Lawyers: Defending the Constitution & Fighting for our Democracy

Episode Notes

Transcript

Lauren Stiller Rikleen:

We still in theory have a constitution. We still in theory have separation of powers. We should have a Congress that stands up and says, wait a minute, the Constitution invests this particular power, particularly of the purse, in us as a body and we are not going to let you take these measures because you are usurping our role that is legitimately granted to us. But if you have an all powerful executive, a Supreme Court willing to seed those powers and a Congress that’s totally afraid to do a thing, this is where we’re left and it is a very scary place to be right now.

Announcer:

Welcome to the award-winning podcast Lawyer to Lawyer with J. Craig Williams, bringing you the latest legal news and observations with the leading experts in the legal profession. You are listening to Legal Talk Network.

J. Craig Williams:

Welcome to Lawyer to Lawyer on the Legal Talk Network. I’m Craig Williams coming to you from Southern California. Lawyers, defenders of our constitution. And in a current political climate, they are fighting more than ever. In this episode, we’ll spotlight the legal community and how lawyers are defending our democracy through initiatives and how they are seeking accountability for those in our profession who have violated their ethical obligations. So without further ado, we’re joined by guest Lauren Stiller Rikleen. She’s the executive director of Lawyers Defending American Democracy, LDAD, a coalition of lawyers united in the defense of our democracy. Welcome to the show, Lauren.

Lauren Stiller Rikleen:

Thank you and it’s a pleasure to be here. Thanks so much.

J. Craig Williams:

Well, since we just talked about lawyers violating their ethical obligations, how far can lawyers go and bar regulators in seeking the professional discipline of attorneys like Todd Blanche and Pam Bondi who really aren’t… We’re not dealing with them. They’re not co-counsel, they’re not opposing counsel, they’re not in our bailiwick, they’re members of the general public. How do we get to complain about them?

Lauren Stiller Rikleen:

It’s funny. LDAD really pioneered the effort of trying to hold those lawyers in the public eye accountable who were essentially lying in court, deceiving the public, undermining free and fair elections through the lawyer disciplinary system. I mean, historically it’s a system that’s been used for clients who are unhappy with their lawyer. They stole money, they did something bad, but the rules of professional conduct are the rules of professional conduct and all of us who are licensed to practice law have an obligation to adhere to them. So we started to file ethics complaints a number of years ago, for example, with respect to people like Rudy Giuliani, Jeffrey Clark and John Eastman, those who were really going into court with false information or otherwise undermining, as I said, free and fair elections in the public. In those cases, the process, although very, very long, has been working in a positive way in terms of protecting the public.

As we know, there’ve been disbarments and suspensions and our point always is that the public is harmed when these things happened. And so it’s really incumbent upon disciplinary authorities to act to protect the justice system and to keep the public confident that their lawyers are acting on their behalf. Now we’re in a situation where the lawyers who should be held accountable, many, many, most are working in the Department of Justice. And that is a barrier that we are facing. As you probably saw with the Pam Bondi complaint in which after it was filed, we were told by the Florida Bar who is the disciplinary authorities for filing this, that no, you can’t file against Pam Bondi because she is a constitutional officeholder. We appealed that to the Florida Supreme Court, didn’t get anywhere. And now we have refiled, we’ve actually revised, added two and refiled that very same complaint, hoping that they now have no barrier to review it.

The Blanche complaint, it looks like, is going to actually be not handled by the New York Grievance Committee, which is who should be responsible for again, they’re the ones that made the recommendation to disbar Giuliani, but apparently they’re going to be taking the position it appears that any complaint against somebody in the Department of Justice needs to go before the Department of Justice through their Office of Professional Responsibility. Well, in this Department of Justice, how do we think that’s going to work out?

J. Craig Williams:

Is that styled as an administrative claim to be made first?

Lauren Stiller Rikleen:

This is something that just came to our attention literally five minutes before we started to talk on this podcast. It does not appear to be that way, but I’m not sure yet, so I need to get more information.

J. Craig Williams:

What is your sense of what’s going to happen with Pam Bondi?

Lauren Stiller Rikleen:

I guess I can only say this. That complaint is so airtight in it’s laying out the many ways in which she abused the system, in which she acted against the code of professional conduct. It spells out the rules, it spells out the behaviors. It would be beyond me to understand how any respectable disciplinary authority could look at that complaint, look at the underlying facts and say, “Nothing to see here.” So our hope, Fervent Hope, is at the very least they will launch a good faith investigation now that she is no longer in that role. Even though there should have been no barrier to begin with, there really is no barrier at this point for them to do that. And if they don’t do that, then we have a really major system of lawyer professional discipline in this country. If the disciplinary authorities that every state has to ensure the profession is accountable, if they’re not willing to look at government lawyers as part of that process, then I don’t know what we do at that point because that’s a tremendous problem.

