– Scott Cummings, the Robert Henigson Professor of Legal Ethics and Professor of Law, UCLA School of Law
This is the fourth post of a Symposium on Militant Constitutionalism, comprised of 10 pieces. You can access the introductory post here.
Attacks on American democracy by the Trump administration have followed—and redefined—the autocratic legal playbook, in which the appearance of legality is mobilized to target and dismantle independent democratic institutions that check consolidation of executive power. While this playbook is deployed against all democratic guardrails—including the bureaucracy, civil society, the media, and universities—it is directed with particular force against the legal profession. This is because control of the legal profession permits autocratic leaders to define the meaning of law, which is the ultimate objective because then there is no one left to keep them within legal boundaries.
For this reason, it is important to consider arenas of militant democracy within and beyond courts—and thus beyond judicially driven forms of militant constitutionalism—to explore how legal actors in institutional sites of professional authority outside the state can act assertively to “wrench the gears” of autocratization and strengthen long-term democratic resilience. In short, one must consider “militant professionalism” as a key component of militant democracy, analyzing how lawyers in the independent legal sector and the organized bar may complement judicial activism and act in spaces where courts may not fully extend; and by looking beyond Europe to learn lessons from the United States as the world’s leading incubator of autocratic legalism. This inquiry should include analysis of how lawyers in the law firm and NGO sector can provide “ethical justifications capable of supporting militant constitutionalist positions” as Caruso and Stambulski suggest, and how the organized bar can counter efforts to weaponize the disciplinary system against judges and lawyers. This perspective complements militant constitutionalism by asking how courts themselves can exercise power to restrict and sanction lawyers who cross ethical lines in defense of illiberal (and, in the US case, often illegal) orders and how other professional actors, including law schools and the organized bar, which in the United States exercises delegated authority from state supreme courts, can push back against abuse by executive branch lawyers.
How Autocrats Target the Legal Profession
To appreciate the role of the legal profession in countering the playbook, one must begin by understanding the precise moves being made to undermine its independence. Controlling the legal profession follows a dual strategy: first, capturing the public legal sector to mobilize federal government lawyers against rule-of-law guardrails, and second, disabling effective resistance by the private legal sector—law firms and NGOs—as well as oversight by the professional bar.
On the governmental side, the objective is to degrade professional independence, to transform the Department of Justice from what it has been and should be—a public legal office protecting the Constitution against executive overreach—into what the president wants and may be dangerously close to achieving: a private law firm whose lawyers operate above the law. Because this transformation must appear to follow law, it is necessary to fashion pretexts that use the language of ethical lawyering to hollow out its core.
The Trump Administration has done this through two primary pieces of legal authorization. The first is the Executive Order on “Ending the Weaponization of Federal Government,” issued by the president on his first day in office. Presented as an effort to “correct past misconduct” by the Biden administration, the order in fact weaponizes the claim of “weaponization” to go after insufficiently loyal government lawyers and other perceived opponents. To do so, it inverts reality, premised on the false claim that the Biden administration waged a “systematic campaign against its perceived political opponents,” with its premier example being the legitimate prosecution of January 6 insurrectionists. The order then delegates authority to the Attorney General to “take appropriate action,” which Pam Bondi did on her first day by issuing a General Policy Regarding Zealous Advocacy. Like the Weaponization order, the Bondi memo uses the language of ethical lawyering to undermine the government lawyer’s independent role: promising to terminate US Department of Justice lawyers [MS1] whose “personal political views or judgments” interfere with representing the president, now defined as the DOJ’s exclusive client.
This apparent legal authority has been used to purge independent lawyers and replace them with loyalists. The most well-known case of purging involved Erez Reuveni, a decorated DOJ lawyer who represented the government in the of Kilmar Abrego Garcia, a Salvadorean immigrant who was improperly put on a plane to the El Salvador supermax prison, CECOT, based on “an administrative error.” Because the facts were undisputed, Reuveni conceded in court that Abrego Garcia “should not have been removed.” The next day, Reuveni was himself removedfrom the case and later fired. On Fox News, AG Bondi publicly impugned Reuveni’s conduct falsely equating it to “a defense attorney walking in conceding something in a criminal matter. That would never happen in this country.” Other terminations and resignations of ethical lawyers followed, leading to a mass exodus of government lawyers, with DOJ losing nearly 10% of staff and US Attorney Offices nearly 15% in 2025.
