David Dreyer: Why I signed on to fight the White House

“There is no power or authority without responsibility, and…accept[ing] the one…cannot escape the other.”

—Emperor Haile Selassie

Emperor Selassie ruled Ethiopia for most of 40 plus years. He worked through many complicated times and challenges as the African country struggled with social and religious conflicts, including abolishing slavery.

Revered by many, criticized by others, no one doubted his conscientious dedication to work for what was best for his country.

We judges have power and authority and, accordingly, responsibility. It is the duty to apply the law fairly and equally. We also share the obligation, with lawyers everywhere, to the faithful stewardship of the profession, and most importantly, the legal system of the United States.

Our power cannot come without these responsibilities.

Earlier this year, the current White House administration began a series of actions to oppose institutions and individuals whom it perceived to be against its policies or politics. Some of those are lawyers and law firms.

Most notably, there are executive orders aimed at large firms, like WilmerHale, Jenner & Block, and others, to “prevent the transfer of taxpayer dollars to Federal contractors whose earnings subsidize, among other things, activities that are not aligned with American interests . . .” Such interests are designated to include representing trans sexual clients and immigrants, and hiring staff who worked in previous Justice Department investigations of the current president.

As a result, WilmerHale sued the executive branch of the president, et.al. Jenner & Block sued the Department of Justice. Both are seeking summary judgment by arguing the executive orders violate the First Amendment by government retaliation, punishment, and attack on freedom of association—as well as due process violations, separation of powers, and contrary to the Fifth and Sixth Amendment freedoms for clients to counsel of their choice.

So far, judges have expressed skepticism for the arguments of the White House.

In support of plaintiff law firms, there are amici briefs filed in both cases.

One amicus brief is signed by 676 law professors. Another is signed by 808 law firms. Yet another is signed by 342 former judges, state and federal, from all over the country.

I am one of the signers. When I was asked, I decided that I had no choice. I could not faithfully adhere to my responsibility as a judge without signing. It is not something I could honestly face if I had said “no thanks.” The judges’ amici briefs make direct succinct arguments. Overall, they state their interest:

“…in ensuring both the substance and appearance of justice…always preserving the freedom of lawyers to advocate for their clients…providing judges with the complete and factual record needed…preserving the discretion judges need to regulate the conduct of lawyers…”

The judges’ arguments claim that the executive orders apply improper political restrictions to access to courts by limiting which clients and law firms can appear, and “thus appears designed to warn clients” against retaining the law firms, and “warn both clients and other law firms that bringing suits against the Trump administration may lead to punishment.”

In addition, they argue that professional independence of counsel is “required” by the professional rules of conduct, and that courts cannot be “confident that the facts and law relevant to a matter have been fully presented if a firm must look over its shoulder in fear of becoming the target of punitive action.”

Further, they argue that the executive order interferes with the judicial role of regulating the conduct of lawyers, and that our system cannot function otherwise. Finally, they claim that the executive orders incite a “general climate of hostility toward adjudication and toward judicial officers . . . and invite lawlessness.”

But the central theme of the judges’ briefs is the rule of law, “presided over by neutral and independent judges.” When any outside power or influence invades, we judges have to defend. When any political pressure appears, we have to ignore. When any government action tries to lessen our authority and responsibility, we have to enjoin.

There should be no glory in anything judges have to do, only in the fact that they can do it in a democracy like no other.

When I joined the amici briefs with my colleagues, I did so with some disappointment about why it had to be done, but pride notwithstanding.

I think Emperor Selassie would agree that I had to do it.•

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Senior Judge David J. Dreyer presided as a judge of the Marion Superior Court from 1997-2020. He is a graduate of the University of Notre Dame and Notre Dame Law School and a former board member of the Indiana Judges Association.