When I was an undergraduate, in the early 1970s, one of the most popular dorm room posters, along with Jimi Hendrix and Farrah Fawcett, was a quote from Shakespeare’s Henry VI Part 2: “The first thing we do, let’s kill all the lawyers.” The line showed up on t-shirts and bumper stickers also. I’m not sure why these posters were so popular — I have a much better idea for the late, and highly lamented, Mr. Hendrix and Ms. Fawcett — but I suspect it was something along the lines of creating a new world order, the “Age of Aquarius,” perhaps, with a dash of “Ten Days That Shook the World.”
The sentiment, whatever its merits, made a rather unliterary choice for its motto. Anyone who has actually read Henry VI knows that Dick “the Butcher”, a murderous follower of the rebel Jack Cade, offers the line as a suggested first step to bringing about anarchic chaos, the kind of environment loved by opportunistic criminals. Lawyers need to be killed precisely because they are the defenders of the rule of law and the people’s Magna Carta liberties. An ironic choice for defenders of free speech, peace and brotherhood.
The news this week helps us understand Dick the Butcher’s thought process. Yesterday the New York Times had a column by David Brooks, “The Lawyers Who Did Not Break,” praising federal prosecutors, including assistant US attorney Robert Khuzami, who continue to do their job in the face of intense political pressure to back off. Politico magazine today has a profile of Karl Racine, the attorney general for the District of Columbia, that makes essentially the same point. (Who knew that the District of Columbia even had an attorney general?) Above all, of course, we have Robert Mueller, quietly (to the media, frustratingly quietly, I suspect) doing his job with the background noise of presidential tweets calling him everything except a child of God.
Mr. Brooks says:
The point of this is not to lionize Khuzami. He’s part of a team. There are teams like that spread anonymously throughout the U.S. government. They are clinging tenaciously to the old standards of right and wrong, to the Constitution and the rule of law. And if we get through this, it will be because of people like them.
Nor should we lionize lawyers in general. We have an equal number of sordid examples, whether it is new attorney general William Barr populating the White House and the federal government generally with friends and family, or the periodic media pratfalls from the not-late and decidedly unlamented Rudy Giuliani, the president’s own special counsel in charge of something or other. But in one regard, I think Mr. Brooks goes not far enough. These lawyers represent not the rule of law, but the rule of Law. The work of Mr. Khuzami and Mr. Racine and Mr. Mueller pays strict attention, to be sure, to precise legal standards and evidentiary details. But their work comes from someplace deeper, more fundamental: a sense that what transpires from this administration is simply not right, that it violates standards of honesty, decency, and, dare we say, virtue that do not depend on any statute or regulation, but in fact form the basis for those statutes and regulations, and without which laws (with a lower case “l”) cannot stand.
Which would include, of course, presidential emergency declarations. A judge or a member of the clergy, by saying “I now pronounce you husband and wife” makes it so. Philosophers call this a “speech act;” the words have the power to make real the matter they pronounce. The President seems to think he has unlimited power to perform speech acts, in the same way that the Queen of England can pronounce Mick Jagger (!) or Judi Dench a knight or a dame. By saying “we have a national emergency,” the current state of affairs on the border becomes a national emergency. (This may be true, but not in the way he means.) Not so. The President’s power is to recognize a national emergency, not anoint one. That is the essence of the rule of law.
So, I suggest we all take a moment to raise our glasses to Messrs. Mueller, Khuzami, Racine, and colleagues. Long may you live.