Is Federal Criminal Solicitation Unconstitutionally Overbroad?

“He who kills the president to save the country has broken no laws.” “If we’re planning murders, I’d like to suggest an orange one.” “Would someone just take care of it? Someone with the right skills and tools.” “Take the shot. We’ll deal with the fallout.”

Is it a crime – specifically, solicitation of the assassination of President Trump – to post messages like these (and dozens more) on microblogging sites like X and BlueSky? A jury in the Eastern District of Virginia just answered “no” by finding the person who posted those messages not guilty of soliciting a crime of violence in violation of federal criminal law 18 U.S.C. § 373. I’m the Federal Public Defender for the Eastern District of Virginia, and I represented him.

The case raised the following question: does the mere encouragement of another to commit a crime, without any additional inducement but with the requisite intent, constitute criminal solicitation?

If you skim the 2023 U.S. Supreme Court case United States v. Hansen, you might think the answer is yes. Hansen involved an offense that makes it unlawful to encourage or induce an alien to unlawfully come to, enter, or reside in the United States, and the Court limited the scope of the offense to criminal solicitation and aiding and abetting. Hansen defines criminal solicitation as “the intentional encouragement of an unlawful act.”

But it’s also clear from the opinion that the Court defined “encouragement” in a “specialized, criminal-law sense” that is far narrower than its ordinary meaning. As the dissenters point out, an offense limited to criminal solicitation should exclude a grandmother who merely encourages her noncitizen grandchild to move illegally to the United States. To avoid holding that the statute was unconstitutionally overbroad, the Court held that a statute that prohibits “encouragement” of unlawful immigration requires proof of more than mere “encouragement,” as that term is ordinarily understood, of unlawful immigration.

Nonetheless, criminal law treatises imply a broader definition of criminal solicitation offenses. Wayne Lafave’s treatise Substantive Criminal Law, for example, explains that “the essence of the crime of solicitation is ‘asking a person to commit a crime,’ [and] it ‘requires neither a direction to proceed nor the fulfillment of any conditions,’ nor, for that matter, a quid pro quo.” According to that treatise, advising, counseling, encouraging, entreating, importuning, and urging are all equivalent to requesting that someone else commit a crime. Section 5.02 of the Model Penal Code similarly defines criminal solicitation broadly to encompass speech that requests another to commit any offense. Like the federal solicitation statute, which prohibits anyone who “solicits, commands, induces, or otherwise endeavors to persuade” another person to commit a violent crime, the Model Penal Code proscribes “command[ing], encourag[ing], or request[ing].”

But what of the First Amendment? At the time of the founding, it was a crime to “compass” or imagine the death of the King, and saying as much out loud was a form of treason. A representative government, by contrast, is premised on the idea that vehement opposition to the President is not a crime. The principle “that opposition to [the government’s] abuses is not treason,” the Supreme Court has explained, “had made our government tolerant of opposition based on differences of opinion that in some parts of the world would have kept the hangman busy.”

The Supreme Court’s 1969 landmark decision in Brandenburg v. Ohio even bars the government from prohibiting “advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” According to Brandenburg, “mere advocacy, unrelated to its tendency to produce forcible action[,]” remains protected speech.

The Court has thus explained that “[t]he mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it.” Indeed, it has noted that words like, “I encourage you to obtain child pornography,” although certainly advocating that someone commit a crime, remains protected by the First Amendment.

So how do we reconcile the crime of solicitation on the one hand with the First Amendment’s protection for speech that encourages others to violate the law on the other?

According to the federal prosecutors in the Eastern District of Virginia, speech that satisfies the elements of criminal solicitation is categorically excluded from First Amendment protection, which they argued protects only theoretical statements justifying violence in the abstract. Just as certain narrow categories of speech such as obscenity, “true threats,” fighting words, and offers to engage in illegal transactions are categorically excluded from First Amendment protection, the prosecutors argued, so is speech that amounts to a criminal solicitation.

The problem with this argument is that it fails to explain the First Amendment’s protection of what the Court has described as “’mere advocacy’ of illegal acts—a kind of speech falling within the First Amendment’s core[.]” If speech advocating or encouraging others to commit unlawful acts, without more, satisfies the elements of solicitation and can be prohibited, there’s nothing left of Brandenburg’s holding.

U.S. District Judge Anthony Trenga thus instructed the jury that the First Amendment protects “speech that merely, without more, encourages or advocates that others should engage in violence—even violence against political figures or the government—at some indefinite point in the future.” The court then explained that if the jury determined that the defendant’s conduct satisfied the elements of federal solicitation of a crime of violence, 18 U.S.C. § 373, it must then decide whether it constituted “the mere or abstract advocacy of violence or lawlessness at some indefinite time in the future,” and therefore was protected speech, or “was directed and likely to produce imminent lawlessness,” and thus unprotected by the First Amendment.

If the elements of criminal solicitation can be satisfied by “mere advocacy” – meaning pure speech encouraging others to commit a crime without providing any assistance, offers to partner or hire, or otherwise proposing to conspire, as the prosecutors maintained -- this was undoubtedly a correct instruction. It ensured that a conviction could not rest upon speech protected by the First Amendment. But it also means that criminal solicitation in violation of § 373 encompasses a significant amount of protected speech.

There’s an easier path to reconciling criminal solicitation and the First Amendment, which is to construe the elements of solicitation statutes to require more than mere advocacy — like the majority did in Hansen. As a 1997 DOJ report on the publication of bombmaking materials noted, “[i]n the prototypical solicitation case, the ‘persuasion’ is accompanied by some form of inducement, such as a money payment, or a threat. Such a case raises no First Amendment issues[.]” The report goes on, however, to observe that “insofar as Congress also intended § 373 to cover cases of ‘persuasion’ taking the form of mere advocacy or urging of unlawful action – without any threat or inducement – many such cases could be subject to significant First Amendment constraints under the Brandenburg doctrine.”

