Jonathan P. Baird

Last Tuesday I attended the Campaign for Legal Services Kickoff Breakfast held at the Grappone Center in Concord. It was a wonderful and well-attended event supporting an entirely worthy goal – legal assistance for poor, elderly and disabled people. Many prominent members of the New Hampshire Bar were present as well as Gov. Kelly Ayotte and our two Congresspeople, Chris Pappas and Maggie Goodlander.

One thing that bothered me about the event was what was not said. You would not have known that the rule of law in America is under serious attack. I heard a few vague references to the importance of due process and the difficulties of being a judge but mostly I heard platitudes about how great the justice system is. There was an unremitting effort to be bipartisan and to pretend normalcy.

Ignoring the 800 pound gorilla in the room doesn’t serve the rule of law. Times are anything but normal. An authoritarian regime is actively attempting to dismantle constitutional rule and it is not hidden. Neither on a state or national level has the Bar responded. This is too reminiscent of other historical circumstances where lawyers did not speak up and collaborated with fascism.

In the last week, President Trump’s senior advisor Stephen Miller explained that the Trump administration was considering suspending habeas corpus. He did not know or care that the authority to suspend habeas is vested in Congress, not the Executive branch. Miller, not a lawyer, said:

“That’s an option we’re actively looking at. A lot of it depends on whether the courts do the right thing or not.”

The Latin translation for habeas corpus is “deliver the body”. It goes back to the Magna Carta and the idea that people may not be detained without being brought before a judge. It is hard to overstate the importance of habeas corpus. I think it is fair to say it is a bedrock principle in American jurisprudence. No one is above the law, at least theoretically. The principle is embedded in our Fifth and Fourteenth Amendments that hold that “no person should be deprived of life, liberty or property without due process of law”. I am reminded of John Adams’ famous quote:

“We are to look upon it as more beneficial, that many guilty persons should escape unpunished, than one innocent person should suffer. The reason is, because it’s of more importance to community that innocence should be protected, than it is, that guilt should be punished; for guilt and crimes are so frequent in the world, that all of them cannot be punished; and many times they happen in such a manner, that it is not of much consequence to the public, whether they are punished or not. But when innocence itself, is brought to the bar and condemned, especially to die, the subject will exclaim, it is immaterial to me, whether I behave well or ill; for virtue itself, is no security. And if such a sentiment as this, should take place in the mind of the subject, there would be an end to all security what so ever.”

The Trump administration is the opposite of John Adams. Their priority is to punish the innocent and to use the law to intimidate. The Kilmar Abrego Garcia case is a prototype for the lawlessness we are seeing. First removal without due process and then stonewalling in bad faith as the Administration ignores a Supreme Court order. No one talks about the over 200 Venezuelan men who were removed from the U.S. without due process. They are all rotting away in a foreign prison. 60 Minutes showed that 75% of these men had no criminal record yet they have been wrongly renditioned.

ICE has been playing the role of Trump’s gestapo. The stories of its outrageous misconduct have been multiplying. Masked and unidentified ICE agents have been disappearing people in the manner of 1970’s-1980’s Latin American fascists. On May 4, ICE agents took away a man filling up gas in his truck at a gas station in Oxnard, California. They disappeared him, drove away and left his children in the truck.

On April 24, ICE agents terrorized a family of U.S. citizens when they broke into a house in Oklahoma City in the middle of the night but the search warrant was meant for someone else. ICE ordered the family out into the rain in their underwear and confiscated the family’s phones, laptops and cash savings as “evidence”. In the last two months, there are cases of U.S. born children having been wrongfully deported without due process. Trump is now seeking a six-fold increase in ICE funding.

Some of the immigrants ICE has picked up have been taken into custody for the crime of writing an op-ed and advocating for Palestinian rights. Now you get arrested and deported for having an opinion. What happened to the First Amendment? Tyrants don’t tolerate dissent.

Then there are the attacks on judges. Trump has displayed a troubling pattern of badmouthing judges who issue rulings he disagrees with. He calls the judges “radical left lunatics” and wants them impeached. Next the MAGA mob descends threatening the judge and his or her family. The Administration orchestrated the arrest of Wisconsin judge Hannah Dugan with the FBI Director Kash Patel posting a photo on X of the handcuffed judge doing a perp walk. This is all about intimidating and threatening the judiciary.

I also must mention the Administration’s perversion of pro bono work. Pro bono work was supposed to be about helping the needy but nine heavy hitter law firms have signed agreements to provide Trump a collective $940 million in free legal work. This is akin to a mob boss shaking down a business. What a terrible example these Big Law firms set!

While being critical of lawyers who bend the knee or stay silent, I also acknowledge and appreciate the heroic actions of many judges who are upholding the rule of law. These judges have shown courage and integrity. Their actions have been critical in holding back the authoritarian tide.

Any student of history knows things could get far worse in the U.S. but that does not negate the darkness and backwardness into which we have fallen as a nation. Trump is about hoarding power for himself. Lawyers and judges have a key role to play in preventing the onset of an American version of fascism.