Aggressive Defense Of The Rule Of Law
Trump and his henchmen have declared war on the rule of law. Defending it will require aggressive responses. It’s time for heavy use of Rule 11
Here are the relevant provisions of Rule 11:
(b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:
(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;
(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.
(c) Sanctions.
snip
(4) Nature of a Sanction. A sanction imposed under this rule must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated. The sanction may include nonmonetary directives; an order to pay a penalty into court; or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of part or all of the reasonable attorney’s fees and other expenses directly resulting from the violation. …
Every pleading from the government should be closely examined. If there are reasonable grounds, the affected parties should immediately demand preservation of records proving compliance with Rule 11(b).
Example: Illinois Sanctuary City laws
DoJ sued Illinois, Cook County, and Chicago over our sanctuary city laws and the policies adopted pursuant to them. (Full disclosure: I am a Chicagoan.) The suit claims that the laws were intended to and do interfere with the ability of the feds to enforce immigration laws. There is a lot of bluster about this, but there isn’t a single specific example of active interference with the feds. There are no specific allegations of damage done by enactment or compliance with the laws and policies.
The complaint lays out the provisions of Chicago’s policy in ¶¶ 41-50. Then:
51. Upon information and belief, Chicago law enforcement officials have been chilled by these prohibitions.
52. Upon information and belief, Chicago law enforcement officials are also confused by the restrictions on them and thus do not provide even the permissible cooperation out of fear of punishment.
The defendants should demand preservation of all records showing that the lawyers who filed this suit had cause to believe that there is evidentiary support for these allegations, or that it is likely that discovery would uncover evidentiary support.
But, even if there is such chilling or confusion, it doesn’t prove the case alleged by the feds. For example, it is likely the case that the feds can seek clarification of the rules from the superior officers of the duty people. There is no allegation that any actual federal agent has been unable to obtain any result permitted by the law. That information is obviously available to the government’s lawyers if it existed.
It appears that Chicago has a powerful defense against these claims under the anti-commandeering doctrine. Here’s a report from the Congressional Research Service. It says that there are six district court opinions all holding in Chicago’s favor. I haven’t checked to see if there is later precedent (but this indicates there isn’t any ). If that’s right, then a demand should be made for preservation of records regarding how and why this suit was filed. Was there an improper purpose, like a political purpose?
The demand should include any and all records at the Department of Justice in D.C., as well as documents in the possession or under the control of the US Attorney who filed the suit and all of the lawyers who signed the complaint. The demand should also cover all documents justifying a claim that anti-commandeering case law should be ignored or overturned, and documents related to that determination.
This demand will set up a possible counterclaim for abuse of process as well as sanctions under Rule 11.
Example: Birthright Citizenship cases
Trump’s executive order on birthright citizenship is at stake in several pending cases. Judge Sorokin of the District of Massachusetts issued a preliminary injunction against implementation of the EO in a 31 page opinion. Here’s footnote 8:
In fact, the defendants’ discussion of Texas in their papers verges on misleading. The language upon which they most heavily rely appears in a footnote quoted in their opposition memorandum and referenced during the motion hearing. Contrary to the defendants’ characterization, that footnote is not a “holding,” and it does not “foreclose[]” the State plaintiffs’ standing in this case. Id. Rather, it acknowledges that “States sometimes have standing to sue . . . an executive agency or officer,” and though it warns that “standing can become more attenuated” when based on “indirect effects” of federal action, it stops short of saying such effects could never satisfy Article III. Id. This case, in any event, concerns direct effects. Cites omitted.
That doesn’t verge on misleading, it’s misleading, and required the parties and the Courts to expend time and energy unraveling it.
The Judge also calls out the government’s argument that birthright citizenship requires “mutual consent between person and polity”. The child, of course, can’t consent so that falls to the parents. The government says that if the parents are here illegally, the polity, the US, did not consent to citizenship.
Judge Sorokin rejects that argument, saying[ that birthright citizenship is granted to the child. The parents are not involved. Second, all of the parents of enslaved people were here under duress, not by consent. Therefore the argument means the 14th Amendment doesn’t apply to children of slaves. The Court says this argument “verges on frivolous.” I’d say it crosses the frivolous line into stupid.
Both the state and private plaintiffs should move for sanctions under Rule 11. On its own, the Court should require all the lawyers who signed the pleading to attend three hours of ethics training and certify their attendance within 60 days.
One more example.
Out-of-state lawyers are usually required to apply for and receive permission to appear pro hac vice. Most right-wing litigation groups, like Americans Defending Freedom, use out-of-state lawyers. If sanctions are appropriate under Rule 11, there is nothing to prevent the court from imposing as a sanction termination of pro hac admission. Admission pro hac in future cases will set up the possibility of moving to deny or revoke admission on the grounds that the lawyer has been revoked in one court. That will certainly deter garbage filings.
Conclusion
I know courts are reluctant to award sanctions. But this administration is abusing the courts, just as Trump has done all his life. If courts refuse to protect themselves, and refuse to fully protect the people damaged by illegal actions, their already trashed reputation will sink into negative territory.
I also know that lawyers don’t like to ask for sanctions. It’s an unwritten rule tied to notions of collegiality. I know it’s particularly difficult with government lawyers, because of the risk they’ll appear in another case where your clients might be hurt.
But. Adhering to unwritten rules has led to this: Trump walks free, free to abuse the courts, free to wreak vengeance, free to wreck what it took centuries to build. Fixing this is more important than fake gentility.
“Fixing this is more important than fake gentility”. This! Thank you Ed.
There’s a difference between smart, aggressive, within the law moves and incoherent yelling.
There’s a difference between holding to a boundary – consistently, every time – and irrational behavior.
Being called names because you are calmly and legally acting a way somebody doesn’t like is yucky but not an indication that *you* are a non-collegial jerk.
So what are people afraid of?
I suspect the massive amounts of energy it takes to calmly, consistently, and yes sometimes aggressively defend a boundary (even one that seems intellectually obvious, like “no I won’t break the law”) in the face of emotional blackmail, social norms pressure, and, at this point, credible physical threats. Or maybe jumping to the “how do we go on offense?” mindset because *just* defending the boundary is too much of a mind F (how is not breaking the law a crazy boundary? why is this being normalized??).
I’d like to pretend that if I were a lawyer I’d be following Ed’s plan all day every day. As it is, I can’t judge – I know the energy load, even in the absence of credible physical threats.
At this point we need the aggressive defense plus counseling on handling DARVO for the entire freaking country. IANAL, so maybe my next move is funding counseling for lawyers who sincerely want to make those aggressive defense moves but need support to keep it up, and to clearly articulate what’s going on. Oh wait – maybe that support should go to journalists.
Self care, support, pick a positive action, rinse & repeat!
Your point about the energy it takes to do this is a good insight. We don’t want the attention of the lead lawyers on a case diverted from defending or pushing the case itself.
I think every state AG should appoint a young lawyer with fire in the belly to do this, someone not otherwise connected with the case. The senior lawyer on the case can make sure the younger person doesn’t overstep. Private groups can do something similar.
If you have a minute, can you edit to correct typos? e.g. pro has vice, Exanpoe:
[FYI – These two typos have been corrected. Please refresh your page. / ~Rayne]
Thank you, Ed. When the ABA president issued his clarion statement (was it just last week?) calling for lawyers to rally around the law and their ethical standards, few outside the profession likely understood the significance of his speaking out. As with US senators, “unwritten rules” of collegiality can become straitjackets for lawyers, especially when the time comes to put law and ethics first.
And lawyers become judges, where those rules DO get written in regard to ethics (except for SCOTUS, of course). But old habits die hard, as perhaps they should. It has become a truism in the wake of the 2024 election to say that “The courts failed us,” because Trump finagled the ultimate Get Out of Jail Free card from his handpicked SCOTUS court.
It would be truer to say that they failed us when it became possible for a foreign dipshit to buy himself an election, and thus a federal government to use as a plaything/piggybank. “The courts” include everyone who contributes to the justice system, however, and that includes us. Not a lawyer? Call your representative who (likely) is.
Ed,
Great topic. IANAL. Your quote: “I know courts are reluctant to award sanctions. But this administration is abusing the courts, just as Trump has done all his life. If courts refuse to protect themselves, and refuse to fully protect the people damaged by illegal actions, their already trashed reputation will sink into negative territory.”
Trump has personally brought over 4k lawsuits in his life prior to this election. Metro Bus Billboards where i live advertise for lawyers say “1B$ for clients”. The question is quantity or quality. Trumps, answer has always been about quantity. DOJ represents the office of executive but Trump has appointed sycophant’s to DOJ leadership that will only follow his instructions, not the law as you clearly documented above. All of Trump ‘s “quantity” legal history is beyond the scope of the court. But just like star fish in the sand, you pick one up, walk to the water and throw that one lucky starfish as far as you can. It only takes one lawyer or one judge to raise rule 11 against DOJ’s 2025 onslaught into the rule of law for the tide to change. Peace, We are in this together.
At what point does the Federal Programs Branch become saturated with cases? Has to be already with 75+ cases. You have a lot of other Civil division DOJ staff you can throw at it, but their expertise in these cases starts to slip. Likewise most AUSA are going to take a while to get up to speed as well.
And attorneys in the civil division are getting same threatening emails from “HR”. They also read the papers on the DAG.
Sorry to be OT but have you seen IL Gov. Pritzker’s troll about renaming Lake Michigan to Lake Illinois? So good!
While we are in a giddy whirl of re-naming, let’s re-name Trump Tower. How about The Edifice Complex? (Hat tip to Deyan Sudjic.)
As to Sect. 11, I seem to recall a lawyer on Twitter, during the first Trump administration, proposing exactly that, and laying out how it could be applied. Alas, I forget which of the many cases she was commenting on.
yes forgot TURD TOWER in neon lights as an award from prit$ker award paid off comittee!*!*!
dwntwn nascar fan wil lick it a lot…blrrggggl!
Sorry to say, because you always delight, but that troll is not clever by half or funny, Matt.
What was approaching sharp and funny was talk of annexing green bay, but you’d have to have cte to find it truly sharp rather than derivative and underperforming, like chi’s bloated sports money game.
TBH, happy to have Pritzker helming our state executive chair and calmly and soundly partnering with populace, business, legit law, social service orgs, humanitarian groups, Dick and Tammy, citizens and the functional state apparatus(no fking thx Republicons!).
What is actually funny is that Pritzker is just Blago in a fat suit with a ethics armor core upgrade cuz he was born into the money rather than married. Shady upstanding scion. Knows he is not an entertainer, just aiming to be a respectable hard worker who tries to get it right and knows we need him on top game. Ate too much free govt cheez obv tho lol!
What else would be funny as funny money? Renaming all the stuff bearing Pritzker name and changing it to more accurate “Govt Contract Scoring 2Rich Folx” pavillion, predatory profession med school, building award for not poor ppl, etc.
JB is a capitalist plutocrat bum. Its good to see him sweat from his class brethren(billionaire$) and their amped up version of schemes that made his fam$. He deserves a golden swirly after he assist$ democracy limping to the next ultramarathon check point$.
What is not funny is all you folks who have to suffer under state shit leaders who make my turd shine, like OH, TN, AR and florid Ron DeMax Santorum DeSantis. Peace to PA plz!
Sorry but come on feel the illinoise!
I was commenting on Pritzker’s troll of Trump, not on him or his policies which I know next to nothing about.
Annex Green Bay? Did Pritzker have that in his “announcement”? Doesn’t he know that the NFL has said there will never be a professional football team in Chicago?
oh yeah, hip folks and sharp Drexciya fans refer or know its the Michigocean!
Double clever college buddy introduced me to that name & my wife. Debt of love and gratitude to him.
and thanks Ed, as always an easy to read post on complex thorny topics and their interplay and effect upon our lives.
Sanctioning illegal and corrupt behavior is always collegial, especially within the absurdly privileged ranks of the legal and federal systems.
David Coale wrote in Salon Saturday that judges buried under multiple court orders challenging a flood of legally dubious executive actions could take a tactic usually reserved for extreme time wasters.
Judges, Coale argues, can cut through the time-wasting by ruling the filer is a “vexatious litigant” — and dismissing their claims out of hand.
The same could be done to the president’s administration, Coale claimed.
https://www.salon.com/2025/02/15/is-it-time-for-americas-to-go-on-strike/
I’m surprised they didn’t do that to Donnie years ago. more than 3K suits would seem to prove that he really is.
Great post, Ed, thanks!
Another vexing legal question from this non-lawyer’s point of view is this… Aren’t there any contractual requirements for disbursed federal funds? If a person is hired to work on a grant, isn’t the government obligated to pay according to the terms of the grant? It seems to me that contract law should be relevant here, but I don’t hear any discussion of this.
Maybe I just don’t understand how these things actually work vs. how I think they work – it would not be the first time as Mary, bmaz, et al. used to point out to me back in the Bush era ; )
Yes, there are innumerable contracts, but they have to be enforced. If the justice system is owned by Trump, how will such contracts be enforced? By suit, but Trump is the master of delay and appeal. Our government will be long dead before all that can happen.
I join the commenters above with thanks for your great post, Ed.
However, I’m at a loss with the question what options are left when the current administration just implements its illegal actions. My example: Ellen Weintraub.
I feel sorry that I can’t maintain my previous comment on her handling with the one-liner she got from Trump about her removal from the FEC (https://www.emptywheel.net/2025/02/10/rule-of-law-dont-obey-in-advance-but-also-dont-give-up-in-advance/#comment-1086932). I haven’t read anything since then, so I checked with the FEC websites: her position is now “vacant.”
She had no reason to got to court because Trump’s letter couldn’t be legally effective because it didn’t follow the procedure required. Yet she has been removed from the official website on Feb. 7, 2025.
Archiv.org’s Wayback Machine shows 3 captures of the respective FEC site for Feb. 7: the one from 09:01:22 still listing Weintraub as chair, the one from 16:36:28 not.
Ed, as a former Chicagoan and longtime observer of their police department, I think the DOJ is probably on safe ground claiming that ” Chicago law enforcement officials have been chilled by these prohibitions” and that “Chicago law enforcement officials are also confused by the restrictions on them and thus do not provide even the permissible cooperation out of fear of punishment.”
It is *very* easy to imagine MAGA officers — of which there are no doubt an abundance on the Chicago PD — chafing at JDP in Springfield as well as Those People at City Hall, who would be willing to say just about anything Pam Bondi et al. want to hear.
Yes, there may not have been a single specific example in the lawsuit about this, but I’m sure the DOJ will say that this was done so as to avoid placing any of these fine upstanding and woke-oppressed police officers in danger of retaliation.
See “McDonald, Laquan, the murder of” by CPD officer Jason Van Dyke. Making a false claim to Bondi’s DOJ would simply be the latest product of the culture of authoritarianism and racism in the Chicago PD.