The legislative history of 18 U.S.C. § 373 reveals that Congress intended the crime of federal solicitation to require proof of a serious offer to conspire to commit a violent felony or engage in an illegal transaction to do so. As Senate Report 98-225, which accompanied the Comprehensive Crime Control Act of which § 373 is a part, explains, “[s]olicitation involves a hiring or partnership arrangement, designed to accomplish a specific action in violation of law, where the communication is an essential link in a direct chain leading to criminal action.” If that’s what the elements of the crime of federal solicitation required – proof of a serious offer to hire or partner with someone to commit a violent crime – then the offense of criminal solicitation would be categorically excluded from First Amendment protection. And no one, like my client, would be prosecuted for speech that falls within the core of the First Amendment’s protections.

On Tariffs and Constitutional Structure

On a Sunday evening in August 1971, Richard Nixon appeared on television to announce what he called a New Economic Policy. Without warning, without congressional debate, without a single vote by any elected representative, the President imposed a 10% tax on virtually all foreign goods entering the United States. Nixon wrapped this unprecedented assertion of executive power in the language of emergency—the Bretton Woods monetary system was collapsing, the gold standard was dying, and decisive action couldn't wait for Congress.

When businesses challenged these surprise tariffs in federal court, the judges ruled that presidential authority to "regulate" imports under emergency powers did not include the power to tax. Congress responded by passing new legislation that explicitly granted presidents emergency tariff authority—but only up to 15%, only for 150 days, and only in genuine balance-of-payments crises.

Half a century later, President Trump has shattered Nixon's precedent and Congress's carefully crafted limits. Claiming authority under the International Emergency Economic Powers Act—a 1977 statute that, like Nixon's law, permits "regulating" imports during emergencies but never mentions taxation—Trump has imposed tariffs up to 57% with no expiration date.

The Supreme Court will hear oral arguments this month on this very issue, an issue that the Framers thought they had answered definitively: Can a president impose taxes on the American people without explicit congressional authorization? The administration's argument reduces to this: because IEEPA lets presidents "regulate" trade during emergencies, and because regulation sometimes can include taxation when Congress explicitly says so, presidents now possess inherent authority to tax by executive decree whenever they declare an emergency.

This interpretation would hand future presidents—Democrat and Republican alike—a power that the British Parliament denied to kings and the Founders denied to presidents. The next president could declare a climate emergency and impose carbon tariffs to fund renewable energy. Another might proclaim an infrastructure crisis and tax imports to finance construction projects. The wisdom of these policies is beside the point. Constitutional structure isn’t a luxury we can afford only when we distrust the president in office—it’s the framework that makes disagreement itself sustainable across time. The constraint that protects your adversary's rights today is the same constraint that will protect yours tomorrow. When we ask whether a president may tax without Congress, we're not asking whether this president's emergency is genuine or that president's aims are worthy. We're asking what kind of republic we mean to be, or capable of keeping. And indeed once "regulate" means "tax," and once any persistent problem qualifies as an emergency, the Constitution's most fundamental structural constraint on executive power evaporates.

The power of the purse returns to exactly where the Revolution said it must never reside: in the hands of one person, declaring necessities, imposing burdens, beyond the reach of the people's representatives.

When Charles I tried to impose ship money levies without Parliament's consent in the 1630s, he triggered a civil war that cost him his throne and his head. When George III attempted taxation without colonial representation in the 1760s, he lost an empire. The Framers knew this history intimately—several had law libraries dominated by English constitutional treatises, and all had lived through a revolution triggered by executive taxation.  The Framers encoded this historical lesson into our constitution. They made the power to tax Congress's first enumerated power, required revenue bills to originate in the House, and gave the President no independent authority to raise revenue.

Now the Court must decide whether those constraints still bind or whether creative statutory interpretation can accomplish what the Constitution – and the history accompanying it – unequivocally forbids.

No Taxation Without Representation: Why the Supreme Court Must Reject Presidential Tariffs

For over four centuries, the power to tax has stood as the most jealously guarded right in the Anglo-American constitutional tradition—not simply because of money, but because of what taxation represents: the power to command the people's property without their ongoing consent.

In the 1620s, Charles I faced a Parliament that refused to grant him adequate revenues. Rather than negotiate, the Stuart monarch turned to creative interpretation—imposing "forced loans" that were taxes in all but name, and imprisoning without trial those who refused to pay. When Parliament protested, Charles dissolved it in 1629 and ruled for eleven years without calling it at all.

To finance his government, Charles revived "ship money"—originally a requirement that coastal towns provide ships for the navy in wartime. But Charles transformed it: extending the levy to inland counties, imposing it during peacetime, and making it annual and indefinite. The courts upheld his authority by a narrow 7-5 vote in R v. Hampden (1637), reasoning that the King alone could determine when an emergency existed and what revenues it required.

Parliament's response came with the Petition of Right (1628)—a constitutional document ranking alongside Magna Carta. Led by Sir Edward Coke, Parliament forced Charles to acknowledge four principles: no taxation without parliamentary consent, no imprisonment without cause, no quartering of soldiers on citizens, and no martial law in peacetime. Charles signed it but never honored it. By 1642, England had descended into civil war. By 1649, Charles I had been tried for treason and beheaded.

The American revolutionaries knew this history intimately. Many colonial leaders had read Coke's Institutes and understood that John Hampden's challenge to ship money had made him "the Father of the People." When Parliament began imposing taxes on the colonies in the 1760s, the colonists reached for the same constitutional vocabulary their English ancestors had used against the Stuarts.

But here's what modern lawyers often miss: the colonists' argument was more sophisticated than simply "no taxation without representation." They drew a careful distinction between Parliament's power to regulate imperial trade and its power to tax for revenue.

The colonists conceded Parliament's authority to regulate commerce. The Navigation Acts, which required certain goods to be shipped on British vessels, were generally accepted. Parliament could shape trade patterns: directing manufacturing to Britain, agriculture to the colonies, controlling trade routes. Such regulations were understood as part of the mercantile system that bound the empire together. The mother country would provide military defense and access to British markets; the colonies would supply raw materials and purchase British manufactures; coordinated trade policies would strengthen the entire empire against its European rivals. These were external duties—regulations affecting commerce at the ports that could be avoided by not importing certain goods.

