Miguel Rivera on law, politics, and Trump 2.0
Plus, a conclusion to an interesting religious freedom case
Before we get to my conversation with my friend and colleague Miguel Rivera, I wanted to highlight the end of a fascinating religious freedom case I’ve been following out of New York.
Officials at Yeshiva University had refused to recognize an LGBTQ student club, citing the university’s religiously-informed beliefs about gender and sexuality. More than two years ago the U.S. Supreme Court issued a ruling that seemed to favor the club, but in reality was more far more limited. I described that decision for Christianity Today in September 2022:
In Yeshiva, the 5–4 majority—including two conservatives, John Roberts and Brett Kavanaugh—held that the university had not yet exhausted its options in seeking to overturn a state trial court’s decision. Importantly, the justices reached no conclusion on the merits of the case, or what the outcome would be if they were evaluating the constitutional arguments in play.
Clues to the future of this case can be found in the decision’s dissenting opinion, from Samuel Alito and three other justices. “Does the First Amendment,” Alito begins, “permit a State to force a Jewish school to instruct its students in accordance with an interpretation of Torah that the school, after careful study, has concluded is incorrect? The answer to that question is surely ‘no.’”
Alito goes on to say there are enough justices to grant the case full review (a case needs just four), and that Yeshiva “would likely win if its case came before us.”
I then wrote:
There are many reasons to believe that Alito is right in claiming that, should this case reach the Supreme Court for full review, a majority of the justices would side with Yeshiva University.
However, late last week Yeshiva University agreed to end litigation and formally recognize the student organization, ending the years-long legal drama. According to the Associated Press article,
The university said Thursday in a statement that it reached an agreement with the students to end the litigation and will officially recognize the club, which will be called Hareni and “will operate in accordance with the approved guidelines of Yeshiva University’s senior rabbis.”
“The club will be run like other clubs on campus, all in the spirit of a collaborative and mutually supportive campus culture,” the university said.
I wrote at the time that this case could one day be a vehicle for the Court to review some of its more controversial First Amendment decisions, including the questionable CLS v. Martinez case. In the aftermath of the university’s decision here, though, we’ll have to wait a while longer.
Can President Trump really punish lawyers and law firms for their legal work?
It can be overwhelming these days trying to stay abreast of all the news emanating from the White House. It can be even more complicated trying to making sense of what certain executive orders and memos actually mean, in practice. This is certainly the case when these orders and memos are speaking about technical things, like, say, law and the legal profession.
So with the recent news of executive orders pertaining to lawyers and law firms involved in lawsuits against the government, I turned to my colleague and friend from John Brown University, Miguel Rivera. Not only does Miguel follow these things more closely than I do—I think he actually enjoys following politics, if you can believe it—but he also brings a wealth of practical experience to conversations about law and the legal profession, having served in both public and private practice over a decades-long career.1
I hope you enjoy our exchange, and I’d love to hear what you think of his diagnoses. With that, here’s Miguel Rivera.
Daniel Bennett: There’s been a lot of political commentary about the early days of Trump 2.0. Speaking as a lawyer, what are your broad impressions so far of the first couple of months of this administration?
Miguel Rivera: You know, it has been a very interesting couple of months. When we become lawyers, we take an oath. An oath not dissimilar from the oath of office of the president – to defend the Constitution. These last two months have been anything but defending the Constitution. Illegal and unconstitutional executive orders have been the general approach to almost everything.
It is one thing to bring in needed reforms, it is quite another to tear down the systems and agencies that a modern age has come to depend upon. It’s one thing to make a correction in foreign policy, with NATO, Russia, China, Mexico, Canada, etc. It’s another thing to demolish relationships for the sake of doing it. To show power.
Tear down the courts and the legal system, and the fabric of our system of justice, the law, checks and balances, and the rule of and respect for the law vanish. What do you have then?
For example, Trump’s tariff war with nearly everyone seems to emanate from a fundamental misunderstanding of a modern global marketplace and in the end, who really pays for increases in the price of goods? The American consumer, not China.
