Jonathan P. Baird

Any student of fascist and authoritarian regimes knows the importance of the role of lawyer. The regimes always seek to use lawyers to justify their descent into lawlessness. The sad truth is that when fascism has emerged, most lawyers and judges have accommodated and collaborated with the fascists. Careerism, fear and conformity have all played a role. That was true in the classic cases of Italy and Germany.

The Benito Mussolini regime in Italy abolished independent bar associations and replaced them with fascist-controlled syndicates. Lawyers were required to pledge an oath of loyalty to the regime. The new legal code subordinated civil rights and liberties to the supremacy of the state.

Giacomo Matteotti, a lawyer and democratic socialist leader, courageously denounced Mussolini’s dismantling of democracy, but he was kidnapped and murdered by a fascist death squad. Some lawyers tried to uphold legal neutrality but they were forced underground. Dissident lawyers represented anti-fascist defendants in court but they faced enormous risks.

The Italian legal establishment including most lawyers, judges and law professors, worked to reshape the law to be an instrument of Mussolini’s rule. They implemented and enforced antisemitic legislation.

In Germany, the story was much the same. The legal profession never took a stand against Adolph Hitler. German lawyers facilitated the Nazis’ ability to carry out their agenda and rule, including their many antisemitic decrees. The Nazis were big on issuing decrees that suspended significant provisions of the German constitution like the right to assembly, freedom of speech and freedom of the press.

As in Italy, the German lawyers saw themselves as loyal state servants. Law became a supposed means to serve the Aryan race. In April 1933, the Nazis suspended from duty all Jewish judges, public prosecutors, district attorneys and law professors. This preceded the Nazi disbarment of all Jewish lawyers which was no small thing as there were around 18,000 Jewish lawyers in Germany then. There was no outraged public reaction. With few exceptions, the German lawyers, whatever they privately thought, went along.

What is surprising and remains little known is that there was some heroic resistance by lawyers, including Jewish lawyers, to the fascist onslaught. I wanted to highlight one German Jewish lawyer who did resist. Ernst Fraenkel, a Social Democrat and a Jew, worked as a labor lawyer up until 1938 when he had to flee Germany. His story should be better known.

Fraenkel represented political defendants in court and he won some acquittals. He was a lawyer for the Metal Workers Union. The Nazis destroyed that union but many former members of the union came to him for legal assistance. Although the Nazis tried to discourage non-Jews from getting legal assistance from Jewish lawyers, Fraenkel had a large client base from the left-wing community.

Even in the early years of the Nazi regime, criminal defense attorneys were so afraid that they barely represented their clients but that was not true of Fraenkel. He fought in court and continued his representation in the mid-1930’s, something that took great courage. Because he was a World War 1 veteran, he got an exception from the rule disbarring all Jewish lawyers. Many other Jewish lawyers were also World War 1 veterans which explained why many Jewish lawyers continued to practice law for a few years after the start of the Nazi regime.

Fraenkel raised issues other lawyers were afraid to raise. On behalf of political defendants, he questioned the validity of confessions elicited under Gestapo torture. He stuck to the facts in his cases which was a dangerous practice because it exposed Nazi crimes.

He was active in early political resistance against the Nazis, writing and distributing illegal underground pamphlets. He closely allied his resistance efforts with two non-Jewish lawyers, Heinrich Reinefeld and Werner Willie.

Fraenkel continued on until September 1938 when he was warned he was going to be arrested. He escaped to the United States. In his last years in Germany, he started to write an analysis of totalitarianism he called The Dual State. It described how a legal system became nazified. The book showed the coexistence of two systems, an older legal system alongside a new set of authoritarian rules upholding Nazi violence and political control. Fraenkel managed to get his book manuscript out of Germany in a French diplomatic pouch. He published the book in the United States in 1941.

The earlier fascist experiences suggest we look at how American lawyers are faring under our current legal incarnation and I would argue the results are not encouraging. While there are great examples of lawyers resisting the Trump regime, the American legal establishment has largely been passive. To quote the title of Jacob Weisberg’s book, Profiles in Cowardice.

The American Bar Association and the New Hampshire Bar Association pretend normalcy like nothing unusual has happened. Where to begin? January 6? ICE detentions and deportations without due process? ICE murders with no prosecutions? Big Law caving to Trump? White collar criminals buying pardons? Taxpayer-paid ads violating the Hatch Act? The list could go on and on. I barely scratched the surface.

The Bar tries to play it down the middle but what the Trump regime has wrought makes that impossible. American lawyers need to stop the passivity or we will lose our democracy. I don’t minimize what some lawyers and federal district court judges have done to stop the fascist assault but it has not been enough.
Our government is disappearing thousands of people without any due process. They act, get away with unlawful acts and dare anyone to stop them. No one has the power to shut it down. Even in the face of court orders they brazenly continue.

Democracy exists in a precarious danger zone but for the American legal establishment I would suggest complacency is the general rule. It is business as usual. The assumption must be that if we don’t talk about it, fascism will just go away. Honestly, lawyers should be screaming about the Trump regime’s legal wrecking. Instead the Bar acts like white lawyers in the South after the death of Reconstruction. Just pretend the lynchings are not happening.

Lawyers and judges could salvage their professional reputations by speaking up. As I saw on a sweatshirt at the No Kings demonstration, silence is complicity.