Government of the Lawyers, by the Lawyers, for the Lawyers – by Avraham Azrieli

Government of the Lawyers, by the Lawyers, for the Lawyers

By Avraham Azrieli *

 

(Numbers in the text correspond to sources cited in the Endnotes.)

Here is an astonishing fact: One in twelve Washington D.C. residents is an active lawyer.1 Add lawyers who don’t actually live in the district but work there, and the total more than triples2 to nearly 120,000 lawyers.3 It is therefore likely that most adults working within ten miles of the White House are either lawyers or their clients – or both. (“Trump’s lawyer has hired his own lawyer in Russia probe.”4)

Current news would make you think it is all President Trump’s fault. Who else but squadrons of competent lawyers could conduct, defend and manage multiple investigations by the FBI, a special prosecutor, and several congressional committees? Yet all those lawyers did not appear suddenly after the 2016 elections, but have dominated D.C. for a long time – both in and out of the government. While lawyers make up less than 0.4% of the US population, law school graduates have consistently made up over 40% of members of congress5 and about half of state governors.6 The federal government at large employs over 100,000 attorneys,7 not including the vast system of federal courts.

The disproportionate abundance of lawyers and law firms in D.C. is driven in no small part by the unavoidable needs of financial and business organizations, as explained by legal recruiter Dan Binstock: “Federal regulations impact the business interests of not only those in the U.S. but internationally as well. A federal agency can have a dramatic impact on whether a business succeeds or fails. Clients feel comfortable knowing someone is at ground zero, so to speak, for regulations coming out of federal agencies.”8 Similarly, law firms that ventured beyond advising clients and into direct lobbying have found themselves feeding at an overflowing trough of riches.9

In other words, who else but lawyers could draft, negotiate, and revise countless laws and regulations? Who else could effectively educate, manipulate and lubricate the multitudes of legislators, regulators and staffers who usher laws and regulations through the lengthy gestation and intricate drafting process, leading to enactment? Who else could figure out how to interpret circular language in the maze of longwinded laws and voluminous regulations in order to gain unintended legal advantages and slip through favorable loopholes? Who else could devise creative avoidance tactics for those who have a special interest in minimizing the costs of compliance with incomprehensibly complex tax, labor, safety, environmental, health, and financial rules? And who else but lawyers could keep a straight face while charging clients $1,400 per hour of office work?10

The Founding Fathers earned their esteemed moniker not for winning a great war, conquering other nations, or muscling each other for power. Rather, they are admired for drafting a legal document: The United States Constitution. It is thus only natural that lawyers have played a central role in forming our resilient constitutional structure, amending it when cracks appear in its foundational principles, and resolving its age-related ambiguities to ensure our union’s continued success. In today’s America of partisan echo chambers and ideological polarization, the Constitution remains perhaps the last common ideal, the last unanimously cherished value, and the last widely respected political manifesto. As the Constitution’s most qualified defenders, lawyers are indispensible to the perpetual health of our national life.

Alas, with one lawyer for every 300 people nationwide, the United States leads all other countries in the number of lawyers per capita.11 For the average American, no personal, business, or even artistic endeavor may be achieved without hiring at least one lawyer to decipher and untangle knotty legalese. In some states, for example, purchasing a home involves paying for the services of five different lawyers, representing the buyer, the seller, the new lender, the retiring lender, and the trust company—and if either side is involved in a divorce, inheritance, or bankruptcy, more lawyers must be hired and remunerated. A cynic would ponder: Have lawyers drafted laws to be so complex, convoluted and confusing that nothing can be done without hiring a lawyer? Have lawyers intentionally placed themselves as gatekeepers at every junction, earning a fee for passage through every important milestone in the average person’s life?

Americans have grown resentful of the unbridled growth in laws and regulations,12 which have erected jagged barriers around people’s freedom of action and necessitated lawyers’ formidable involvement in every aspect of individual, family and business life.13 A Pew research survey found that Americans rate lawyers at the very bottom when asked which group contributes to society’s wellbeing, whereas teachers score consistently high (second only to military service).14 Contrast that with how society remunerates those who serve it: K-6 teachers’ average pay of $43,82815 and US soldiers’ average pay of $33,62416 are dwarfed by lawyers’ average pay: $136,26017. (The average pay among all working Americans: $44,14818). If anything, those numbers show that, however resentful, Americans have recognized the highly valuable services that lawyers provide in resolving family matters, facilitating asset transfers, defending individual rights, asserting consumer protections, suing for corporate malfeasance, negotiating business transactions, enabling the smooth functioning of the financial markets, and in myriad other ways while working in private practice at law firms, in the legal departments of companies, organizations, associations, advocacy groups, local and national government agencies, in prosecution and defense before courts and judicial tribunals, and as researchers and instructors in the academia.19 This immeasurable variety of essential services, without which modern society would cease to function, might be the reason why, in contrary to popularity ranking, when asked to rate the relative prestige level of over 800 occupations, respondents ranked lawyers almost at the top, second only to physicians20 or bankers.21

