This week, I received emails from Connecticut Bar Association (CBA) members about a message posted by President Maggie Castinado, President-Elect James T. (Tim) Shearin, and Vice President Emily A. Gianquinto warning them about criticizing the prosecutions of former President Donald Trump. The message from the bar leadership is chilling for those lawyers who view cases like the one in Manhattan as a raw political prosecution. While the letter does not outright state that such criticism will be considered unethical conduct, it states that the criticism has "no place in the public discourse" and calls on members to speak publicly in support of the integrity of these legal proceedings.
The statement begins by warning members that "words matter" but then leaves the ramifications for bar members dangling on how it might matter to them. They simply note that some comments will be viewed as "cross[ing] the line from criticism to dangerous rhetoric."
According to the CBA, it is now considered reckless and unprofessional to make analogies to show trials or to question the integrity of the legal system or the judges in such cases.
For example, criticizing Judge Juan Merchan for refusing to recuse himself from the case is considered beyond the pale. Many lawyers believe that his political contributions to President Biden and his daughter’s major role as a Democratic fundraiser and activist should have prompted Merchan to remove himself (and any appearance of a conflict). I have been more critical of his rulings, which I believe were both biased and wrong.
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Yet, the CBA is warning lawyers that such comments can cross the line. The letter assures members that they are free to criticize, but warns that attacking the ethics of a judge or the motivations behind these cases is dangerous and could spark violence.
I have previously denounced overheated rhetoric and share the concern over how such rage rhetoric can encourage violence. After the verdict, I immediately encouraged people not to yield to their anger, but to trust our legal system. I believe that the verdict in New York may ultimately be overturned. I also noted that I do not blame the jury, but rather the judge and the prosecutors for an unfounded and unfair trial.
Of course, the concern over rage rhetoric runs across our political spectrum. While rarely criticized in the media, we have seen an escalation of reckless rhetoric from the left. For example, Georgetown Law Professor Josh Chafetz declared that "when the mob is right, some (but not all!) more aggressive tactics are justified."
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My concern is not with the plea for lawyers to take care that their comments do not encourage such "aggressive tactics." The problem is the suggestion that lawyers are acting somehow unprofessionally in denouncing what many view as a two-tier system of justice and the politicization of our legal system.
Like many, I believe that the Manhattan case was a flagrant example of such weaponization of the legal system and should be denounced by all lawyers. It is a return, in my view, to the type of political prosecution once common in this country.
For those lawyers who view such prosecutions as political, they are speaking out in defense of what they believe is the essence of blind justice in America. What is "reckless" to the CBA, is righteous to others. Notably, CBA officials did not write to denounce attacks on figures like Bill Barr, or claims that the Justice Department was rigging justice during the Trump years.
Likewise, the letter focuses on critics of the Trump prosecutions and not the continued attacks on conservative jurists like Supreme Court Justice Samuel Alito. It has never published warnings about those calling conservative justices profanities, attacking their religion, or labeling them "partisan hacks" or even other "insurrectionist sympathizers." Liberal activists have been calling for stopping conservative jurists "by any means necessary."
In Connecticut, Democratic Sen. Richard Blumenthal has warned conservative justices to rule correctly or face "seismic changes." That did not appear to worry the bar. Likewise, Senate Majority Leader Chuck Schumer, D-N.Y., also declared in front of the Supreme Court, "I want to tell you, [Justice Neil] Gorsuch, I want to tell you, [Justice Brett] Kavanaugh, you have released the whirlwind, and you will pay the price."
The letter goes further and suggests that lawyers should speak publicly in support of trials like the one in Manhattan, a view that ignores the deep misgivings over the motivations and means used in New York to target an unpopular figure in this city. You have the top CBA officials calling on lawyers to take a public position that is opposed by many lawyers and citizens in defending the integrity of these prosecutions. Imagine the response if the Idaho State Bar called on its lawyers to speak out against these cases and declared that it is reckless or unprofessional to defend them.
I expect that, in the very liberal CBA, the letter is hardly needed. Indeed, this letter is likely to be quite popular. Yet, I would have thought that CBA officials would have taken greater care to respect the divergent opinions on these trials and the need to avoid any statements that might chill the exercise of free speech.
Ironically, the letter only reinforced the view of a legal system that is maintaining a political orthodoxy and agenda. These officials declare that it is now unprofessional or reckless for lawyers to draw historical comparisons to show trials or to question the motives or ethics underlying these cases. They warn lawyers not to "sow distrust in the public for the courts where it does not belong." Yet, many believe that there is an alarming threat to our legal system and that distrust is warranted in light of prosecutions like the one in Manhattan.
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As discussed in my new book, "The Indispensable Right: Free Speech in an Age of Rage," critics of political prosecutions under the Crown and during the Adams Administrations were often threatened with disbarment or other legal actions for questioning the integrity or motives of judges or prosecutors. It is not enough to say "well that was then and this is now." The point is that the bar association also has a duty to protect the core rights that define our legal system, particularly the right of free speech.
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Again, these officials are not threatening action against critics of these cases. However, as evidenced by the emails in my inbox, it is being taken as a warning by many who have misgivings over these prosecutions.
Our legal system has nothing to fear from criticism. Indeed, free speech strengthens our system by exposing divisions and encouraging dialogue. It is orthodoxy and speech intolerance that represent the most serious threats to that system.
Here is the CBA message in its entirety:
Dear Members,
Words matter. Reckless words attacking the integrity of our judicial system matter even more.
In the wake of the recent trial and conviction of former President Donald Trump, public officials have issued statements claiming that the trial was a "sham," a "hoax," and "rigged"; our justice system is "corrupt and rigged"; the judge was "corrupt" and "highly unethical"; and, that the jury was "partisan" and "precooked." Others claimed the trial was "America’s first communist show trial"—a reference to historic purges of high-ranking communist officials that were used to eliminate political threats.
These claims are unsubstantiated and reckless. Such statements can provoke acts of violence against those serving the public as employees of the judicial branch. Indeed, such statements have resulted in threats to those fulfilling their civic obligations by sitting on the jury, as evidenced by social media postings seeking to identify the names and addresses of the anonymous jurors and worse, in several cases urging that the jurors be shot or hanged. As importantly, such statements strike at the very integrity of the third branch of government and sow distrust in the public for the courts where it does not belong.
To be clear, free speech includes criticism. There is and should be no prohibition on commenting on the decision to bring the prosecution, the prosecution’s legal theory, the judge’s rulings, or the verdict itself. But headlines’ grabbing, baseless allegations made by public officials cross the line from criticism to dangerous rhetoric. They have no place in the public discourse.
It is up to us, as lawyers, to defend the courts and our judges. As individuals, and as an Association, we cannot let the charged political climate in which we live dismantle the third branch of government. To remain silent renders us complicit in that effort.
Respect for the judicial system is essential to our democracy. The CBA condemns unsupported attacks on the integrity of that system.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He is the author of "The Indispensable Right: Free Speech in an Age of Rage" (Simon and Schuster, 2024).
