Mark and Dahlia The Butchers

I remember the first time I received death threats. I was up in Albany, about to argue before the New York Court of Appeals, and a suit I filed on behalf of my client, Troy Canty, against Berhard Goetz made the front page of the New York Post. I called the office to see if I had any messages, and my secretary told me that I had a few hundred death threats. That was 1985. I’m still alive.

I get the occasional death threat these days. It’s usually because of something I’ve written here or twitted of which someone disapproves. Sometimes it’s from someone on the right. Sometimes the left. It doesn’t concern me, not because death threats aren’t concerning, but it’s easy for to people make noise. Doing something is another matter, and it’s doubtful that anything I have to say matters enough to get anyone to do something.

That’s not true for other people, however. Portland Commissioner Dan Ryan cast the deciding “no” vote against defunding police, only to find his home the target of mostly peaceful protests and violence.

Upon arrival, they chanted “Black lives matter” and shattered a window and two terracotta planters. They lit flares and chucked eggs and balloons filled with paint at the home.

Not the end of the world. Not as bad as being beaten or killed. But way over the line of what is acceptable for a person doing the job of commissioner, which includes making decisions that some will disagree with. It does not come at the price of mob violence against them. Not at their office. Not at a restaurant. Not at home.

At Slate, two unduly passionate legal pundits, Dahlia Lithwick and Mark Joseph Stern, want you to know this is a “con.

The next target is likely to be big prestigious law firms, which they will say were bullied out of representing the president’s interests by vicious partisan attacks. In fact, some prominent attorneys have already begun criticizing the criticism of Trump’s legal team. They fret that going after Trump’s lawyers could lead to a broader campaign against law firms that take on unpopular clients, a practice that undergirds our legal system’s ability to function. Just as someone has to defend accused murderers, someone had to file these Trump suits, they say.

But nothing can be further from the truth. The firms that lined up to try to disenfranchise tens of thousands of voters in Michigan or Pennsylvania based on claims they failed to research, refuse to check, or never believed in the first place should be scorned and sanctioned—not because they stepped forward to defend an unpopular client who had a right to representation but because they willingly and cynically volunteered to help Trump try to reach victory at any cost.

Perhaps they are as puny-minded as to believe this is just about representing Trump’s attempt to steal an election. This time it’s existential, so it’s different. Ends justify means. Insert whatever trite platitude you prefer.

Please do not allow yourself to be conned into thinking that the efforts to bring public attentionscorn, and ridicule upon attorneys and law firms filing what appear to be almost universally frivolous lawsuits are unfair “bullying.”

The argument is that what Biglaw firm Jones Day is doing by representing Trump fails the nuanced distinction between the defense of a hated criminal defendant because the accused has a constitutional right to counsel. While that’s accurate, we’ve already seen the woke distinguish the poor public defender who’s duty-bound to defend the hated accused from the private criminal defense lawyer who voluntarily takes on the case of the worst defendant ever. Just like Jones Day, that lawyer chose to defend evil, so he is evil and deserves the “public attention, scorn, and ridicule” of the puny people like Stern and Lithwick.

But being criticized for whom you represent or how you represent them is nothing new, and not the real issue. Lawyers are scorned and ridiculed all the time. They always have been. If lawyers bring frivolous actions, they should be criticized, and there are punishments, from sanctions to disbarment, that should be imposed.

But that wasn’t the problem about which “prominent attorneys” “fretted” at all. Dahlia and Stern are being disingenuous, which is a nice way of saying they’re liars. The problem is that they’re defending the Lincoln Project’s call to their millions of adoring Trump-hating fans to go after the lawyers. In real life. In real ways. And do them personal harm.

First, the Gertrude.

No lawyer should be subject to doxing, harassing phone calls, or threats of bodily harm. But that doesn’t mean there should be no consequences for lawyers and law firms, especially elite lawyers and law firms, that participate in fundamentally abhorrent legal enterprises.