And as we know with Todd Blanche, that recent court decision in which the court also recommended that Todd Blanche be referred, that his behavior was so egregious that he should be investigated by the New York State Grievance Committee. And they even referenced the complaint that we did together with the Democracy Defenders Fund. So obviously the courts seem to view the grievance committees as the appropriate place to do this. So it’s really hard to understand how we could be in a situation where there is no relief for lawyers who are consistently violating the rules of professional conduct that every other lawyer in the country has to adhere to.

J. Craig Williams:

How does this play with the kind of highly politicized environment that we’re in right now? I mean, there are certainly some people out there who would argue that what Todd Blanche did and what Pam Bondi did was proper.

Lauren Stiller Rikleen:

I’m not sure who those people would be.

J. Craig Williams:

Well, certainly anybody in the Make America Great Again, fervent cult.

Lauren Stiller Rikleen:

Well, those are not the people that I would be looking at in terms of arbiters, whether the code of professional ethics are being followed by any given lawyer. This is why we have disciplinary authorities. It would be perfectly okay. We may not like the result, but it’s perfectly okay when you develop a 70-page complaint that includes all the underlying facts and all the applicable rules for a thorough investigation to be conducted. And then the decision can be we don’t think it rises to a standard that requires sanctions. Okay, that’s the proces. We have to live with that process. But to not even undertake the investigation is where I think it really results in a failure of the system to work on behalf of the public.

J. Craig Williams:

One last question on this particular subject, what gives groups like LDAD the standing to sue? I mean, you’re not in the same state as the person is licensed in that you’re complaining about.

Lauren Stiller Rikleen:

Well, actually I’d have to go back and check. I think in every complaint that we file, we have signers who in fact are from the particular state. When we do our ethics complaints, not only are they thoroughly researched and take months to draft, we generally seek experts to also sign on legal scholars from around the country, judges from around the country. And for example, the Bondi complaint, that was physically submitted by the former Chief Justice of the Florida Supreme Court. So we do our best to make sure that the state is represented as well as the interests of the American people. The standing, it’s not like a court of law where do you have standing to file a particular case. Anybody, any person in this country can file a complaint again before the proper disciplinary authorities to say that they believe that the rules of conduct have been violated.

So there is no legal bar for any democracy organization to do that as well.

J. Craig Williams:

Well, Lauren, we’re going to take a quick break to hear a word from our sponsors. We’ll be right back. And welcome back to Lawyer to Lawyer. I’m joined by Lauren Stiller Rikleen. She’s the executive director of Lawyers Defending American Democracy. We’ve been talking about highly politicized complaints and what lawyers are doing wrong, but let’s switch a little bit to political aspects of research funding, federal research funding. There’s been a lot of changes in that lately. So what kind of tools are we using to affect that?

Lauren Stiller Rikleen:

The research funding is so overwhelmingly depressing. It’s almost hard to know where to begin because this is a topic that has been entirely politicized. But yet if you have a family member who is dealing with cancer as I do, and many of us do, if you have family members who are fighting Alzheimer’s or one doesn’t fight Alzheimer’s obviously, but any family member dealing with any significant medical issue or unusual disease, you rely on the very significant system of grants for their research and the work that they’re doing. And now what we are seeing is an entirely politicized process in which the government is saying, if we don’t like the way you present your proposal, if we think you are too woke, and I hate that word, but it’s come to mean that if we think you care about diversity or inclusion somehow in the work that you’re doing, if we think that we don’t like the state you’re doing the research in because it’s too much represented by the opposing party, they just can cut off the funds.

They don’t like the university, they can cut off your funds. And the new proposed rule that they have is essentially carte blanche to be able to undercut medical and other kinds of scientific research in this country. And that is a tragedy. It’s not just a political disagreement. It is a tragedy for any American family that has to deal with the importance of science in their lives to be able to keep loved ones alive and to protect their health and wellbeing.

J. Craig Williams:

And it goes even deeper than that in terms of the political aspects of it because Congress has the power of the purse. How did the unitary executive that we now have usurp that?

Lauren Stiller Rikleen:

Well, of course that’s the complicated problem that we now have. Chief Justice Roberts who has been a fervent promoter of this notion of unitary executive, which of course means that since the 1980s when he worked in the Reagan administration as a younger lawyer, he has been promoting this notion that the executive branch, the president’s office is all powerful and has all of the authority to not only essentially put itself in place of every other regulatory agency, but can, as he did within the past couple of years, be immune from any kind of prosecution essentially for acts while in office. It’s his fever dream that is being realized right now. And I think what’s astounding to those in the democracy community, those who really believe in the rule of law, to understand how when this Supreme Court is seeing their notion of an all powerful executive play out in real time in every prognosticator’s vision of just how bad it could get and it is there, how they could just continue to come out with these rulings that continue to give more power to the executive.