What the colonists rejected was Parliament's claim to impose internal taxes—levies designed purely to extract revenue. The Stamp Act required colonists to purchase revenue stamps for newspapers, legal documents, playing cards, and countless daily items. Unlike import duties, the Stamp Tax reached into every household and business.

Purposeful revenue-raising could only be accomplished, Americans insisted, by large representative assemblies elected at regular intervals. Parliament – that far-away government - could not tax America for revenue purposes because Parliament was not elected and frequently re-elected by Americans. The Declaration of Independence assailed both British King George III and his British Parliament for "imposing Taxes on us without our Consent"—that is, consent as registered in our own legislatures.

The Statutory Sleight of Hand

Given that America's Congress has broad taxation power and also broad power to regulate various matters, including interstate and international commerce, Congress may indeed combine these powers in its legislation. Thus, Congress may regulate for revenue purposes, and also raise revenue for regulatory purposes.

The issues in this case raise entirely different questions. May the executive, without clear congressional authorization, twist a statute that nowhere uses the magic words "tax" or "revenue" into a gigantic revenue measure? May the executive, in effect, rewrite the entire tax code for an indefinite period in the absence of any clear legislative authorization?

Consider the absurdity of the government's position. IEEPA authorizes regulation of both imports and exports. But the Constitution absolutely prohibits Congress from taxing exports—Article I, Section 9, Clause 5. Southern states insisted on this provision to protect their agricultural exports from federal revenue extraction. It is a textual stretch to say that the word "regulate" means "regulate for revenue purposes" for imports but means the exact opposite for exports. The government would have us believe Congress used the same word in the same sentence to authorize taxation (for imports) and to forbid it (for exports).

The government places great weight on President Nixon's 1971 emergency tariffs. Facing a balance of payments crisis that threatened the Bretton Woods monetary system, Nixon imposed a 10% import surcharge under the Trading with the Enemy Act, which, like IEEPA, authorized the president to "regulate" imports. When challenged, the customs court initially held Nixon lacked such authority. But Congress, even while supporting Nixon's economic goals, was deeply concerned about the assumption of power.

Missing in the government’s brief, however, is what happened next. Congress passed Section 122 of the Trade Act of 1974, explicitly granting presidents emergency tariff authority—but only up to 15% and only for 150 days. If Congress believed that "regulate" in TWEA already encompassed tariff authority, this statute would have been superfluous. Congress was not ratifying an existing power but creating a new, carefully limited one.

Then, Congress repealed TWEA except in cases of declared war and enacted IEEPA to govern peacetime emergencies. The legislative history is utterly silent on tariffs. Why? Because Congress had just finished addressing emergency tariffs in Section 122. It defies belief that Congress, having carefully limited emergency tariffs to 15% for 150 days in one statute, simultaneously granted unlimited tariff authority in another without saying so.

President Trump's tariffs make a mockery of these limits. They range up to 57% on Brazilian goods. They have no end date. They vastly exceed what Congress authorized when it actually addressed emergency tariffs explicitly.

The administration's defenders argue that this Court should defer to presidential judgment in matters of national security and foreign affairs. They point to a long history of executive discretion in trade policy, citing examples from Washington's Neutrality Proclamation to modern sanctions regimes. Some scholars sympathetic to the administration contend that tariffs are fundamentally regulatory tools, not taxes—their purpose is to shape behavior and protect domestic industry, with revenue collection being merely incidental. They distinguish tariffs from direct taxation by noting that Americans can avoid tariffs by purchasing domestic goods, whereas taxes on income or property are inescapable. The administration further argues that the emergency is real: unfair trade practices, supply chain vulnerabilities exposed by recent crises, and threats to critical industries justify swift executive action that Congress, gridlocked by partisan division, cannot provide. To read IEEPA narrowly, they contend, would hobble presidents facing genuine threats to national security and economic stability—precisely when executive flexibility matters most.

Yet this argument proves too much. The same logic would authorize presidents to impose income surtaxes during fiscal emergencies or property levies during infrastructure crises—so long as they called it "regulation" and declared an emergency. The administration's framework would make the Constitution's careful allocation of taxing power to Congress dependent entirely on how creatively presidents label their revenue-raising schemes.

The Major Questions Rears Its Head

The Supreme Court has repeatedly invoked the major questions doctrine to strike down executive actions that discover vast powers in modest statutory grants. The Court invalidated the CDC's eviction moratorium, the EPA's generation-shifting rule, and President Biden's student loan forgiveness—all for want of clear congressional authorization. As the Court explained in West Virginia v. EPA, Congress does not "hide elephants in mouseholes."

If forgiving student loans requires clear congressional authorization, how can the power to tax spring from statutory silence?

It would be awkward indeed for this Court to be perceived as narrowly construing executive-empowering language under President Biden, as in the landmark student loan case, while doing the exact opposite when confronting President Trump. The major questions doctrine either constrains executive overreach consistently or reveals itself as a weapon of partisan convenience.

Should Congress choose to grant emergency tariff authority in the future with its eyes open, then the Court might need to revisit whether such delegation violates non-delegation principles—"delegation running riot" in the famous language of Schechter Poultry. But if this Court wrongly reads the current statute to empower presidential dictatorship over the tax code, it will be hard for Congress to claw back its constitutional role and power. Any attempted repeal or president-limiting modification will likely have to surmount a presidential veto.

To return to the biggest issue in this case: reading a bland law that nowhere uses the words "revenue" or "taxes" to empower President Trump or any president to rewrite the tax code unilaterally risks creating a dictatorship broadly reminiscent of Charles I in the 1600s and totalitarian regimes in the 1900s.

The wise words of Justice Jackson ring true in the case at hand. Executive power "has the advantage of concentration in a single head in whose choice the whole Nation has a part, making him the focus of public hopes and expectations." This generates "pressure... for action [that] may be irresistible especially in... time of crisis." But the Constitution's response to such pressure is not acquiescence but structure—dividing power precisely when unity seems most expedient.

