The Trump administration’s actions continue to cause waves throughout the international legal order. There are at least three areas of turbulence at the moment: the International Criminal Court, large US law firms, and data protection.
To start with the International Criminal Court (ICC), the US Secretary of State wrote an article in the Wall Street Journal last week announcing ‘Why We’re Dismantling the International Criminal Court’. This builds on the US administration’s existing sanctions against ICC judges and prosecutors following the ICC’s actions involving Israel. These US sanctions are themselves being challenged now in the US courts. Might the US administration proceed next to sanction the whole court? Is the promise to dismantle the court brick-by-brick being given so as to avoid liability for war crimes committed by the US within the jurisdiction of countries which have signed up the ICC?
An early test for our new prime minister may be his response to the US threat. One measure mentioned is that the US government will pressure other countries, which are signatories to the ICC, to abandon the court, and, if they refuse, to punish them with sanctions, travel bans and visa revocations. The EU has come out in support of the court. Will a Burnham government do the same, when pressed?
Then there is the coercion of large law firms. The new twist in the plot begins with the lawsuit brought by the American Bar Association (ABA) against the Trump administration last month over its efforts to punish law firms it doesn’t like, asking the courts to stop the president’s campaign against their profession. The ABA president said that the administration’s intimidation of lawyers and law firms has gone on for long enough, and must stop immediately. As signs of the intimidation’s impact, the lawsuit cites law firms stopping legal work for causes the president doesn’t favour, law firms lowering their profile, and public interest groups increasingly struggling to find lawyers who will represent them.
As part of its case, the ABA has asked a judge to order the White House to hand over internal documents and communications between key advisors regarding the background to the deals done with some big law firms to avoid executive orders being issued against them last year. The Justice Department has asked the judge to quash the requests (no ruling so far), but in effective response the Justice Department has also subpoenaed the nine law firms which cut deals with Mr. Trump (including at least one with strong links to the UK, A&O Shearman), as well as against the four that fought the executive orders in court. The subpoena requests the same information the ABA is seeking from the administration, and demands in addition that the law firms’ leaders sit for depositions before Justice Department lawyers. It seems that at least one of the aims is to have the big law firms pressure the ABA to drop its case – or maybe it just aims to show a middle finger to the law firms.
We can imagine that there is consternation at the top of the firms involved. We may feel less pity for those which – foolishly in my view - came to a deal with the Trump administration last year. But, admirable as the ABA’s lawsuit may be, there are dangers for the rule of law when big law firms and the government are entangled in such aggressive manoeuvres.
And so we come to data protection. The issue arises because of the recent Supreme Court decision in Trump v Slaughter, which held that the president has the power to remove independent agency heads at will (apart from those at the Federal Reserve Board), overturning Humphrey's Executor. The Slaughter case concerned the firing of a Democratic commissioner at the Federal Trade Commission (FTC).
A sharp-eyed European data expert, Max Schrems, who has already led famous data protection cases against the EU in respect of the inadequate protection given to EU data when transferred to the US, immediately responded with ‘US Supreme Court just blew up EU-US Data Transfers’. He claimed that, for the last 26 years, the EU has relied on the independence of the FTC as the enforcer of EU-US deals on personal data (since under EU law, such oversight must be independent). Max Schrems said that ‘Given that there are no independent authorities in the US anymore, we call on the European Commission to orderly withdraw the adequacy decision on the US.’
The UK’s own adequacy system for transfers of data to the US is closely modelled on that of the EU, and so we should follow this development with interest. Not all people agree with Max Schrems’ interpretation, however, given the complexity of US constitutional law.
And so we have three examples of how attempts by the Trump administration to disturb and overthrow previous understandings of the legal order have ramifications for the rule of law, including for us in the UK.
Jonathan Goldsmith is Law Society Council member for EU & International, chair of the Law Society’s Policy & Regulatory Affairs Committee and a member of its board. All views expressed are personal and are not made in his capacity as a Law Society Council member, nor on behalf of the Law Society
No comments yet