Think twice? Lawyers' group tells members it's okay to criticize, but don't dare call Trump's conviction “partisan”

This week, I received emails from members of the Connecticut Bar Association (CBA) about a message posted by President Maggie Castinado, President-Elect James T. (Tim) Shearin, and Vice President Emily A. Gianquinto warning them about criticism of the prosecutions of the former president. Donald Trump. The message from the leaders of the bar association is chilling for those lawyers who see cases like the one in Manhattan as a crude political prosecution. While the letter does not outright 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 ramifications for members of the bar hanging over how they might care. They simply point out that some comments will be seen as “cross-talk.”[ing] the line that goes from criticism to dangerous rhetoric”.

According to the CBA, it is now considered reckless and unprofessional to make analogies to show trials or question the integrity of the legal system or judges in such cases.

For example, criticizing Judge Juan Merchán for refusing to recuse himself from the case is considered inadmissible. Many lawyers believe his political contributions to President Biden and his daughter's important role as a Democratic fundraiser and activist should have led to Merchan's withdrawal (and any appearance of conflict). I have been more critical of his rulings, which I believe were biased and wrong.

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However, the CBA warns lawyers that such comments can cross the line. The letter assures members that they are free to criticize, but warns that attacking a judge's ethics or the motivations behind these cases is dangerous and could lead to violence.

I have previously denounced heated rhetoric and share concerns about how such angry rhetoric can fuel violence. After the verdict, I immediately encouraged people not to give in to their anger and to trust our legal system. I think, ultimately, the New York verdict can be overturned. I also noted that I do not blame the jury, but the judge and prosecutors, for a baseless and unfair trial.

Of course, concern about angry rhetoric runs across our political spectrum. Although they are 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.”

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My concern is not asking lawyers to be careful that their comments do not encourage such “aggressive tactics.” The problem is the suggestion that lawyers are acting somehow unprofessionally in denouncing what many see as a two-tier justice system and the politicization of our legal system.

Judge Juan Merchán presided over former President Donald Trump's hush money trial in New York City. Trump's sentencing is scheduled for July 11, after he was found guilty on all 34 charges last month. (AP Photos)

Like many, I believe that the Manhattan case was a blatant example of such militarization of the legal system and should be denounced by all lawyers. It is a return, in my opinion, to the type of political prosecution that was once common in this country.

Those lawyers who view these prosecutions as political are speaking out in defense of what they believe is the essence of blind justice in America. What is “unwise” for the CBA, is fair for everyone else. Notably, CBA officials did not write to denounce attacks on figures like Bill Barr, or claims that the Justice Department was manipulating justice during the Trump years.

Additionally, the letter focuses on critics of Trump's prosecutions and not on continued attacks on conservative jurists such as Supreme Court Justice Samuel Alito. He has never issued warnings about those who call conservative judges blasphemous, attack their religion, or label them “partisan pirates” or even other “insurrectionary sympathizers.” Liberal activists have been calling for conservative jurists to be detained “by any means necessary.”

In Connecticut, Democratic Senator Richard Blumenthal warned conservative judges to rule correctly or face “seismic changes.” That didn't seem to worry the bar. Likewise, Senate Majority Leader Chuck Schumer, D-N.Y., also testified before 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.”

Senate Majority Leader Chuck Schumer, D-N.Y. (AP Photo/J. Scott Applewhite)

The letter goes further and suggests that lawyers should speak publicly in support of trials like the one in Manhattan, a view that ignores deep questions about the motivations and means used in New York to attack an unpopular figure in this city. Senior CBA officials are calling on attorneys to take a public stand opposed by many attorneys and citizens to defend the integrity of these prosecutions. Imagine the response if the Idaho State Bar asked its attorneys to speak out against these cases and declare that it is reckless or unprofessional to defend them.

I hope that, in the very liberal collective agreement, the letter will hardly be necessary. In fact, this card is likely to be quite popular. However, he would have thought that CBA officials would have been more careful to respect divergent opinions on these trials and the need to avoid any statements that could curb the exercise of freedom of expression.

Ironically, the letter only reinforced the vision of a legal system that maintains a political orthodoxy and agenda. These officials state that it is now unprofessional or reckless for attorneys to make historical comparisons to show judgment or question the underlying motives or ethics in these cases. They warn lawyers not to “sow public distrust of courts to which they do not belong.” However, many believe that there is an alarming threat to our legal system and that distrust is justified in light of prosecutions like the one in Manhattan.

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Donald Trump arrives at Trump Tower in New York City, after being found guilty of 34 counts of falsifying business records in the first degree on May 30, 2024. (Felipe Ramales for Fox News Digital)

As I discuss in my new book, “The Indispensable Right: Free Speech 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 is 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 fundamental rights that define our legal system, particularly the right to freedom of expression.

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Once again, these officials do not threaten to take action against critics of these cases. However, as evidenced by the emails in my inbox, many who have concerns about these processing are taking it 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 represent the most serious threats to that system.

Here is the CBA message in full:

Dear members,

Words matter. Reckless words that attack the integrity of our justice system matter even more.

In the wake of the recent trial and conviction of former President Donald Trump, public officials have issued statements claiming that the trial was a “sham,” a “hoax,” and “rigged”; our justice system is “corrupt and rigged”; the judge was “corrupt” and “very unethical”; and, that the jury was “partisan” and “precooked.” Others claimed that the trial was “the first communist show trial in the United States”, a reference to historical 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. In fact, such statements have led to threats to those who fulfill their civic obligations by serving on the jury, as evidenced by social media posts that seek to identify the names and addresses of anonymous jurors and, worse still, in several cases urge that they be shot or shot. strung up. Equally important is the fact that such statements undermine the very integrity of the third branch of government and sow public distrust towards the courts to which it does not belong.

To be clear, freedom of expression includes criticism. There is and should be no prohibition on commenting on the decision to prosecute, the legal theory of the prosecution, the judge's decisions or the verdict itself. But unfounded, headline-grabbing accusations 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 allow the charged political climate in which we live to dismantle the third branch of government. Remaining silent makes us complicit in that effort.

Respect for the judicial system is essential for our democracy. The CBA condemns unfounded attacks on the integrity of that system.

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Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He is the author of “The Indispensable Right: Free Speech in an Age of Anger” (Simon and Schuster, 2024).