If the Court upholds these tariffs, it will not merely affect trade policy. Every future president will understand that emergency declarations unlock taxation authority. A Democratic president might declare a climate emergency and impose carbon tariffs to fund green infrastructure. A Republican might proclaim a border crisis and tax remittances to fund immigration enforcement. The limiting principle disappears once "regulate" means "tax."

This case presents the Court with a choice between two stories about our Constitution. In one story, the text is infinitely plastic, its terms expandable whenever presidents declare emergencies, its structures yield to necessity. In the other story—the one I believe—the Constitution's prohibitions and structures matter most precisely when they're inconvenient, when emergencies tempt us toward expediency, when presidents promise action that Congress won't deliver.

Four hundred years of struggle against executive taxation without representation should not end with statutory cleverness and emergency declarations. The principle for which the British Parliament dethroned and executed Charles I, for which Americans fought a revolution, for which the Framers designed our Constitution, deserves better than death by creative interpretation.

The Court should read IEEPA to mean what it says: presidents may regulate international commerce during emergencies, using the specific tools Congress has granted. But they may not, through regulation's guise, exercise the one power the Framers most jealously reserved to the people's representatives—the power to tax.

 

We Celebrate the Constitution and Citizenship at a Time When Both Are Under Attack

Constitution Day, observed each year on September 17th, commemorates the day in 1787 when the delegates to the Constitutional Convention gathered in Philadelphia to sign what would become the original articles of our national charter. Of course, when we celebrate the Constitution today, we celebrate not only the document signed centuries ago, but the whole Constitution, which has been amended numerous times by We the People, making our nation incrementally freer, fairer, and more inclusive. Constitution Day’s full name, according to statute, is “Constitution Day and Citizenship Day.”  This year, both the Constitution and core concepts of citizenship are under attack, and they deserve our attention and protection more than ever.

Beginning in the first Trump administration, President Trump mused about limiting the Constitution’s birthright citizenship provision through executive order. Then, as now, legal experts have described why such an attempt would be at odds with the Constitution’s text and history. Nonetheless, in January 2025, President Trump issued an executive order purporting to limit birthright citizenship to children who have at least one parent who is a citizen or is lawfully admitted for permanent residence. This ignores the Fourteenth Amendment text, which states “[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” As the Constitutional Accountability Center, for which I work, explained in an amicus brief we filed on behalf of an ideologically diverse group of constitutional law and immigration scholars in litigation challenging the Trump executive order, the Fourteenth Amendment’s enactment history makes clear that the Amendment means exactly what it says. Indeed, its Framers were well aware that the provision would grant citizenship to children whose parents were not citizens, including parents who were either in the country unlawfully or who did not intend to stay permanently.

While the Trump administration has attempted to whittle away citizenship in one context, it has fallen over itself to deploy citizenship to try to limit other constitutional rights. For instance, in the context of mass deportation plans, multiple Trump administration officials have opined that unlike citizens, noncitizen immigrants are not entitled to constitutional due process. The Constitution says no such thing. The Due Process Clause of both the Fifth and Fourteenth Amendments does not limit its protections to citizens, saying that “no person” shall “be deprived of life, liberty, or property, without due process of law.”  Even one of the most widely criticized shadow docket rulings from the Supreme Court—issued in the context of removals pursuant to President Trump’s invocation of the Alien Enemies Act—took care to note that every detainee has a right to meaningful notice and the chance to challenge one’s detention and removal before a judge.

President Trump has also tried to graft citizenship onto unrelated constitutional provisions, such as those relating to the Census. The first Trump Administration’s attempt to add a citizenship question to the 2020 Census was halted in 2019 by the Supreme Court. Now Trump has announced that he has instructed the Commerce Department to work on a new Census, and has reportedly suggested in social media posts that the new Census would exclude undocumented immigrants. It’s unclear whether this would be for the 2030 Census or some unprecedented, irregularly timed Census to take place before 2030. What is clear is that any such alteration would fly in the face the Fourteenth Amendment requirement that the Census count the “whole number of persons in each state.”  Equally clear is the Constitution’s assignment of significant Census decisions to Congress, not the President, something that even some high-ranking Trump administration officials have conceded.

And of course, these are only a few examples. Needless to say, if you care about the Constitution and citizenship, you should be concerned. Constitutional concepts of citizenship lie at the heart of who is considered part of the American family and how they participate in our democracy. When the Constitution’s text and its embedded concepts of citizenship aren’t protected, all Americans—irrespective of immigration status, citizenship, or political party affiliation—are harmed. The lower courts have had a strong record of halting some of the most egregious examples of unconstitutional Trump administration policies. This effort in the courts is essential, but it might not be sufficient. The Constitution and its core citizenship concepts will need to be defended by Congress and the American public, too. Our future depends on it.

Trump Attorneys’ Ethics Violations Require State Bar Action

Back in December 2020, as the nation unknowingly marched toward the infamous January 6th attack on the Capitol, then President Trump said, according to reporting in the book Peril, “Lawyers, I have nothing but lawyers that stop me on everything. I’m very embarrassed by my lawyers and the Justice Department. At least [Sydney Powell] is giving me a chance.” Trump was lamenting Department of Justice (DOJ) attorneys’ efforts to stop him from appointing attorney Sydney Powell as special counsel to pursue an investigation in support of Trump’s fraudulent ‘Big Lie’ claim: Powell would eventually plead guilty to several misdemeanors in the Georgia election interference case.

Fast forward to 2025, and re-elected President Trump has appointed new leadership at the DOJ that is engaging in a purge of attorneys who may object to the administration’s malfeasance, with those who remain seeming to have taken heed of his infamous words. DOJ attorneys are not only doing nothing to stop the President from pursuing an all-out attack on the rule of law, they are enabling him by becoming active participants in the attack.