While it should come as no surprise that a society founded on adherence to law, justice and due process rewards lawyers with fame and fortune, the outsized influence of legal professionals over the nation’s democratic institutions presents a crucial quandary: Are we in danger of turning the rule of law into the rule of lawyers, creating an American juristocracy?22

Over two centuries ago, in Marbury v. Madison (1803)23, the Supreme Court gave itself the power to invalidate legislative and executive acts it deemed to be in violation of the Constitution or unauthorized by it. Even though the Constitution includes no explicit language granting such powers to the judicial branch over the other two branches of government, the principles set forth in Marbury v. Madison have been accepted as logical and necessary as part of the system of checks and balances created by the Constitution.24 Since Marbury, the federal courts have developed extensive jurisprudence in countless well-reasoned decisions to support their authority to invalidate laws and regulations enacted by Congress and state legislatures. The courts’ intrusion on executive powers has been less frequent and more opaque. A study of 297 judicial opinions by the Court of Appeals for the D.C. Circuit and the Supreme Court dealing with executive orders demonstrated that the courts failed to develop “any coherent doctrine of presidential exceptionalism but instead [reached decisions based on] an under-theorized understanding of the role of executive orders and how they should function as part of our separation of powers.”25 The study concluded, therefore, that the courts have acted arbitrarily, failing to articulate a proper legal basis as they examined, reviewed and invalidated executive orders issued by democratically elected presidents.

Worse yet, in recent decades aggressive advocacy has pushed the federal courts to assume power beyond the legislative and executive branches, reaching deep into the process of democratic elections. The most glaring of those cases was Gore vs. Bush, the Supreme Court decision that snuffed out the state-level process of finalizing election results in Florida, handing the presidency to George W. Bush—a decision Prof. Bruce Ackerman of Yale Law School famously condemned as a “Constitutional coup”26 while his colleague George L. Priest wrote that the Supreme Court “abused the political process” and “improperly usurped power allocated by the Constitution to the citizenry.”27 Revealingly, the court wrote: “our consideration is limited to the present circumstances” – a sentence that legal experts have readily interpreted as an admission by the Supreme Court that its decision was based on neither law nor precedent, and may not therefore be cited for either purpose.28

Most worrying, however, are the direct legal attacks on the presidents themselves. President Nixon, facing certain impeachment for “obstruction of justice,” resigned from the office he had won in two consecutive elections, even though a relentless investigation by a special prosecutor and his large teams of lawyers failed to prove Nixon’s involvement in the crime that served as impetus for the investigation—the burglary at the Democratic National Committee’s offices in June 1972.29 With eerie similarity, President Clinton, who had also won two consecutive elections, barely survived his impeachment in the Senate for “obstruction of justice” in a culmination of a lengthy investigation by a special prosecutor and his large teams of lawyers, who had also failed to prove any wrongdoing by Clinton in the “Whitewater” real estate venture that served as impetus for the investigation.30 And while President Obama’s clean ethical, financial and professional record deprived opponents of the usual fodder for legal attacks, he was subjected to more than 60 “birther” lawsuits in dozens of courts across the United States as countless lawyers challenged his very right to serve as president—an office he had also won in two consecutive elections—forcing him to spend a great deal of time, energy and legal fees to prove he was a “natural born citizen” of the United States and prevent his removal from office.31

Which brings us to President Donald Trump, who won the 2016 elections and was quickly subjected to a Special Counsel investigation led by a former FBI director and reinforced with two grand jury panels and a growing army of lawyers, including “the top 14 financial crimes prosecutors in America,” all working hard to unseat a democratically elected president.32 And does anyone doubt that, had Hilary Clinton won the elections, a similar group of equally serious, industrious and zealous lawyers would be working hard to investigate her in a massive treasure hunt for impeachable crimes?

The power to impeach a president is limited by the Constitution to “Treason, Bribery, or other high Crimes and Misdemeanors,” which are “an historically well-defined category of offenses aimed specifically against the state,”33 not crimes that are non-treasonous in nature, having been committed in the private or public sphere. Impeachment was not intended as a political tool to be wielded promptly after an election by bands of lawyers on fishing expeditions for plausible “crimes” committed somewhere along the president’s complex history of personal, political and financial records, in order to kick-start an impeachment process and overturn the people’s vote.

As tempting as it is for those who feel genuine outrage at the words and actions of a president from the opposite party, lowering the bar to allow impeachment for non-treasonous crimes will in time have a viral effect on our whole system of government, infecting it with ill-conceived, politically motivated investigations of every senior member of the administrative, legislative and judicial branches, eventually pitching the country into a destructive cycle of perpetual constitutional crises. Would any official come clean after all-powerful investigative teams dredged up decades’ worth of records, raided friends’ homes and associates’ offices, and cut state-witness deals with small fish in order to find a crime salient enough to justify impeachment proceedings? Doubters should consider this paraphrased parable: He that is without crime among office holders, let him cast the first impeachment vote.

