Are Trump and Musk killing all the lawyers?
Justice John Paul Stevens, in a 1985 opinion, noted that the line is uttered by 'a rebel, not a friend of liberty,' and that 'Shakespeare insightfully realized that disposing of lawyers is a step in the direction of a totalitarian form of government.'
Trump doesn't like lawyers, at least ones he isn't retaining to defend him in court. In Trump's first term, government lawyers repeatedly advised him that he could not do the things he sought to do. In Trump 2.0, the lawyers who might say, 'You can't do this, Mr. President' have been given their walking papers.
Trump has sacked the upper echelon of career lawyers in the Justice Department in an orgy of termination, even as he filled the leading posts with his own former defense attorneys. He sidelined the department's venerated Office of Legal Counsel, bypassing its traditional role of vetting draft executive orders and appointing no acting chief. Last month, Attorney General Pam Bondi added to the purge, sacking the top lawyer at the Bureau of Alcohol, Tobacco, Firearms and Explosives, a 23-year veteran of the agency.
This metastatic purging of lawyers has also spread to the Pentagon. Defense Secretary Pete Hegseth fired the top judge advocates general. As three-star lawyers in uniform, JAGs give independent and nonpolitical advice about the laws of war and domestic legal constraints that Congress has imposed on the armed forces.
Trump doesn't like judges either; the ones who decide against him are just 'woke' lawyers in robes. His attacks on the judiciary dangerously undermine the rule of law. Trump's allies don't like judicial decisions adverse to the administration either. After a New York judge issued a temporary restraining order barring Elon Musk's access to Treasury Department systems, Sen. Mike Lee (R-Utah) declared, 'This has the feel of a coup — not a military coup, but a judicial one.'
Temporary restraining orders and injunctions are hardly revolutionary. We teach about them in every law school in the country. Such orders freeze the status quo for a short time, so that the judge can get the information he or she needs to make a more considered decision about whether a further stay during the pendency of the case is merited.
Musk, cruder than Lee, takes things a step further. He calls on judges to be impeached just because he doesn't like their decisions. Then, in a transparent effort to destabilize the judiciary, he calls for judges to be fired, ignoring the fact that the Constitution gives them life tenure. Federal judges do not serve at the pleasure of Musk.
Musk is now obsessed with the idea of impeaching judges, posting about it constantly on his social media site: 'The only way to restore rule of the people in America is to impeach judges. No one is above the law, including judges.'
This is utter nonsense, but it is dangerous nonsense.
What set Musk off is that a federal judge in Maryland issued a temporary restraining order blocking the Department of Education and the Office of Personnel Management from sharing sensitive records with his DOGE outfit. Later, another judge gave the government until March 10 to provide information about DOGE's problematic activities at the Treasury Department.
There are about 100 active lawsuits currently challenging Trump's torrent of executive orders. Many of these have resulted in temporary injunctions or restraining orders, and there are certainly more to come.
Trump wants to investigate everyone in sight, and an inquisition requires a Torquemada. Enter Ed Martin, a 2020 election denier, now acting and soon to be Trump's nominee for U.S. Attorney in Washington.
Martin took to his job with a political relish that could not escape attention. He sacked some 30 attorneys who had worked January 6 Capitol riot cases, then ordered some of his remaining prosecutors to investigate their own colleagues for potentially committing an unspecified crime by prosecuting those defendants in the first place. What crime did these lawyers conceivably commit, except to uphold their duty to the Constitution and the rule of law?
And the icing on the cake was yet to come. Martin vomited a post on Musk's X about how former Special Counsel Jack Smith had received $140,000 in free legal services from the august D.C. law firm of Covington and Burling, growling, 'Save your receipts, Smith and Covington. We'll be in touch soon.'
Shocking! But what is the crime?
Trump readily gave his blessing, stating that he'd be seeking vengeance on Covington, nullifying its security clearances and government contracts. No good deed goes unpunished.
Justice Robert Jackson, while FDR's attorney general, delivered an oft-quoted speech on Dec. 1, 1940, called the 'Federal Prosecutor.' His words have become an article of faith.
Jackson totally rejected the weaponization of the justice system, saying, 'If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted. … It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself.'
And it's not just the judges and the lawyers. Already the Trump administration has come for non-lawyer federal employees, transgender people, immigrants, the press, epidemiologists, scientists and more.
Maybe one day soon they will come for you.
James D. Zirin, author and legal analyst, is a former federal prosecutor in New York's Southern District. He is also the host of the public television talk show and podcast ' Conversations with Jim Zirin.'
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