It would be impossible to detail every ethics violation by the Justice Department, actual or potential, here. However, one that sent shivers down the spine of the profession and should be the root of concern for the public is DOJ’s acquiescence to Trump administration executive orders and bullying extortion tactics attacking some of the nation’s largest and most prominent law firms and their lawyers. In short, the orders sought to suspend security clearances issued to the firms’ lawyers; restrict access to government buildings; ban the government from providing resources to these law firms, including compartmentalized information facilities; ban government hiring of law firm employees; and call for termination of government contracts for which law firms have been hired to provide services, including clients’ government contracts.

While it seems most everyone in the law, media, and public have acknowledged the immoral and likely illegal attack on the profession, the entities charged with regulating the legal profession — state bar associations and their regulatory and disciplinary commissions — are sitting idly by without a peep.

High-Level Intimidation & Extortion

One such attack was against the Paul Weiss firm. The White House’s executive order threatened the firm, its partners, and its clients economically to the tune of billions of dollars. In response, the firm, along with many others fearing similar executive orders, quickly capitulated

The victims of this intimidation — high-powered, high-paid lawyers — promised to dismantle things like their diversity, equity, and inclusion programs with no showing that the programs ran afoul of any federal antidiscrimination law. Trump’s DOJ also asked that certain individual attorneys be disciplined. Paul Weiss was forced to besmirch one of its own attorneys who Trump claimed wrongly pushed for his prosecution in Manhattan even though in the end, Trump was criminally convicted. But it didn’t end there. The administration asked for an exchange of legal services for the “favor” of the administration allowing the law firms to continue to have access to the federal government in the interests of their clients. Paul Weiss (like several of the other targeted law firms) promised to perform tens of millions of dollars’ worth of pro-bono work for Trump for loosely defined “special projects.”

The message had been sent: even a large law firm with seemingly unlimited financial capability could not fight back against Trump and his new government attorneys without great risk both financially and personally. The reasons to be afraid were set. In response to this capitulation, the White House promised to continue targeting large law firms with these executive orders and it has. At least nine law firms agreed to terms with the Trump Administration to avoid executive orders.

Marc Elias, one of the attorneys targeted by the administration, estimates nine of the largest law firms targeted by the executive branch have pledged $940,000 of free legal services to Trump. Another had the estimate as much higher, from $40 million to $125 million. This is high-level bullying of the worst kind: government attorneys extorting private attorneys to do the bidding of the President for his personal gain.

It should be noted that not all law firms have capitulated. Four targeted law firms, including Perkins Coie, Jenner & Block, WilmerHale, and Susman Godfrey, have challenged the executive orders targeting them as a violation of the firm’s First Amendment speech, association, and petition rights, as well as their Fifth Amendment due process rights. At the district court level, each of these firms have been successful in their challenges.

Attorney Protestations

Despite an outcry for bar associations to speak up on the attack on the rule of law as far back as October 2023, it was only in August/September of 2024, that American Bar Association (ABA) President Mary Smith declared that “Lawyers Must Protect Democracy Now,” citing a “disappearing trust” in our democratic institutions. Properly, President Smith noted, “it is our oath to [actively] uphold justice and the Constitution,” but “many lawyers are not fully engaging with their ethical obligations . . . diminishing the profession’s role as keepers of democracy and the rule of law.”

Yet, more lawyers are taking notice now that the attacks on the rule of law are hitting the profession close to home. Attorneys see other attorneys engaging in conduct which is prejudicial to the administration of justice and the rule of law. At risk is the basic constitutional rights to effective assistance of counsel under the Sixth Amendment and the right to due process of law under the Fourteenth Amendment.

In the early days of the second Trump administration, over 50 bar associations, mostly metropolitan and county bar associations, also condemned 'government actions that seek to twist the scales of justice' including the intimidation of law firms and lawyers. Also, over 1,300 former alumni of the DOJ, who have collectively served both Republican and Democratic administrations, have condemned President Trump’s and the DOJ’s campaign of intimidation and retaliation against lawyers and law firms. They have called such executive branch actions, “an affront to the Constitution and the rule of law . . . undermin[ing] our legal system, the pursuit of justice, and our democracy.”

Generally speaking, it is the state bars that issue the state attorney licenses required to engage in the practice of law. Through their disciplinary arms, they also can  monitor their licensed attorneys to make sure they stay true to their oath to “support [protect, uphold, or defend] the law, the Constitution of the United States and the constitution” of their state in which they are being admitted, continue to maintain the character and fitness to practice law, and steer clear of violating the many ethics rules which are supposed to guide the manner by which they practice law.  This commonly happens when a complaint is filed with the proper disciplinary authority.

In this instance, a complaint would not be necessary because the whole world knows what happened as it is a matter of public record and the players are easily identifiable.

Ethical Basis for Bar Association Investigation and Discipline

It is incumbent upon state bar disciplinary bodies to investigate and punish the ethical violations associated with the law firm executive orders. Intimidation of the sort reflected in the potential enforcement of these orders is always a basis for disciplining an attorney. As one court noted, “[t]his type of conduct ‘has a dramatic impact on the public’s confidence in the integrity of the Bar.” Intimidation is commonly associated with cases involving harassment. In the case of the executive orders, the  threat to use the coercive power of the government to curb core constitutional rights — including rights to speech, association, counsel, and due process itself —is much, much worse. The obvious nature of the misconduct is clear even under a cursory review of ethical rules.

Under the American Bar Association’s Model Rules of Professional Conduct, Rule 8.4, entitled, “Maintaining the Integrity of the Profession,” subpart (d) makes clear it is professional misconduct for a lawyer to, “engage in conduct that is prejudicial to the administration of justice.” Subpart (e) goes further and makes it professional misconduct to “state or imply an ability to influence improperly a government agency or official.” or “to achieve results [influence improperly a government agency or official] by means that violate the Rules of Professional Conduct.”

In the Comments to Rule 8.4, the basis for an investigation and for hearings potentially resulting in discipline become more obvious. The comments state:

Offenses involving violence, dishonesty, breach of trust, or serious interference with the administration of justice are in that category. A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation.

