Think twice? Bar group tells members it’s OK to criticize, but don’t dare call Trump conviction ‘partisan’

This week, I received an email from a member of the Connecticut State Bar Association (CBA) stating that President Maggie Castinado, President-elect James T. (Tim) Shearin, and Vice President Emily A. Gianquinto had posted a message warning against criticizing the prosecution of former President Donald Trump. For lawyers who view cases like the Manhattan case as blatant political prosecutions, the message from the bar association’s leadership is frightening. While the letter does not explicitly state that such criticism would be considered unethical conduct, it does state that criticism “should not be discussed in public” and urges members to speak out publicly to support the integrity of these legal proceedings.

The statement begins by warning members that “words matter,” but leaves open how that matters to Bar members. The statement simply says that some comments will be considered “treasonous.”[ing] “The line between criticism and dangerous rhetoric”

According to the CBA, it is now considered reckless and unprofessional to make analogies to illustrate cases or to question the integrity of the legal system or judges in such cases.

For example, I think it goes too far in criticizing Judge Juan Marchan for refusing to recuse himself from the case. Many lawyers believe that he should have recused himself (and avoided any hint of a conflict of interest) given his political contributions to President Biden and his daughter’s prominent role as a Democratic fundraiser and activist. I am more critical of his ruling, which I consider to be biased and wrong.

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But the CBA has warned lawyers that such comments could go too far: while the letter assures members they are free to criticise, it warns that attacking judges’ ethics and the motives behind these cases is dangerous and could lead to violence.

I have previously condemned heated rhetoric and am concerned that such angry rhetoric can incite violence. After the verdict, I quickly called on people to trust our legal system rather than succumb to anger. I believe the verdict in New York can ultimately be overturned. I also said that I blame the judge and prosecutors, not the jury, for a baseless and unfair trial.

Of course, concerns about angry rhetoric run the gamut from all sides of our political spectrum. While it’s rarely criticized in the media, we’ve seen an escalation of reckless rhetoric from the left. Georgetown University law professor Josh Chaffetz, for example, has asserted that “if the mob is right, then some (though not all!) of their more aggressive tactics are justified.”

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What concerns me is not a plea for lawyers to be careful that their words do not encourage such “aggressive tactics.” The issue is the suggestion that the actions of lawyers who condemn what many see as a dual justice system and the politicization of the justice system are in any way unprofessional.

Judge Juan Marchan presided over the hush money trial of former President Donald Trump in New York City. Trump was found guilty on all 34 charges last month and his sentencing is scheduled for July 11. (AP Photo)

I, like many others, believe that the Manhattan case is a clear example of the weaponization of the justice system and should be condemned by all lawyers. In my view, it is a return to the type of political prosecution that was once common in this country.

Lawyers who see these prosecutions as political are speaking out to defend what they believe to be the nature of blind justice in America. What is “reckless” to the CBA is justice to others. Notably, CBA officials have not written any letters attacking figures like Bill Barr or condemning allegations that the Department of Justice rigged the justice system during the Trump administration.

Similarly, the letter focuses on criticism of Trump’s prosecution and not on the ongoing attacks on conservative judges like Supreme Court Justice Samuel Alito. It never warned about people calling conservative judges profane language, attacking their religion, or calling them “partisan hacks” and “insurrectionist sympathizers.” Liberal activists have called for blocking conservative judges “by any means necessary.”

In Connecticut, Democratic Senator Richard Blumenthal warned conservative justices that they would face “dramatic change” if they didn’t get it right. But the legal profession doesn’t seem worried. Similarly, Senate Majority Leader Chuck Schumer of New York said before the Supreme Court: “I want to say to you, [Justice Neil] Mr. Gorsuch, I want to say to you: [Justice Brett] Mr. Kavanaugh, you’ve created a stir, and you’ll pay the price.”

Senate Majority Leader Chuck Schumer, D-New York (AP Photo/J. Scott Applewhite)

The letter goes on to suggest that lawyers should speak out publicly in support of trials like the Manhattan one, a view that ignores deep suspicions about the motives and methods used in New York to target an unpopular figure in this city. The CBA’s top officials are calling on lawyers to publicly take a stand to defend the fairness of these prosecutions that many lawyers and citizens oppose. Imagine the reaction if the Idaho State Bar Association called on lawyers to oppose these cases and declared that it would be reckless or unprofessional to defend these cases.

I would expect that in the very liberal CBA, this letter would be largely unnecessary – indeed, it would be very much supported – but I think CBA officials should have been more mindful of the need to respect the diversity of opinion on these cases and to avoid statements that could have a chilling effect on the exercise of free speech.

Ironically, the letter only strengthened the view of a legal system that maintains political orthodoxy and agenda. These officials declare that it is now unprofessional and reckless for lawyers to use historical comparisons as a show of justice or to question the motives and ethics behind these cases. They warn lawyers not to “instill distrust in the public’s courts where they should not be.” Yet many believe there is a dire threat to our legal system and that distrust is warranted given prosecutions like the Manhattan one.

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Donald Trump arrives at Trump Tower in New York City after being convicted on May 30, 2024 of 34 counts of first-degree falsifying business records. (Felipe Ramares for Fox News Digital)

As I argue in my new book, Essential Rights: Free Speech in an Age of Rage, critics of political prosecutions under the Crown and Adams administrations often faced threats of disbarment and other legal action for questioning the integrity or motives of judges and prosecutors. It is not enough to say, “That was a long time ago, and that’s not the case now.” Importantly, the Bar also has a duty to protect the core rights that define our legal system, particularly the right to free speech.

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Again, these officials are not threatening action against those who criticize these cases, but as the emails in my inbox show, many who are skeptical of these prosecutions are taking it as a warning.

Our legal system does not need to fear criticism. In fact, freedom of speech strengthens our system by highlighting divisions and encouraging dialogue. The most serious threat to that system is orthodoxy and intolerance of speech.

The full CBA message is below:

Dear Members,

Words matter, and reckless words attacking the integrity of our justice system even more so.

Following 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,” that our justice system was “corrupt and dishonest,” that the judge was “corrupt” and “highly unethical,” and that the jury was “partisan” and “rigged.” Some have also claimed that the trial was “America’s first Communist show trial,” a reference to the historic purge of high-ranking Communist officials to eliminate political threats.

These allegations are baseless and reckless. Such statements have the potential to incite violence against those who serve the public as law enforcement officials. In fact, such statements have led to threats against those fulfilling their civic duty as jurors, as evidenced by social media posts attempting to identify the names and addresses of anonymous jurors, and even calls in some cases for jurors to be shot or hung. More importantly, such statements undermine the very integrity of the third branch of government and sow public distrust in a court that should not be involved.

To be clear, free speech includes criticism. Commenting on charging decisions, prosecutors’ legal theories, judges’ rulings, or the rulings themselves is not, and should not be, prohibited. But attention-grabbing, unsubstantiated allegations by public officials making it into headlines cross the line from criticism to dangerous rhetoric. There is no place for such statements in public debate.

It is our responsibility as lawyers to protect our courts and judges. As individuals and as an association, we cannot allow the tense political climate we live in to dismantle the third branch of government. To remain silent would be to be complicit in that movement.

Respect for our justice system is essential to our democracy, and the CBA condemns baseless attacks on the integrity of our justice system.

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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 & Schuster, 2024).