No matter to which side one leans politically, post-elections efforts to invalidate voters’ valid choices through legal fiat should be recognized as sequential attacks on the essence of democracy. Members of the legal profession in particular should ponder the inherent conflict between the honorable unifying role as defenders of the Constitution and the murky partisan role of championing serial assaults on the democratic foundations of the United States. For the American people at large, the question is even more ominous: Have we lost our hard-fought national right, aptly defined by President Abraham Lincoln, attorney at law, to have a “government of the people, by the people, for the people,” and instead submitted to a government of the lawyers, by the lawyers, for the lawyers?

* Avraham Azrieli is the author of eleven books, most recently, the novel Deborah Calling (HarperCollins, 2017). He holds two law degrees and is a member of the New York State bar. www.AzrieliBooks.com

 

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Sources:

1 https://lawschooltuitionbubble.wordpress.com/original-research-updated/lawyers-per- capita-by-state/; See also: https://www.americanbar.org/resources_for_lawyers/profession_statistics.html
2 “Thus, we can estimate that there are 68,839 to 89,427 Washington lawyers. The average of those estimates is 79,133. In other words, 80,000 is a good guess after all.” Erin Delmore, Marisa M. Kashino, The Washingtonian, December 1, 2009; https://www.washingtonian.com/2009/12/01/how-many-lawyers-are-there/

3 http://www.huffingtonpost.com/2011/10/31/dc-has-nations-highest-

co_n_1067215.html

4 https://www.cnbc.com/2017/06/16/nbc-trumps-lawyer-has-hired-his-own-lawyer.html

5 Bonica, Adam, Why Are There So Many Lawyers in Congress? (January 13, 2017).

Available at SSRN: https://ssrn.com/abstract=2898140

6 https://ballotpedia.org/Where_did_your_governor_go_to_school%3F

7 http://abaforlawstudents.com/2011/10/01/working-for-uncle-sam-government-jobs-

law-grads/

8 https://www.law360.com/articles/635678/dc-legal-boom-set-to-continue-amid-

regulatory-demand

9 https://www.law360.com/articles/646212?scroll=1 and

https://www.law360.com/articles/681090?scroll=1 10

http://www.abajournal.com/news/article/top_partner_billing_rates_at_biglaw_firms_nudg e_1500_per_hour
11 https://www.clements.com/sites/default/files/resources/The-Most-Litigious- Countries-in-the-World.pdf

12 “Americans See Too Many Unnecessary Laws,” Rasmussen Reports, July 5, 2017; http://www.rasmussenreports.com/public_content/lifestyle/general_lifestyle/june_2017/ americans_see_too_many_unnecessary_laws
13 Borie-Holtz, Deborah and Shapiro, Stuart, Trying to Float in a Sea of Regulation: Perception and Reality About Regulatory Overload (September 15, 2014). Available at SSRN: https://ssrn.com/abstract=2496436 or http://dx.doi.org/10.2139/ssrn.2496436

14 http://www.pewforum.org/2013/07/11/public-esteem-for-military-still-high/; see also: https://www.americanbar.org/content/dam/aba/migrated/marketresearch/PublicDocu ments/public_perception_of_lawyers_2002.authcheckdam.pdf

15 http://www.payscale.com/research/US/All_K-12_Teachers/Salary#by_Job
16 http://www.payscale.com/research/US/Job=Soldier/Salary
17 https://money.usnews.com/careers/best-jobs/lawyer/salary
18 https://www.thebalance.com/average-salary-information-for-us-workers-2060808
19 http://www.nalp.org/what_do_lawyers_do; see also: Abrams, L. L., The Official Guide to Legal Specialties: An Insider’s Guide to Every Major Practice Area (2000)

20 National Opinion Research Center (NORC) as cited in “Norc Scores” – Colorado Adoption Project: Resources for Researchers. Institute for Behavioral Genetics, University of Colorado Boulder. http://ibgwww.colorado.edu/~agross/NNSD/prestige%20scores.html 21 NORC at the University of Chicago, http://gss.norc.org/Documents/reports/methodological- reports/MR122%20Occupational%20Prestige.pdf

22 Ran Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism, Harvard University Press, 2007
23 5 U.S. 137 (1803)
24 William E. Nelson (Author), N. E. H. Hull (Editor), Peter Charles Hoffer (Editor), Marbury v. Madison : The Origins and Legacy of Judicial Review (Univ Pr of Kansas, 2000)

25 http://www.yalelawjournal.org/note/executive-orders-in-court (See: Conclusion) 26 http://ylr.law.yale.edu/pdfs/2002/Coup.pdf
27 http://digitalcommons.law.yale.edu/fss_papers/636/
28 http://www.yalelawjournal.org/forum/please-dona8217t-cite-this-case-the- precedential-value-of-bush-v-gore

29 http://www.msnbc.com/msnbc/nixon-40th-anniversary-order-the-watergate-break 30 http://www.washingtonpost.com/wp- srv/politics/special/clinton/stories/impeach021399.htm
31 http://www.motherjones.com/politics/2010/01/whats-obamas-birther-legal-bill/
32 https://www.theguardian.com/us-news/2017/aug/05/robert-mueller-donald-trump- russia

33 Isenbergh, Joseph. 1999. “Impeachment and Presidential Immunity from Judicial Process,” Yale Law and Policy Review 53, pp. 63. http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=9417&context=journal_ articles