This week, I received emails from Connecticut Bar Association (CBA) members about a message posted by President Maggie Castinado, President-Elect James T. (Tim) Shearin, and Vice President Emily A. Gianquinto warning them about criticizing the prosecutions of former President Donald Trump. The message from the bar leadership is chilling for those lawyers who view cases like the one in Manhattan as a raw political prosecution. While the letter does not outright state that such criticism will be considered unethical conduct, it states that the criticism has “no place in the 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 bar members dangling on how it might matter to them. They simply note that some comments will be viewed as “cross[ing] the line from criticism to dangerous rhetoric.”
According to the CBA, it is now considered reckless and unprofessional to make analogies to show trials or to 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 President Biden and his daughter’s major role as a Democratic fundraiser and activist should have prompted Merchan to remove himself (and any appearance of a conflict). I have been more critical of his rulings, which I believe were both biased and wrong.
Yet, the CBA is warning lawyers that such comments can cross the line. The letter assures members that they are free to criticize, but warns that attacking the ethics of a judge or the motivations behind these cases is dangerous and could spark violence.
I have previously denounced overheated rhetoric and share the concern over how such rage rhetoric can encourage violence. After the verdict, I immediately encouraged people not to yield to their anger, but to trust our legal system. I believe that the verdict in New York may ultimately be overturned. I also noted that I do not blame the jury, but rather the judge and the prosecutors for an unfounded and unfair trial.
Of course, the concern over rage rhetoric runs across our political spectrum. While rarely criticized in the media, we have seen an escalation of reckless rhetoric from the left. For example, Georgetown Law Professor Josh Chafetz declared that “when the mob is right, some (but not all!) more aggressive tactics are justified.”
TRUMP TRIAL WAS ‘ABUSE’ OF THE US JUSTICE SYSTEM
My concern is not with the plea for lawyers to take care that their comments do not encourage such “aggressive tactics.” The problem is the suggestion that lawyers are acting somehow unprofessionally in denouncing what many view as a two-tier system of justice and the politicization of our legal system.
Like many, I believe that the Manhattan case was a flagrant example of such weaponization of the legal system and should be denounced by all lawyers. It is a return, in my view, to the type of political prosecution once common in this country.
For those lawyers who view such prosecutions 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 CBA, is righteous to others. Notably, CBA officials did not write to denounce attacks on figures like Bill Barr, or claims that the Justice Department was rigging justice during the Trump years.
Likewise, the letter focuses on critics of the Trump prosecutions and not the continued attacks on conservative jurists like Supreme Court Justice Samuel Alito. It has never published warnings about those calling conservative justices profanities, attacking their religion, or labeling them “partisan hacks” or even other “insurrectionist sympathizers.” Liberal activists have been calling for stopping conservative jurists “by any means necessary.”
In Connecticut, Democratic Sen. Richard Blumenthal has warned conservative justices to rule correctly or face “seismic changes.” That did not appear to worry the bar. Likewise, Senate Majority Leader Chuck Schumer, D-N.Y., also declared in front of the Supreme Court, “I want to tell you, [Justice Neil] Gorsuch, I want to tell you, [Justice Brett] Kavanaugh, you have released the whirlwind, and you will pay the price.”