Further, the Comment recognizes, “[l]awyers holding public office assume legal responsibilities going beyond those of other citizens. A lawyer's abuse of public office can suggest an inability to fulfill the professional role of lawyers.”

Both subparts of the rule and the Comment plainly address the conduct of any attorney who helped to develop or stands at the ready to enforce the executive orders.

The law firms that have capitulated to the administration, while victims of this intimidation, must also be held to account for the effect such capitulation may have on their ability to serve as zealous advocates for their clients and that may, in and of itself, be “prejudicial to the administration of justice.”

Law firms that have made deals with an administration that has pointedly criticized those firms for their work on behalf of certain clients or for their reliance on certain legal arguments or positions, create an inherent conflict of interest. It is reasonable to question  the ability of lawyers within those firms to zealously represent the interests of their clients when they owe something to the government in return for what gangsters call “protection,” but more closely resembles extortion. Government attorneys who induce law firms and their attorneys to violate ethics rules violate Rule 8.4’s prohibition in subpart (a) of “induc[ing] another [attorney]” to “violate the Rules of Professional Conduct.”

This pattern of unethical intimidation and capitulation by government and private attorneys, respectively, warrant the time and attention of the disciplinary arms of state bar associations. To allow this behavior to go unexamined is an abdication of these bar associations’ critical role in ensuring the integrity of the profession and protecting the public.

Criminal Issues

In a recent review of the risks associated with attorneys preemptively acceding in the government shake-down of these large law firms, we are reminded that like so many other attorney ethical gaffs, they are often associated with criminal misconduct. In agreeing to provide hundreds of thousands if not millions of dollars’ worth of pro bono representation in return for the Trump administration treating them favorably, the attorneys at these firms could be accused of “influenc[ing] improperly a government agency or official,” more commonly known as bribery. Federal and state criminal statutes apply to such criminal conduct when it involves a quid pro quo, extortion, or racketeering. Since most of the involved law firms are international law firms with offices in foreign countries, the criminal misconduct may violate international law too.

While state bar associations and disciplinary commissions do not typically bother themselves with the ethics of criminal conduct until the latter is adjudicated, this is a different situation from the typical case since government attorneys, the law enforcement here, are actual participants in the unethical, public misconduct. At a minimum, this is worthy of a public statement or opinion by the state bar associations. More appropriately, it is worthy of immediate investigation and the meting out of discipline from censure to those with minor roles in the misconduct to outright suspension and disbarment of the main actors who masterminded or executed the unethical and criminal schemes.

Conclusion

Federal workers, including federal prosecutors, are accountable to the people, not to politicians, which is why they swear to “support and defend the Constitution,” and not any specific President. And yet, the DOJ is attacking the rule of law by engaging in intimidation and extortion to consolidate President Trump’s power by targeting law firms and attorneys. The swiftness with which at least eight law firms preemptively settled with the administrations without an executive order issue against them shows the chilling effect these orders can have on the entire legal profession made up of over 1.3 million attorneys. This affects not only the law firms and millions of lawyers, but the millions of potential clients who might have business and need an independent, zealous lawyer to challenge some federal action.

Bar associations and attorney disciplinary boards should take heed as there is little anyone can do to stop bad-doers like government attorneys who control the levers of power over other attorneys who might challenge them in court. Bar associations are not so limited.

Bar associations can start their own investigations into the happenings involving federal prosecutors and other administration lawyers targeting law firms. Afterall, attorney disciplinarians have a duty to protect the public. They have subpoena power too. They can mete out discipline such as censure, suspension, and even disbarment. Context matters and the context here — attacks on the legal profession and the rule of law through government action — is very serious.

Indeed, ten senators from the Senate Judiciary Committee called on the New York Bar Association to investigate one Trump federal prosecutor for acts that can be called intimidation and extortion too under the rules referenced above. There are many more attorneys whose conduct should similarly be investigated.

Bar associations should not sit idly by. They have an important role to play in protecting the legal profession, the rule of law, the public, and our democracy. The time to act is now.

James “Jim” Saranteas is a practicing attorney of 25 years with experience. Jim is a recipient of Loyola University Chicago School of Law’s Board of Governors prestigious St. Bellarmine Award in recognition for his distinguished contributions to the legal community. He continues to advocate on social issues as well as help law students with their advocacy skills.

America’s Gerrymandering Crisis: Time for a Constructive Redistricting Framework

Thanks to the actions of Texas Republicans, America has been plunged into a tit-for-tat redistricting faceoff that is oddly occurring in the midcycle period as politicians angle for advantage ahead of next year’s midterms. First, Texas Republicans at the urging of President Donald Trump himself have proceeded to redraw their state’s electoral map in a clear maneuver to grab an additional five congressional seats come November 2026. In response, and in a bid to also grab five additional seats for their side, California Democrats have finalized arrangements to launch their own effort in November via a ballot initiative to counteract the move in Texas.

The broader political context of these moves is quite noteworthy: the Republican majority in the House being razor thin and the midterm elections being traditionally unfavorable affairs for the party in power, the Republicans’ action amounts to a preemptive move to retain control of Congress and thereby shield the Trump administration from an anticipated Democrat pushback against Trump’s increasingly controversial agenda which has literally convulsed American politics. Given this scenario, the countermeasures undertaken by the Democrats was not only foreseeable but rather inevitable. For them to do otherwise would have amounted to what some groups like Common Cause have termed “unilateral political disarmament in the face of authoritarian efforts to undermine fair representation and people-powered democracy." (This invokes the proverbial scenario of “bringing a knife to a gun fight.”)

Nationwide, both parties are gearing up to confront each other in what promises to be a race to the bottom redistricting contest. These midcycle maneuvers, initiated by the Republicans, clearly seem to defy the normal practice under which redistricting exercises are conducted every ten years in accordance with the census cycle established in Article I Section 2 of the Constitution.

In simple terms, what the two parties are doing here is known as “gerrymandering,” a notorious maneuver in which electoral maps are intentionally drawn to give an advantage to one side, usually the side drawing the maps, over the other side.  More specifically, what we are seeing in Texas and California, the country’s two most populous states, is a species of gerrymandering behavior known as “partisan gerrymandering” (based on party); the other kind is known as “racial gerrymandering” (based on race).

