
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