In a word, I would describe the last two months as “chaos.” This chaos spills over into how the White House treats the Department of Justice, the courts, the legal system as a whole, and now even law firms and lawyers. Lawyers are a lot of things, both good and bad, but we form the very framework of democracy and the rule of law. Tear down the courts and the legal system, and the fabric of our system of justice, the law, checks and balances, and the rule of and respect for the law vanish. What do you have then? Autocracy? Oligarchy? Certainly not a constitutional republic, democracy, and the rule of law.
DB: This back-and-forth was inspired by a White House memo seemingly targeting law firms who bring cases against the government with financial and professional sanctions. What do you make of this memo, as a lawyer?
MR: What I find most interesting here is how the President frames the notion of “misconduct” and “unethical” behavior. Anything that holds him accountable to the law, that challenges his authority, that formally disagrees with his position is defined as attorney misconduct and unethical behavior. We have checks within the legal system that work very well. Bar associations, state supreme courts, federal courts, the United States Supreme Court, rules of ethics, and the law do a good (if imperfect) job of keeping attorneys accountable. We are one of the only professions with these checks and punishments.
Law firms who bring lawsuits to enforce the law and the Constitution are a necessary and fundamental part of our checks and balances. Without us, who checks the powers of government? Who limits the overreach of government? Courts do not act sua sponte to bring their own cases and controversies to themselves and make rulings. Who brings those cases and controversies to the courts and requests rulings? Lawyers and law firms.
I was shocked to see some of the world’s largest law firms capitulating to the president to the tune of millions of dollars. Shakespeare got it right when in Henry VI he wrote that to start a revolution, to seize power, “The first thing we do is, let’s kill all the lawyers.” The easiest and quickest way to take over a government and to secure power in one person is to “kill” those whose job it is to challenge naked aggression, unchecked power, and to defend and support the rule of law. In other words, kill all the lawyers.
When you combine the president’s attack on the news media [and] the free press with his attack on lawyers and law firms, it is a sure recipe for consolidating power. When set beside the dismantling of the structures of government, i.e., the demolishing of governmental institutions, agencies, departments, and the neutering of the Department of Justice — well, it makes Shakespeare a prophet, doesn’t it?
Where is the due process in all this? Lawyers and law firms are unethical and abusive because the president says so? Where are the legal findings, the jurisprudence, the months of investigations, and the enforcement actions to prove this? A couple of limp examples are sufficient to justify an sweeping executive order? No, this is not constitutional justice, this is not the rule of law. This is autocracy.
DB: I want to return to your “autocracy” comment in a moment. Aside from the legal and constitutional concerns you raised, how can these orders affect the public’s perception of the rule of law and the legal profession?
MR: The rule of law is an ethereal thing. The Supreme Court has no enforcement authority or mechanism. It is our shared belief in the system, in our institutions, and in the apolitical nature of the rule of law, that binds us as a society and that allows for enforcement of court decisions — even decisions that we disagree with. When that is gone, where are we?
When you remove those who are trained to stand in the halls of justice and shout that the emperor has no clothes, you silence an important voice and a powerful check on unfettered and unchallenged power.
These executive orders, the president’s rhetoric, and his dismantling of our institutions communicates to the public that these things are not important, that government is nothing more than a deep state, a corrupt and political cabal. This erodes or completely destroys our faith in government, in institutions, in the Constitution, in the rule of law. This creates a vacuum that history teaches us is usually filled not with a new democracy, but with authoritarian power and the rule of one.
As for how this impacts lawyers, I am less concerned about that than I am about the impact on the citizen and her perception of government. But that said, when we kill the lawyers, when we tie their hands, we remove the glue that binds the system together. In essence, we remove the opposition and an important enforcement and check against tyranny. When you remove those who are trained to stand in the halls of justice and shout that the emperor has no clothes, you silence an important voice and a powerful check on unfettered and unchallenged power. We are defenseless and in an ironic twist, it is us who are naked.
DB: There’s an expectation that the law and legal profession ought to be above politics. As a political scientist, I think this is naïve. Am I too cynical about this? Or is there room for both points of view in today’s fraught political climate?
MR: I agree with you that to think that justice and the law are completely free of political influence is naïve. But that doesn’t mean that the system is corrupt; it means that the system works in the real world. I think that most judges work hard to be aware of their political biases and opinions, and to make decisions based on the law and the facts.