As between the two, while racial gerrymandering is prohibited, as a violation of Section 2 of the landmark Voting Rights Act of 1965, partisan gerrymandering is deemed permissible, thanks to the US Supreme Court’s decision in the 2019 case of Rucho v. Common Cause, which said that such situations belong to the class of non-justiciable “political questions,” where federal court intervention is unsuitable because they lack the “objective” criteria to assess those situations. As we’ve seen in litigation post-Rucho, things can get tricky in circumstances where it may not be easy to separate the “racial” and “partisan” components of a given gerrymandered situation.

A Mutual Skullduggery 

While Republicans control more state legislatures than Democrats and thus wield greater ability to engage in gerrymandering behavior, the evidence clearly suggests that both parties are guilty of the mischief of partisan gerrymandering. On the Republican side, aside from Texas, plans are reportedly underway to extend this Trump-inspired bout of gerrymandering to other Republican-controlled states like Indiana, Missouri, and Florida.

In Texas, for instance, where Kamala Harris won 42% of the vote in the 2024 presidential election, Democrats hold only 34% of the congressional seats (13 of 38 seats). In Indiana, Democrats hold two of seven seats, which is 22% despite Harris’ 40% share of the 2024 vote. In Missouri: Democrats hold two of eight seats, which is 25% despite Harris’ 40% share of the 2024 vote. In Mississippi: Democrats hold one of four seats, which is 25% despite Harris’ 38% share of the 2024 vote.

On the Democrat side, a similar sampling of representation patterns tends to show even more pronounced partisan gerrymandering: blue states like Massachusetts, Connecticut, and New Mexico, for instance, have zero Republican members in their congressional delegations, even though Trump won 36%, 42% and 46% respectively in those states in 2024. In places like New Jersey, the Republicans hold only 3 out of their 12 congressional seats (which is 25%) despite Trump’s 46% share of the votes in that state in 2024. In California, Republicans hold only 9 of the 52 congressional seats (which amounts to 17%) despite Trump’s nearly 40% vote share in California in the 2024 presidential poll.

In Illinois, where many of the runaway Democrat legislators from Texas had fled to during the redistricting controversy in their home state, Republicans hold only 3 of the 17 congressional seats in that state’s delegation, which is roughly 18%, despite Trump’s 43% share of the vote in the 2024 presidential poll. Who could soon forget the awkward scene on August 5 when comedian Stephen Colbert of The Late Show confronted his guest JB Pritzker, Illinois’ governor, with a map showing the truly bizarro shape of his state’s congressional District 17, a shape the comedian described as “crazy.”

Although legally permissible, the downside of partisan gerrymandering is enormous, not least because the victimized voters of the rival party are denied the genuine opportunity to elect representatives of their choice, in violation of the 14th Amendment’s equal protection guarantee. Not to mention the corrosive effect of this invidious maneuver on the citizens’ faith in the overall legitimacy of the electoral system.

The Case for Redistricting Commissions 

To be clear, redistricting is an inherently political exercise that cannot be rid of all partisanship. Yet, a good starting point in draining the toxic partisanship out of the exercise is to remove it from the grips of state legislatures via nationwide shift to the use of redistricting commissions, which are already in use in one form or another in more than 20 states across the country. Among the available options, the optimal structure for the redistricting commissions would be one that is geared toward greater public participation in the process and away from direct control by politicians.

For instance, elected officials and their direct associates should be excluded from the redistricting commissions, which bodies should be mandated to hold public hearings and receive public input on their proposals, both online and in-person. Plus, whatever data the redistricting commissions are relying on for their proposals must be made available for public examination. To further isolate the process from partisanship, the final redistricting proposals produced by the commissions should not be further subjected to final legislative approval, as happens in places like New York. In this scenario, anyone dissatisfied with the proposals, say, on equal protection or other constitutional grounds or even on a claim that the commission violated its own terms of reference, might then seek their remedy in court.

Given the importance of the task at hand, some federal intervention might well be needed to harmonize the redistricting process across the country and thereby enhance its credibility and legitimacy among the people. For instance, Congress could use its authority under the Elections Clause (Article I Section 4) to mandate a nationwide shift to the use of redistricting commissions everywhere, in addition to prohibiting the bitterly polarizing practice of midcycle redistricting, a situation that only betrays the motivation of politicians to ‘game the system’ for partisan advantage.

Whatever the imperfections of the redistricting commission approach, these bodies can be trusted more than self-interested political actors to draw maps in accordance with the public interest, so that the voters are indeed the ones choosing their leaders and not the other way around.

Conclusion

What is happening in Texas and California, and perhaps soon to come in other places, is less an exercise in representative self-governance in a democratic republic than a corruption thereof, a situation made worse by the extremely polarized nature of current American politics. Thus, there is no better time than now for a nationwide shift to the use of redistricting commissions and a prohibition on midcycle redistricting to streamline the exercise and enhance its credibility with the voters.

Carl Unegbu, a lawyer and journalist, serves as a vice chair of the New York Chapter of the American Constitution Society. He can be reached at ocarls@yahoo.com.  

 

 

To Defeat Authoritarianism, We Need Labor

This Labor Day, institutional leaders contemplating how to stand up to arbitrary power should reflect on the old IWW slogan: an injury to one is an injury to all. In other words, a collective problem calls for a collective response. Institutions should look to the labor movement, in part for organizing and advocacy strategies, but also because any coalition to defend democracy must include organized labor.

Less than one year into his second term, President Trump’s most consistent priority seems to be imposing costs on anyone who disagrees with the administration’s views, while rewarding and empowering his favorites: “tough on crime” rhetoric notwithstanding, January 6 rioters got pardons; the people who prosecuted them got fired. Harnessing the executive branch and his own bully pulpit, Trump aims to force institutions to choose between their wallets, and their integrity. These ultimatums should be understood as assertions of power; while couched in legal language, they bear at most tenuous relationships to law.