We are living the disastrous impacts of the Supreme Court’s belief. Chief Justice Roberts believed that the executive should just be free to do anything. Having said that, however, we still in theory have a constitution. We still in theory have separation of powers. We should have a Congress that stands up and says, wait a minute, the Constitution invests this particular power, particularly of the purse, in us as a body. And we are not going to let you take these measures because you are usurping our role that is legitimately granted to us. But if you have an all powerful executive, a Supreme Court willing to seed those powers and a Congress that’s totally afraid to do a thing, this is where we’re left. And it is a very scary place to be right now.

J. Craig Williams:

Well, it’s even a little bit scarier when we talk about the United States Postal Service’s willingness to interfere with mail ballots. What is LDAD doing about that?

Lauren Stiller Rikleen:

Well, we issued an action alert. As you saw, the administration had issued an executive order that essentially upended the constitutional delegations of powers for voting that is clearly in the hands of the states. And the executive order tries to pull all that back and puts all kinds of authority and power into the postal service to essentially be the gatekeeper of mail-in voting. And so there was a notice in common period for trying to implement all of this because it’s one thing to do an executive order, but it’s quite another far more complicated issue to try to implement it through rulemaking and have it become effectively law of the land. When we do our action alerts, we try to say to people, “Here’s the deadline. Here’s how to do a comment. Here’s how to respond. And here are all the reasons that you can offer. Why it’s unconstitutional, why it matters, why people should care.” And in this case, the bottom line is the job of the post office is to deliver mail.

It is not to implement complicated systems of having to work with the federal government and implement with certain lists and who’s a citizen and who isn’t and how they’re supposed to make comparisons in their list and who gets the mail-in ballot. I mean, it is mind-boggling to look at these burdens that are being placed on an organization that is already basically underfunded, doesn’t have enough money to do the job it’s supposed to do delivering mail, and suddenly have them have this outsized role in controlling how mail-in voting is supposed to take place. That’s a function. Again, they’ve constitutionally, the states decide how to administer elections.

J. Craig Williams:

Let’s talk for a moment about Lorenzo Salgado and John Sebastian Guerrero along with Alex Prieti and Rent Goode and any number of other people that have been abused by ICE. How can lawyers meaningfully respond when that’s the environment that they’re operating in immigration?

Lauren Stiller Rikleen:

First, when we talk about some of the heartbreaks of this administration, the notion that people are being killed by ICE agents who are poorly trained. We don’t have to litigate the facts over each of these and hopefully there will be litigation involved. But from all accounts, these are agents who are not trained to be doing what they’re doing and administer these stops and don’t care. And we know at the administration level, through Steven Miller’s actions, the presure being put on ICE agents and law enforcement around the country to simply view individuals as numbers to deport and the inhumanity and the cruelty of what is happening right now is overwhelming and it can leave us all feeling overwhelmed, but that’s exactly what they want. So we can’t do that. We have to take action. And for all of us, that’s going to differ from person to person.

We say that all the time, particularly in the meeting the moment initiative we have to try to galvanize lawyers to be more engaged and active in their communities.

And for some lawyers, that might involve joining the protests and being out there on the front lines and videotaping and trying to show up with their voices in that way. For others, it will be assisting in litigation or writing letters or opinion pieces or reaching out to their congresspeople, showing up at town halls. The problem is I think that people feel paralyzed and tend to come back to, well, what can I do? My voice won’t make any difference. And our answer to that always is every voice matters. And if all of us do our part, if all of us say we cannot be overwhelmed by this cruelty and by what is happening and we will stand up and we will do something, we will make a difference. But we have to get past that hurdle and we can’t feed into what the overall plan is, which is create chaos, overwhelm and defeat any kind of ability for people to react to what is happening.

J. Craig Williams:

Right. Well, Lauren, we’re going to take another quick break to hear a word from our sponsors. We’ll be right back. And welcome back to Lawyer to Lawyer. I’m back with Lauren Stiller Rikleen. She’s the executive director of Lawyers Defending American Democracy. Lauren, we’ve seen John Eastman be held responsible. We’ve seen Rudy Giuliani, but these are minor players in the scheme of things. What is your sense of whether there ultimately will be hell to pay, for lack of a better word? What are we going to do with these individuals who are violating these laws left and right? How long is it going to take to solve these problems?