Clearing out lawyers who might resist illegal orders allows for replacement with others unbothered by rule-of-law niceties. This was evident in the appointment of Lindsay Halligan as interim US Attorney for the Eastern District of Virginia after the previous US Attorney, Erik Seibert, resigned rather than pursue legally unsupported indictments against James Comey and Leticia James. The president selected Halligan, an insurance lawyer with no prosecutorial experience, who three days into the job, presented the Comey indictment to a grand jury by herself—following through a few weeks later by indicting James. Both were dropped after a federal judge ruled Halligan’s appointment was illegal, but pressure to undertake political prosecutions persists.
While the administration has used the pretext of ethics to undermine the independence of the DOJ, it has also sought to erode the independence of private bar: by intimidating pro bono lawyers from bringing cases against the government and weakening bar oversight. Intimidation was the point of last year’s executive orders targeting six Big Law firms falsely claimed to be engaged ethical “abuse” posing “risks” to the legal system. The first order against Perkins Coie, for example, stated former lawyer Marc Elias had engaged in “dishonest” conduct by representing Hillary Clinton and George Soros-backed groups in 2016. To “address” that claimed abuse, the orders imposed sanctions: explicitly withdrawing federal funding from clients and implicitly threatening to deny regulatory approvals. The goal was and remains clear: to prevent Big Law firms, which have historically have used their pro bono resources to litigate against government abuse, from doing just that.
Because these orders clearly violate lawyers’ right to free speech, four targeted firms have won permanent injunctions, which are currently on appeal. Nine other firms, led by Paul Weiss, chose a conciliatory route by promising $1 billion in pro bono to Trump. Although the full scope of this pro bono has not been realized (and there are serious questions about whether it even qualifies), evidence so far suggests that the agreements nonetheless have achieved their objective: chilling top law firms from taking pro bono cases in defense of fundamental rights, particularly on immigration issues.
DOJ leaders that know that bar discipline can hold government lawyers accountable for undermining the judicial process. That is why the department last month published a proposed rule to prevent bar associations from disciplining DOJ lawyers for failing to follow the same ethical standards as their peers. This comes after investigations against Halligan and Martin, and the DC Bar’s recommended disbarment of former DOJ lawyer Jeffrey Clark for assisting in the attempt to overturn the 2020 election. For this reason, the DC Bar has drawn the ire of Deputy AG Todd Blanche, who called it “one of the most activist, obnoxious bars,” threatening to take it “out of the picture.”
Toward a Militant Professionalism
What can the legal profession do to fight back? It is clear at this stage that American lawyers, a diverse and divided group, have failed to take sustained and unified action. This failure has been particularly glaring at the elite level, where leadership is key because it sends the signal that those with the most to lose are prepared to do so. The reasons for inaction have included fear of retaliation and concerns that the rules and institutions of professional oversight were not designed with democratic backsliding in mind. Yet this approach risks enabling further erosion. The consistent result of autocratization is bar capture and weaponization of bar discipline against independent lawyers and jurists—whether bars stand up and fight or not. The most effective counterstrategy is therefore to directly call out and challenge government lawyer misconduct while there is still independent regulatory authority to do so, even if this means making more aggressive use of legal doctrine and enforcement tools than before.
One of the most hopeful developments over the past five years has been the emergence and expansion of new democracy organizations across the political spectrum that perform a range of rule-of-law enhancing functions. These include Lawyers Defending American Democracy (LDAD), Democracy Forward, and the right-leaning Society for the Rule of Law, which have built networks and organized public events, like LDAD’s national “Law Day,” while supporting small and solo law offices to provide pro bono services for immigrants and targeted civil servants. These groups have also drafted amicus briefs in major cases, in the law firm and university cases, while filing ethics complaints against government lawyers with the bar.
Some bar associations, in turn, have themselves taken prominent stands. The ABA has repeatedly spoken out against rule-of-law attacks and brought litigation against law firm targeting. The D.C. Bar has issued an important ethics opinion questioning the validity of law firm agreements, and the NYC Bar has authored prominent reports and organized public demonstrations.