Understandably, institutions have struggled to respond to these threats. One reason: they have mostly been going it alone. This is partly because the Trump administration has tended to set its sights on one news outlet, university, law firm, or city at a time; others may have hoped that by keeping quiet, they’d avoid being next. (The less said about law firms that tried to gain a competitive advantage by poaching lawyers or clients from firms targeted by the Trump administration, the better.)

In building coalitions to protect their own independence and democracy more generally, institutions should view organized labor as a partner, rather than an adversary. Research by political scientists confirms that labor unions are important to healthy democracies for several mutually reinforcing reasons. Among them, unions help reduce income inequality, which corrodes democracy. As democratically run organizations, unions are “schools for democracy,” with members developing political skills that they then bring to electoral politics as voters, volunteers, and candidates. They effectively amplify their members’ concerns in the political process, while also increasing their members’ knowledge about politics. And union representation tends to decrease white workers’ racial resentment, which is an important vector of authoritarianism.

For similar reasons, the historian Joseph McCartin recently called for “a labor-led democracy movement.” This requires at least two things. First, for unions to embrace this role, directing even more of their limited resources to educating and mobilizing their own members and nonunion workers in defense of democracy. To be clear, most unions are already robustly engaged in this work—though a small handful have recently failed important tests of inter-union solidarity. Second, other institutions – especially those that depend on democracy – must view unions first as allies in the fight against authoritarianism. To put it more concretely: a university, non-profit, or media outlet that engages in union-busting in 2025 is making a strategic mistake, prioritizing limited short-term benefits over the big picture.

Unions are already on the front lines of organizing resistance to anti-democratic policies. To start with some recent examples, unions (together with other groups) have organized protests against draconian immigration policies, the deployment of militarized forces in US cities, and mass firings of federal workers. And by naming apprentice Kilmar Abrego Garcia as their union brother, the leadership of the Sheet Metal Workers union made it harder for the Trump administration to claim to be acting in the interests of and with the support of the (white) working class.

Unions also push employers to defend workers’ safety and professional integrity, and they act on their own (or with other movement groups) when employers fall short. Within a workplace, unions can urge employers to show backbone when faced with an unlawful demand by the Trump administration. They can also raise the costs to employers of capitulation or cooperation, as in the case of a striking Teamsters local’s demand that the employer not over-comply with ICE. Outside of workplaces, unions call public attention to how Trump administration policies will harm their members or the public. And unions litigate on behalf of their members. For example, the NewsGuild was part of a coalition of plaintiffs that sued the Department of Homeland Security over officers’ use of force against both protestors and reporters covering ICE raids in Southern California. The American Association of University Professors, has filed several lawsuits over threats to academic freedom; these include challenges to the administration’s revocations of student or employment visas because of protected speech, and threats to yank federal funding over DEI programs. And unions representing public employees are litigating over the administration’s many efforts to close entire federal agencies despite statutory mandates, engage in mass layoffs and push federal workers to resign, and muzzle federal workers who might express dissent. It may be that private employers who are also harmed by the subjects of these cases either openly or tacitly support them, though in at least one case – an AAUP suit challenging funding cuts at Columbia – litigation highlighted that workers wanted to fight for their institution’s independence, despite leadership’s decision to seek a settlement with the Trump administration.

In a sense, the Trump administration seems to agree with this analysis—its actions to date suggest that it views the labor movement as another institution to be either co-opted or retaliated against. It recently invoked “national security” to suspend collective bargaining rights for hundreds of thousands of workers at agencies ranging from the Social Security Administration to the EPA. As the unions argued in a lawsuit challenging the first of these orders, the list of covered agencies makes little sense when viewed through the lens of national security – but it does track unions’ opposition to Trump administration policies.

President Trump also fired NLRB Member Gwynne Wilcox, despite statutory language that Board members may be removed only for “neglect of duty or malfeasance in office.” This had the immediate effect of depriving the Board of a quorum, and preventing it from deciding unfair labor practice cases. (Trump later nominated two management-side lawyers to the Board; they are awaiting Senate confirmation.) And two Trump-appointed Fifth Circuit judges recently barred the NLRB from proceeding with three unfair labor practice cases at all, pending adjudication of this and other challenges to the Board’s structure. This interim order is remarkable because it goes further than the likely remedy if the plaintiffs ultimately succeed – in previous similar cases, courts have excised good-cause protections from statutes without striking those statutes down altogether – and because it effectively makes compliance with labor law optional within the Fifth Circuit. While this may all seem like good news for employers who dislike the NLRA’s protections for workers’ concerted activity, it should alarm both employers and unions that a President bent on rewarding his friends and punishing his enemies would be able to manipulate the Board’s composition at will.

There are already some excellent examples of collective action to defend institutional independence and democratic values. For one, hundreds of law firms joined amicus briefs in defense of the firms targeted by executive orders; the list included plenty of plaintiff- and union-side firms, speaking up in defense of firms that are normally adversaries. Showing a united front, even symbolically, can make a difference – but institutions should also consider making more tangible commitments to defending themselves and each other. Numerous university faculty senates, including at the University of Minnesota where I teach, have urged their administrations to establish a mutual legal defense compact. (Such a compact might even deter the administration from targeting individual schools, much like a robust strike fund might motivate an employer to reach an agreement.) Law firms can join with unions and civil rights groups to provide pro bono representation for federal workers and other individuals targeted by the administration. The point is not that any one of these efforts will save the day on its own, but instead that institutions, unions, and other civil society groups should strategize and experiment.

When universities cede their academic freedom, it becomes harder for researchers anywhere to work collaboratively and without fear; when law firms agree to provide free legal services to the government and refrain from taking up disfavored causes, it chips away at the rule of law on which lawyers and clients alike rely. These institutions, along with the media, civil society groups, unions, and others, depend on democracy and the rule of law, and vice-versa. Recognizing this fundamental shared value suggests a path forward – at least for now, we’re all in it together.

Charlotte Garden is a professor at the University of Minnesota Law School; the views expressed in this essay are hers alone.