Lauren Stiller Rikleen:

Well, I used to be more optimistic on the timing. I think the damage that has been done and it continues to be done provides a timeline that’s almost immeasurable. We are looking at decades of destruction in terms of impact. We’ve lost how many thousands upon thousands of lawyers now have left the federal government and the Department of Justice. You look at the loss of federal grants and the changes just throughout government and reverberating into other institutions, the capitulation of the legal profession in terms of how big law has responded at this time. These are challenges that are going to need a whole of community, whole of legal profession effort when the time is right and we are able to do that. I would say, however, that I wouldn’t call what Eastman or Giuliani did in terms of impact minor, because what is being done to undercut trust and confidence in our election system is probably the most dangerous aspect of all of this.

Because if people feel, why should I vote? It’s all rigged anyway, then it’s over. If people don’t think they have a voice that for 250 years we’ve had a system that is dependent on the public being engaged in speaking up and involved and voting. If we can’t do that because we think it’s rigged and we think it doesn’t matter, then we have seeded any ability to fix anything. So to get up in court and lie about an election being rigged and who knows what we’re going to hear in terms of this evening when we hear about a presidential address about the 2020 election, the idea that we’re even still talking about the 2020 election is just so beyond the pale. So when we have these actors who have influence, had influence in our country, still trying to litigate that fight, when we have people being nominated for cabinet level positions who cannot answer a direct question by a senator who won the 2020 election without having to do a little dance and try to escape a direct answer to that, that is the number one problem we are facing because that undermines all of our ability to have a say in our governance of this country.

J. Craig Williams:

Well, Lauren, it looks like we just about reached the end of our program, so it’s time to wrap up and get your final thoughts and point our listeners to how they can reach out to LDAD. But as part of this wrap up, I’d like you to kind of answer the question about the Republican theory about this whole thing. I mean, their theory is that private enterprise should be taking over all of the things that the government is shedding. How do you respond to that?

Lauren Stiller Rikleen:

Well, first I have to start by saying, of course, LDAD is entirely a nonprofit, nonpartisan organization. We can’t help who’s causing the problems or what party they’re from, but it doesn’t matter to us. And I would also say that I think we long ago passed that point of conservative versus liberal or right versus left. I mean, we are really into whether or not we are willing as a country to accept essentially an autocratic totalitarian form of government. So I think that the older arguments about what’s the government’s proper role and who should do what we’re past that now.

Those are conversations I long for, but we are well past that being the framing of what is happening today. What’s happening today is whether we have any commitment to the notion of a government that should exist to serve the American people in whatever size. If you want to scale down a governmental body that’s trying to protect your money, your financing, your monopolies, health, welfare, environment, whatever it is, we can have that policy debate, but that’s not the debate we’re having now. What we are seeing right now is a destruction of government at every level. And that is where the danger really lies.

J. Craig Williams:

Well, they say that democracies are only going to last 200, 250 years. And that’s the rhetorical comment, I think, not the actual comment, but that seems like where we are. What’s your thought?

Lauren Stiller Rikleen:

I remain optimistic. First of all, I have to for purposes of leading lawyers defending American democracy and trying to galvanize volunteers around the country to join with us in this effort. I have to be optimistic and I am optimistic by nature. One of the good things about this job is I see lawyers every day from around the country engaged in what can they do? What should they write? Who should they talk to? How do they make a difference? And I just hope there will be enough of us, all of us in this country going forward that we will in fact be able to see some real change in the future.

J. Craig Williams:

Well, Lauren, how can listeners find lawyers defending American democracy?

Lauren Stiller Rikleen:

Thank you. LDAD.org is our website, very simple, our ldad.org. Through that, you can sign up to volunteer, you can donate, you can learn about all the work that we’re doing. We just ask, be engaged, participate, help.

J. Craig Williams:

Well, thank you very much. And as we wrap up, I’d like to thank our guest, Lauren Stiller Rikleen, Executive Director of Lawyers for Defending American Democracy. And before we let you go, here’s my rant on today’s topic. I think that Lauren is exactly right. We are on the downward spiral in our democracy and unless we take some serious quick steps to solve these problems, we’re going to end up without the kind of democracy that we started with. And we’re going to end up, I think, more on the autocratic scale, which is kind of frightening because we are certainly as American citizens used to the home of the free and the land of the brave and maybe the land of the brave, but it doesn’t seem like it’s the home of the free anymore. Well, that’s it for my rant on today’s topic. Let me know what you think.

If you like what you heard today, please rate us on Apple Podcasts through your favorite podcasting app. You can also visit us at legaltalknetwork.com where you can sign up for our newsletter. I’m Craig Williams. Thanks for listening today. Please join us next time for another great legal topic. Remember, when you want legal, think lawyer to lawyer.