In Trump’s second term, there have already been a dozen complaints against DOJ lawyers, including those at the very top responsible for judicial noncompliance. Now former Attorney General Pam Bondi was charged with terminating Reuveni after he refused to lie in the Ábrego Garcia case. Another complaint was brought against then-Deputy AG Emil Bove for instructing Reuveni and other lawyers involved in the controversial deportation of Venezuelans to CECOT to tell the court “f-you.” The result of ethics complaints has been mixed. On one hand, the three most important bar associations in the US—New York, California, and DC—have disbarred or recommended disbarment of the lawyer architects of the 2020 election campaign. But more recent grievances against current administration lawyers have proven unsuccessful so far. As a result, there is debate over the efficacy of bar efforts. While some scholars warn of a backlash against “barfare,” others argue that action against government lawyers is necessary though by no means sufficient to limit rule-of-law attacks given the weakness of lawyer oversight in other parts of the system, as the failure of courts to sanction DOJ lawyers underscores.
Even when complaints do not have immediate results, they can have a positive effect by showing why government lawyers should be given less deference and deterring extreme misconduct. This is particularly important on the frontlines of Trump’s immigration enforcement policy, where the volume of cases has stressed department resources, requiring DOJ to detail lawyers from other offices. The Department of Justice has made clear its disregard for judicial orders, cited for over 200 instances of noncompliance in Minneapolis alone during January’s Operation Metro Surge. These are not isolated instances, but rather part of a systematic pattern producing growing frustration among judges nationwide—and mounting efforts to sanction DOJ lawyers for legal defiance. While in Minneapolis this resulted in civil contempt against JAG lawyer Matthew Isihara for refusal to return identification documents of an immigrant ordered released from detention, courts have been reluctant to do more at this point.
Although law schools were criticized for failing to speak with a unified voice against actions, like law firm targeting and ICE raids, that violate basic due process and free speech, there have been important counterexamples. Last year, 79 law school deans signed an open letter opposed to law firm targeting, and the American Association of Law School issued a strong condemnation of those same attacks as contrary to “the rule of law.” Some faculties have sent similar letters to students, while schools including NYU, Yale, Stanford, Fordham have launched rule-of-law clinics to support litigation and advocacy on cases ranging from deportation defense to amicus support in the law firm cases to voter protection. Finally, students have taken leadership roles, joining across universities to mobilize for academic freedom and share information to empower students to boycott firms that “caved.”
Although the past year has brought a volume of change previously thought impossible in America, there is still time for a democratic U-turn, reversing course to start rebuilding damage to democratic institutions, trust, and norms. What it will take to do this at the level of detailed strategy is a difficult question. But one may begin from principles derived from study of effective resistance elsewhere. This starts with recognizing that it is self-defeating to expect a return to normal. America has already experienced constitutional revolution. And recent history shows that leaders who perform this type of revolution do not simply go back to regular process when they are done; rather, they seek to tilt the playing field to cement permanent power.
Preventing this requires reverse engineering: to anticipate what comes next to effectively mobilize legal and political resistance. This requires short-term decisions to put aside left-right ideological conflict in favor of cross-party coalitions that defend democratic institutions against a common adversary. And it builds on state and local action to generate momentum for democratic change. Countermobilization in Minneapolis against ICE raids was a model: there, people across the political spectrum took to the street to demand the humanity of immigrant neighbors while solo and small-firm lawyers working pro bono went to court to file over 1000 habeas petitions to make the government account for its abuse.
While there should not there be any illusion that lawyers can on their own prevent backsliding, lawyers do have a vital role to play standing up for professional independence and inculcating respect for the rule of law at this critical moment. Precisely because lawyers have been at the vanguard of backsliding, they must play a leading role in changing its course. This requires effective coordination with local movements to build pressure from within alongside coalition-building with international groups to bring support from the outside while simultaneously strengthening bars in other countries facing backsliding by sharing lessons of what is happening in America.
Democracies survive backsliding when the people do lose hope that change is possible. This requires that pro-democracy leaders effectively make the case that electoral mandates are not blank checks to rewrite rules in favor of executive power. And it requires lawyers to defend the idea that law means something more than what the executive claims it to be—that it is, in the end, by the people and for the people.
Suggested citation: Scott Cummings, Symposium on Militant Constitutionalism Part IV: Militant Professionalism: How Lawyers Can Counter the Autocratic Legal Playbook, Int’l J. Const. L. Blog, June 13, 2026, at https://www.iconnectblog.com/symposium-on-militant-constitutionalism-part-iv-militant-professionalism-how-lawyers-can-counter-the-autocratic-legal-playbook/