When I read about the capitulation to President Trump by the big law firm Paul, Weiss, Rifkind, Wharton & Garrison LLP, I couldn’t help thinking about the capitulation of lawyers in countries like Germany and Chile.
Paul Weiss is based in Washington, D.C., and employs around 1,000 lawyers. Its income last year was around $2.6 billion. Upset that the firm had taken positions not to his liking, Trump targeted the firm with an executive order stating that “the Attorney General, the Director of National Intelligence, and all other relevant heads of executive departments and agencies (agencies) shall immediately take steps consistent with applicable law to suspend any active security clearances held by individuals at Paul Weiss and Mark Pomerantz, pending a review of whether such clearances are consistent with the national interest.”
Moreover, Trump’s order provided that “the heads of all agencies shall, to the extent permitted by law, provide guidance limiting official access from Federal Government buildings to employees of Paul Weiss when such access would threaten the national security of or otherwise be inconsistent with the interests of the United States.”
Notwithstanding the fact that Paul Weiss is a private entity, Trump’s order also complained of the firm’s hiring practices, which were purportedly based on “diversity, equity, and inclusion.”
Needless to say, Trump’s order, if permitted to stand, was going to have a deleterious effect on the financial well-being of the firm.
Paul Weiss could have chosen to fight. It certainly had the financial resources to do so. It had the right to file suit in federal court to seek a judicial declaration that Trump’s actions were illegal, malicious, vicious, retaliatory, and unconstitutional.
Paul Weiss instead reached out to Trump and struck a deal, one in which the firm agreed to provide Trump with $40 million — yes, $40 million! — in free legal services in the future for causes that are near and dear to Trump’s heart. According to the New York Times, the firm also agreed to “merits-based hiring, promotion and retention” and said it would hire an outside expert, within 14 days, to conduct “a comprehensive audit of all its employment practices.”
In return, Trump issued a new executive order cancelling his previous executive order.
People’s Court Judge Roland Freisler in the middle. Licensed under the Creative Commons Attribution-Share Alike 3.0 Germany license.
In Germany under the Nazis, lawyers also capitulated. Of course, their capitulation went further than Paul Weiss’s capitulation. Succumbing to the threats and intimidation of Hitler and his goons, the cowardice of German lawyers caused them to sacrifice the interests of their clients who Hitler and his goons were targeting with “crimes.” The cowardice and servility of the German lawyers played a major role in the harsh tyranny that settled over Germany.
Consider, for example, German college students Hans and Sophie Scholl, who I wrote about in my 1996 essay “The White Rose: A Lesson in Dissent.” They were leaders of an organization called the White Rose that was secretly publishing essays in the midst of World War II that were critical of Hitler, the Nazi regime, and the Nazi war effort. That was a severe crime in Nazi Germany. One day the Scholl siblings were caught and arrested at the University of Munich, where they were students.
Angry over the acquittal in the German judicial system of several defendants in the Reichstag Fire trial, Hitler had established a special “People’s Court” in 1934 that had jurisdiction over terrorism cases, crimes against the Führer, sedition cases, and treason cases. The cases were tried before a 3-judge tribunal of judges appointed by Hitler — i.e., no trials by jury. Naturally, the judges were loyal to Hitler and would render whatever verdict and sentence he wanted.
Since the publication of essays criticizing Hitler, his regime, and his war was considered to be an act of treason, Hitler immediately sent the head of the People’s Court, a vicious Hitler toadie named Roland Freisler, to Munich to preside over the trial of Hans and Sophie and their college friend Christoph Probst. The trial was held within a couple of days after their arrest.
The trial is captured in an excellent German movie with English subtitles entitled Sophie Scholl: The Final Days. I cannot recommend this movie too highly. You can rent it for a clear version or watch a fuzzy version for free on Youtube.
Go to 1:22:35 for the courtroom scene, which is based on the actual transcript of the trial. As the defendants are called forth to account for their “unpatriotic” and “treasonous” actions, you’ll notice something striking: Their defense attorneys do nothing to defend them. Nothing! Why? Because they were scared to death! They weren’t about to do anything that would antagonize Hitler or the judges on the tribunal. They wanted to stay on their good side! It was cowardice at its best.
It was the same thing in Chile when rightwing Gen. Augusto Pinochet took power in a coup in 1973, with the full, enthusiastic support of the Pentagon, the CIA, and other U.S. officials. Immediately, Chilean lawyers went silent. So did the judges. Scared to death of Pinochet, they rolled over to please and accommodate their new leader. Since the Chilean congress also rolled over in deference to their new leader, Pinochet now had free reign to do whatever he felt needed to be done to end economic chaos (which the CIA had helped to foment) and restore “law and order” to Chile.
Pinochet had his goons rounded up 50,000 innocent people who were allegedly socialists or communists. Since Pinochet was certain they were guilty of this grave Cold War offense, no trials were needed or conducted. With Pinochet’s full approval, his goons proceeded to torture them, rape them, sexually assault the women in brutal, unspeakable ways, “reeducate” them, permanently disappear them, or simply execute them. The murder victims included two Americans — Charles Horman and Frank Teruggi, who were executed with the apparent approval of U.S. officials. After all, not only had Horman and Teruggi worked with a Chilean pro-socialist news outlet, they had also protested against the U.S. war in Vietnam. What better justification for executing them without a trial than that? (See the excellent movie Missing, starring Jack Lemmon and Sissy Spacek, which depicts the Charles Horman story.)
Where were the Chilean lawyers and the judges in all this state-sponsored mayhem? They were silent. They were too scared to protest. Many years later, after Pinochet had been ousted from power, the Chilean bar association issued a public apology to the Chilean people for their cowardice in having abrogated their legal and moral responsibility as lawyers and judges to the Chilean people.
Let’s just hope that American lawyers and judges never have to make a similar apology to the American people.