There are different schools of constitutional interpretation. These schools of thought, these approaches to constitutional interpretation, are not themselves political. All decisions have a political context and some have political ramifications, but that doesn’t make the decisions themselves political in nature. I think it is important for us to remember that. Today everything has been politicized and everything is evaluated through political lenses. This can distort our perception of the decision making process itself. And I think that distorted perception happens a lot more than court decisions made for purely political reasons.
DB: I’ve been thinking about how we acknowledge the seriousness of political developments without falling victim to recency bias and hyperbole. How do we distinguish actual autocratic tendencies and the potential for democratic backsliding from simple (yet still important) political disagreements?
MR: I think it’s in the nature and scope of the president’s actions themselves. We know how to identify the routine changes new presidents make, especially when elected from the opposite party from his predecessor, and the changes the president is making are fundamentally different.
It starts with the people the president has nominated to critical positions like Defense, the FBI, the Justice Department, the Department of Health, his advisors, the Chief of Staff, etc. It continues with the unprecedented number of executive orders — not just the number, but the sum and substance of those orders; the wholesale dismantling of the executive branch, not just needed reforms; and the seeming irrational and ill-considered actions of DOGE that are taking a chainsaw to government rather than using a scalpel to make considered and specific reforms.
It continues with the open and deliberate politicization of the Department of Justice, and attacks on the judiciary, the free press, lawyers, and the seeming antipathy for the constitutional separation of powers, checks and balances, and the limits of executive power. This is unprecedented and deliberate. We don’t have to guess at or interpret what the president is doing;phe has been quite open about it, both as a candidate and now as president.
This isn’t politics as usual; this is demolition. To what end is the obvious question, and the obvious answer, after considering all these things, is the aggrandizement of power in one person—the president himself—and a radical vision of revenge, power, and punishment. With one party in control (if barely) of both chambers of Congress, a confused and disorganized opposition, and a sycophantic following of the “dear leader” by the party in control of the levers of government, we are living in unprecedented and dangerous times. This is not hyperbole; it is cold reality.
DB: This has been a pretty discouraging conversation, Miguel. What about where we are today gives you hope in our political system? How can Christian citizens be hopeful in times of political challenges?
MR: I think that as Christians we are called to get engaged like never before. We must be the voices of justice, of grace, of love, of treating our fellow citizens as ends in themselves and not as a means to some political end. We must show mercy to the poor, the widow, the orphan, the immigrant (even if we seek to rationally and humanly enforce the laws that protect our borders). We must organize, speak out, stand for Christian values (not Christian nationalism), and speak truth to power.
We must vote. I will repeat myself: We must vote — and especially in the upcoming midterm elections, in numbers like never before. Vote with an end in mind: To protect democracy from autocracy and to protect our institutions, our way of life, our freedoms, and in the end, democracy itself. This isn’t political; this is something that members of both parties should agree on and rally around.
What gives me hope is that there is a glimmer of realization that what is happening is unprecedented and people are beginning to speak out. The judicial branch is reacting to enforce the rule of law and the Constitution. In the end, we are a resilient and free loving people — rugged individualists with a vision of government of the people and by the people, and a steadfast belief in the rule of law, even as we know it is imperfect.
As Benjamin Franklin said, we have, “A republic, if you can keep it.” Notice the use of the word “you.” It is us, we the people who are ultimately responsible for the government that we elect. We are still a constitutional republic, a democracy. It is not too late for us to react.
I am a realist. Our system of government isn’t perfect and never will be. That’s not our goal. Our goal is a “more perfect union.” Democracy, the rule of law, checks and balances, our bloated institutions, a free if frequently biased press, untethered but ethical lawyers and law firms, an independent if imperfect judiciary, and the Constitution itself — it is up to us to keep it. And yes, reform it, but do so with empathy, with compassion, with the love of Christ at the center of what we do, and with considered, rational, well organized reforms that make a more “perfect” union, not dismantle it. We are citizens of the greatest democracy the world has ever seen. Let’s act like it.
Miguel is also a Sherlock Holmes aficionado, and has written two novels in the Holmes universe.