The rule of law is being shaken like rarely before in the US – how will the American Bar Association respond?
We might be entertained by events across the Atlantic. Some of the fireworks are illuminating our own lives here as lawyers. Even if they don’t, it is instructive to see how American lawyers are responding to the upheaval.
First, to deal with a direct effect on us, one of the Trump executive orders on immigration – the one that puts pressure on sanctuary cities in the US (‘Enhancing Public Safety in the Interior of the United States’) – had a paragraph of which we should all take note: ‘Sec. 14. Privacy Act. Agencies shall, to the extent consistent with applicable law, ensure that their privacy policies exclude persons who are not US citizens or lawful permanent residents from the protections of the Privacy Act regarding personally identifiable information.’
Alarm bells have rung in Europe around the extent to which this paragraph might undermine the Privacy Shield, the new arrangement to replace Safe Harbour which was struck down by the Court of Justice of the European Union – and which is supposed to ensure that EU data can enter the US safely. The European Commission has sought to downplay fears by pointing out that the Privacy Shield is not underpinned by the US Privacy Act.
But the situation has sufficiently worried the Article 29 working party, made up of all EU national data protection authorities, for it to announce that it will send a letter to the US authorities expressing its concerns, and asking for clarifications on the possible impact of this particular executive order on the Privacy Shield.
We are only four weeks into the Trump administration. We know that it will put America first. Therefore, the privacy of EU data entering the US will be continue to be in a fragile position.
The American Bar Association (ABA) has been in overdrive since the inauguration. You will not be surprised to know that it has stood up strongly for judges and the rule of law. Its president recently said: ‘There are no “so-called judges” in America. There are simply judges – fair and impartial. And we must keep it that way.’ I have yet to see its response to the comment from president Trump’s recent press conference when he said that his immigration and refugee executive order failed to be upheld because of a ‘bad court’.
Regarding the implementation of that same immigration and refugee executive order, the ABA acted quickly to co-ordinate the activities of various of its entities to provide a website resource for lawyers, described as ‘a portal to harness the energy of the legal profession and coordinate the efforts of lawyers helping immigrants in response to president Trump’s Executive Orders altering our immigration system.’ The ABA president has praised those lawyers from around the country who flocked to airports at the time to assist immigrants.
Any UK immigration lawyer helping people to enter the US after the recent executive order will find the portal helpful, since it collects all relevant information in one place. Doubtless, it will become the go-to place when the new executive order finally arrives, to replace or revise the current one, an event promised for a few days’ time.
The ABA is also tracking what is happening to various other executive orders in the courts and elsewhere. You can find out whether one is being litigated, for instance – like the executive order on ‘Eliminating two existing regulations for every new regulation’ which is being challenged by NGOs and a trade union in a district court in DC. Again, UK lawyers dealing with the effect of the new executive orders on their clients will find this resource, which is constantly updated, also helpful.
The ABA has apparently not always been so bold in dealing with Donald Trump. The New York Times reported last year that it had stifled a report calling him a ‘libel bully’. As so often with stifling attempts, the original article has been published anyhow. It claims that president Trump and his companies have been involved in 4,000 lawsuits over the last 30 years, but that they have not won a single speech-related case filed in a public court.
It is obvious that lawyers are going to play a central role in the Trump administration. The rule of law is being shaken as rarely before in the US, and the strengths of its legal system tested to its limits. The ABA doubtless has both pro- and anti-Trump members, and has to tread a fine line. Nevertheless, its president said recently: ‘This is the ABA’s defining moment. To show our relevancy to our profession and the public. To hold power accountable. To insist on fundamental respect for our laws and the people they protect.’ To which we can all say: amen.
Jonathan Goldsmith is a consultant and former secretary-general at the Council of Bars and Law Societies of Europe, which represents around a million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs