I readily admit that we lawyers, as a group, are easy marks. Lawyer jokes abound and, indeed, we can be picky, obsessive, egotistical know-it-alls. So go ahead, tell your favorite lawyer joke and have a laugh on us. We deserve it.
But if you want to see things get truly crazy, watch what happens without lawyers. Because one of the most important services that lawyers provide is to convince people not to do stupid things, or at least not to do them publicly. These past few weeks, President Donald Trump has shown us what happens without lawyers — or when powerful people ignore legal or other expert advice and just do and say whatever the hell they want.
Trump has legions of lawyers and other advisers, as any president would (though a disconcertingly large portion of Trump’s braintrust — Michael Cohen, Paul Manafort, Michael Flynn, Roger Stone — are now convicted federal felons). But Trump is what lawyers would call, politely, a “difficult client” — or what normal people would call a “colossal pain in the ass.” He values the advice and expertise of exactly nobody not named Donald J. Trump.
And why should he listen to anybody else, really? By self-proclamation, Trump is a “very stable genius,” “so great looking and smart,” possessed of “one of the great memories of all time,” with a “natural ability” for science and medicine, with more knowledge than anybody about topics ranging from ISIS to television ratings to taxes to drones. The “chosen one,” indeed.
The very concepts of “advice” and “expertise” are foreign to this Administration. The only true measuring stick is sycophancy; kiss the ring and you’ll be rewarded. Trump is surrounded by yes-men who know and understand his need for blind praise: Vice President Mike Pence (who seems incapable of starting a sentence with anything but “Congratulations, Mr. President”), Attorney General and See-No-Evil Fixer William Barr, and the Crown Prince of Entitled Idiocy, Jared Kushner, to name a few. But those who have stood up and done their job, for better or worse, have suffered the consequences. Just ask General John Kelly, Ambassador Marie Yovanovitch, General James Mattis, former Secretary of State Rex Tillerson, Lt. Col. Alex Vindman, and legions of others.
Trump is innately reluctant to heed advice, or even to receive it. That’s why over the past few weeks, as the country faces a public health and economic crisis of unimaginable consequence, he has repeatedly stumbled over major legal and policy decisions, in full public view. We’ve seen this clumsy dance, time and again. Step one: make a vague proclamation or threat about invoking the potent legal powers that the president holds in times of emergency. Step two: tweet about how he’s strongly considering taking some precipitous action that could trigger a constitutional crisis (just what we need, in the midst of all this). Step three: publicly equivocate, begin walkback. Step four: announce some incoherent, face-saving half-measure.
Trump danced this tangled tango with the Defense Production Act, which gives the president staggering power to order private companies to manufacture, expedite, and allocate essential goods. He first claimed the Act was “in full force,” but he didn’t have to use it. He then claimed he was using the Act — “invoke P,” he inexplicably tweeted — without actually doing anything meaningful or enforceable with it. (This brought to mind the scene from “The Office” where Michael Scott tries to solve his financial woes by ceremonially shouting “I declare bankruptcyyyyyyyy!” before it can be explained to him that it doesn’t quite work that way). Trump eventually did issue an actual order to General Motors to produce ventilators — but without specifying how many, on what timetable, and at what price, effectively rendering his own order mostly ceremonial.
Trump repeated the process when he openly contemplated a Mad Max-style quarantine on certain states including New York and New Jersey. (Disclosure: I live in Jersey. This would not have gone well. How exactly was this supposed to be enforced? With the National Guard stationed at the George Washington Bridge? Not gonna happen.) After Trump daydreamed publicly about locking down the Northeastern states, New York Governor Andrew Cuomo demolished the silly notion and threatened to sue. And Trump then backed almost all the way down and tweeted a meek “travel advisory” that was fully redundant of what the states were already doing anyway.
In most instances, Trump stumbles to a harmless enough result — sorta invokes the Defense Production Act (but not really), issues a travel advisory rather than an actual lockdown. But the process itself is harmful because it undermines public confidence. Anyone watching this disjointed process play out in the public eye would rightly ask: what the hell is going on here, how are these decisions being made, and just how competent is the top guy who makes them?
So how would lawyers — or Trump heeding the advice of lawyers — have made this any better? For one, any competent lawyer would’ve given Trump this basic guidance: we can talk about this stuff, but let’s use our indoor voices. There’s nothing wrong with having a deliberative process. In fact, any responsible decisionmaker should do just that. But do it behind closed doors, not out in the open where the entire world can see it all unfold (especially when that process is an illogical, legally dubious mess).
And, as an added bonus, Trump might just arrive at better decisions if he could consider the possibility that somebody might know better than he does. Any sentient lawyer would have told Trump that a federally-mandated lockdown of the Northeast was not gonna fly, legally or otherwise. And a strong advisor might urge Trump to actually use the Defense Production Act to spur production and ensure optimal distribution of crucial goods, given the life-or-death stakes, rather than just pawing at the Act like a cat at a shiny toy.
Trump is failing miserably to lead, just when the country needs him most. I don’t pretend that effective lawyering could somehow change Trump completely, turn him into an empathetic visionary with sound judgment. But a decent lawyer, if heeded, could sand down some of the more jagged edges of indecision and impulsivity, and might even lead Trump to better outcomes. Make all the lawyer jokes you want, but a good one could be a godsend right now.
Stay healthy and safe,