But then, mobs don’t wield scalpels, but bludgeons. And when the call-to-arms is to get the mob to attack, which was exactly what happened, and what Lithwick and Stern knew happened, and knew was the basis for us “fretting” lawyers, their effete pretense that this isn’t about “doxing, harassing phone calls, or threats of bodily harm,” and maybe a lot worse, as happened to Portland Commissioner Dan Ryan for voting wrong, is a steaming pile of bullshit.

Any attorney who seeks to disenfranchise hundreds of thousands of voters on this basis is a bad lawyer, and we would venture, also a bad citizen.

The Lincoln Project called on its followers to go after the lawyers involved, doxing them. It told its followers to call their offices, harassing them. It told its followers to call the firm’s clients to harass them too. It’s not a stretch to find the lawyers’ home addresses, the schools their children attend, and start lighting fires, throwing rocks, maybe a bullhorn in the middle of the night of outraged people expressing their views about their choice of client. After all, they’re “bad citizens,” and why should bad citizens not be informed by the mob of their badness.

In a series of twits reflecting the moderated speech only an academic can manage, Orin Kerr, one of the “prominent attorneys” accused by these two of “conning” the public gently replied as to why he disagrees with them.

Unlike Orin, I am less kind, less moderated in my speech, and so I will say what he did not. Lithwick and Stern are fascists of the left, spewing lies that aspire to sophistry, in the hope of riling up their tribe’s mob to prevent lawyers from defending their hated enemy. They are the proud spiritual descendants of Dick The Butcher.

19 thoughts on “Mark and Dahlia The Butchers

  1. Christopher Van Wagner

    Great and important blog, SJ. Agree. This IS the proverbial hill lawyers ought to die on, or else what? Not sure what, but that ‘else’ cannot be good. This Lincoln Project tactic is well beyond the slippery slope. It is a virtual bobsled run away from our American justice system’s core values. Then again, perhaps the ACLU will suddenly snap out of its current coma of non-principles and come to the defense of those once seen as its staunchest supporters: monied lawyers who value the role in U.S. history of the lawyer taking on an unpopular cause, against the mob, against the hue and cry. Perhaps, as well, the moon is made not of cheddar but green cheese. Oh well. Back to the salt mines of local disapproval, where hopefully the balloons are helium-filled instead.

    Reply
  2. Tom Doniphon

    “Tolerance is to be expected only from others… One man’s freedom, it seems, has become another man’s cause for resentment” … Andrew Ash
    “The American Republic will endure until the day Congress discovers that it can bribe the public with the public’s money.” … Alexis de Tocqueville.
    Today and yesterday. I was going to comment further but who am I kidding. Only myself.

    Reply
  3. CLS

    My favorite death threat was an angry old lady’s voicemail denouncing me as Satan’s crotch fruit and calling me a “no good son of a rat bastard bitch” before wishing me a “blessed day.”

    This is the one subject that will bring me a case of the red-ass. Lawyers represent clients. That’s the job. Your opinion of the client ethically or morally does not matter one iota. Neither should the public’s opinion ideally.

    Pushing a notion that your opinion or the public’s on the client’s ethics or morals should matter is bullshit and every guilty party mentioned in this post knows better.

    Reply
  4. Rengit

    Not only that, but we had high-profile people and moneyed interests launching a campaign to get the state bar disciplinary committees to “do something” about the attorneys on the case, ideally disbarring them. I guess we now consider taking on very unpopular cases, causes, or clients to be an ethical violation? Stupidity like this would be avoidable if the committees drafted the professional responsibility rules more tightly.

    Reply
    1. SHG Post author

      To be fair, bar discipline has been a shoddy substitute at best, and a lot of bad legal actors have either gotten away with it or gotten a slap on the wrist for conduct that should preclude their being entrusted with clients’ lives or fortunes. That doesn’t justify leaving it to the whims of the mob at all, but we could do a whole lot better policing ourselves.

      Reply
  5. Steve King

    I am thankful for every criminal defense lawyer and other lawyers who represent those who range from the unpopular to the reviled. You make the system work.

    Reply
      1. Steve King

        Good remarks about the bar discipline. I have found that organizations tend to protect their own rather than enforcing standards. To bad they fail at this because I assure you some state actor will be happy to do it for them.

        Reply
        1. The Real Kurt

          Pournelle’s Iron Law of Bureaucracy:
          “In any bureaucracy, the people devoted to the benefit of the bureaucracy itself always get in control and those dedicated to the goals the bureaucracy is supposed to accomplish have less and less influence, and sometimes are eliminated entirely.”

          The Real Kurt

          Reply
  6. JMK

    I know you’re no fan of tummy rubs, but this is a fantastic post. There is little intellectual honesty left out there, and it’s a pleasure watching you argue this point when it’s extremely clear from other posts how you feel about the lawsuits in question.

    Thanks again for being an example of what principle looks like.

    Reply
  7. Paleo

    Did I misunderstand? I thought that Jones Day was representing the GOP in the PA General Assembly in a fight over a Pennsylvania state court decision. The majority party in both houses.

    So are Lithwick and Stern and the Lincoln Fee Collectors actually taking the position that the Pennsylvania legislature should have no say in Pennsylvania election law? I take no position on the merits but I can’t agree that the PA GA should just STFU.

    It’s amazing to be so unlikable so as to cause many people to destroy their credibility, but somehow Trump can do it.

    Reply
  8. Harvey Silverglate

    There are certain occupations that, per their ethical codes or in some cases legal provisions, require that members of those occupations serve all comers and do not discriminate based on race, religion, ethnicity, nor indicia of odiousness, including political views or criminal records. Lawyers are in this category, as are physicians, as are innkeepers and others who operate public accommodations. I have received death threats from time to time when I’ve represented very unpopular or odious clients; as a criminal defense lawyers, I can’t take on the defense of only “nice” people. (What kind of litmus test has been developed for “niceness”?). I have a policy: When I get a death threat where the sender is dumb enough to include contact information (as in an email, where I can just hit “reply”), I actually reply and begin a discussion. The few times this has happened, the person sending the threat has been flummoxed. People are so strange, and often so dumb. I often wonder how the biologists judge which forms of life are “higher” and which are “lower”.

    Reply
  9. Casey Bell

    Tell me if I’m wrong, but it is my understanding that the
    courts exist in order to deliver justice and settle disputes.
    But people like Trump frequently use the courts for other
    purposes. Trump uses the courts to intimidate people and
    businesses. He uses the courts to make it financially ruinous
    for others to pursue what they are entitled to, such as full
    payment for services rendered. He uses the court system as a
    weapon to get what wants. He can do this because he has deep
    pockets and allies in positions of power. He abuses and
    manipulates the system for his own personal gain.

    He can’t do this without the help of lawyers, however. And I
    would think that the ethics oath that lawyers are required to
    take would preclude them from being a part of the unethical use
    of the courts by people like Trump.

    Lawyers are smart people. They are capable of distinguishing
    between legitimate lawsuits and frivilous lawsuits such as the
    ones from Trump that judges have been dismissing regularly over
    the past 2 weeks. For a lawyer to knowingly take on lawsuits that
    are baseless is unethical on it’s face and if their reputation gets dragged
    through the mud as a result, they brought it on themselves.

    Reply
    1. SHG Post author

      You’re not so much wrong, as grossly simplistic. As this is a law blog, for lawyers and judges, this isn’t the place to indulge in such simplicity.

      Reply
      1. casey bell

        I may not be a lawyer but I find your blog the most consistantly
        interesting blog on the internet. I apologize if I was too simplistic.
        Please direct me to the appropriate place for the indulgence of
        such simplicity. :>)

        Reply

Leave a Reply

Your email address will not be published. Required fields are marked *

All comments are subject to editing or deletion if I deem them inappropriate for any reason or no reason. Hyperlinks are not permitted in comments and will be deleted. References to Nazis/Hitler will not be tolerated. I allow anonymous comments, but will not tolerate attacks unless you use your real name. Anyone using the phrase "ad hominem" incorrectly will be ridiculed. If you use ALL CAPS for emphasis, I will assume you wear a tin foil hat and treat you accordingly. I expect civility from you, but that does not mean I will respond in kind. This is my home and I make the rules. If you don't like my rules, then don't comment. Spam is absolutely prohibited, and you will be permanently banned.