The Federal Bar Council, a legal professional organization with many former federal prosecutors and current and former federal judges among its members, issued a statement this week condemning President Trump's attacks on the judiciary branch. The statement said Trump's reference to James Robart, the Washington state federal judge who blocked the president's ban on refugees and travelers from seven predominately Muslim countries, as a "so-called judge" "threatens to undermine our constitutionally created judicial system."
The Bar Council has 3,500 members, many of whom are former U.S. attorneys, hailing from New York, Connecticut, and Vermont, the states that make up the Second Circuit. The group was founded in 1928 as a chapter of a national association of federal attorneys. Among other activities, the group hosts fishing trips where sitting federal judges mingle with private lawyers, organizes banquets at venues such as the old-money Union League Club in Midtown, and a committee of the Council and an affiliated foundation raise funds for a summer internship program for U.S. Attorneys' offices.
The group's leaders did not respond to requests to elaborate on the decision-making process that went into the statement, but the strongly worded letter is unusual for such a buttoned-up organization.
The statement reads in part:
The Executive has every right to disagree with the ruling of a court, and to seek appellate review when the president believes that a judge has erred. When a president questions the legitimacy of a judge who disagrees with him, however, it undermines the rule of law and the propriety and authority of judicial review.
Susan Kellman, a defense attorney who has not worked as a prosecutor, but joined the group for its continuing legal education seminars, applauded the statement.
"I congratulate them for taking a position. I'm proud to be a member of an organization that was prepared to take a position that shows our attorneys’ respect for the judicial process and the three branches of government," she said. "I thought it was a tremendous showing of respect for the three branches of government."
Edward Rudofsky, a white-collar lawyer, Bar Council member, and onetime deputy chief at the Eastern District U.S. Attorney's Office, said that Trump "should not be contemptuous of court" but "is otherwise entitled to his opinion."
He continued, "Personally, I am in substantial agreement with the view expressed by the FBC and think there should be mutual respect between the Executive and the Judiciary, but historically that has not always been the case, and it is ultimately up to the Congress and the electorate to decide if the President's criticism is appropriate or not."
Just cannot believe a judge would put our country in such peril. If something happens blame him and court system. People pouring in. Bad!
— Donald J. Trump (@realDonaldTrump) February 5, 2017
Following Trump's election, some career DOJ staffers asked their bosses if they were allowed to protest, according to the Washington Post. Active Justice Department employees are prohibited from engaging in political activity while on the clock, and are barred from taking actions that create the appearance of a conflict of interest with their duties.
Many assistant U.S. attorneys—the rank-and-file prosecutors who make up the bulk of the lawyers in U.S. Attorneys' offices—view the job as a resume builder on the way to a broader legal career, though some stay in government longer-term. It's unclear how much the appointment of anti-marijuana, anti-voting rights, pro-death penalty, pro-school segregation Alabama senator Jeff Sessions as attorney general will affect the day-to-day operations of the New York DOJ offices. After a meeting, Trump told Southern District of New York top prosecutor Preet Bharara that he could remain at his post, whereas Eastern District head Robert Capers is considered likely to be replaced.
The Bar Council had ready access to recently departed attorney general Loretta Lynch.
The full Federal Bar Council statement is as follows:
President Trump’s reference to a federal judge who had enjoined his executive order on immigration as a “so-called judge” threatens to undermine our constitutionally created judicial system. Nearly 230 years ago, in “Federalist 78,” Alexander Hamilton recognized that an independent judiciary was an “indispensable ingredient” of the Constitution, and that judges acting with “firmness and independence” would be essential to maintaining the guarantees of ”justice and public security.” For that reason, all three branches of our government should treat each other with dignity and respect.
In the decades since the founders adopted a Constitution with checks and balances and three branches of government, our nation’s independent federal judiciary has proven to be essential to protecting our constitutional rights and upholding the rule of law. On numerous occasions, constitutional rights have taken precedence over popular whim, and our country has benefited as a result. Hamilton recognized that “all possible care” is necessary to protect the judiciary from attacks against its legitimacy, and we write with that important principle in mind.
The Executive has every right to disagree with the ruling of a court, and to seek appellate review when the president believes that a judge has erred. When a president questions the legitimacy of a judge who disagrees with him, however, it undermines the rule of law and the propriety and authority of judicial review. For our democracy to maintain the rule of law, public officials, as well as the public generally, need to respect the judiciary as much as they respect the other independent branches of government.
It is the responsibility of all citizens, and particularly members of the bar, to defend the authority and legitimacy of the court, just as Hamilton anticipated. The Federal Bar Council is comprised of more than 3,500 lawyers who practice in the federal courts of the Second Circuit. It is a diverse group with differing political views on an infinite variety of subjects, but it is united by a belief in one great principle - the genius of our constitutional system is respect for the rule of law and for the women and men who tirelessly and selflessly exercise judicial authority. We have time and again spoken up to criticize those who attack a member of the judiciary and must do so now. While we collectively respect the office of the president, it is incumbent on every elected official, especially the president of the United States, to show utmost respect for the rule of law and the federal judges who are appointed to preserve it.