Lawyers have taken over the country. Has anyone noticed?
The allocation of power in America—consequential unelected power, as distinguishable from elected power—undergoes subtle, periodic shifts. As events change our lives, different factions rise to exploit them.
Right now, lawyers have seized the moment, called both by duty and by naked opportunism into what could well end up as a constitutional crisis. They are investigating and defending the president. They are being used to pack the judiciary for ideological purposes. They are the new, indispensable gurus of every cable news show, presenting a challenge to journalistic ethics.
We have seen nothing like it since President Dwight D. Eisenhower warned, as he left office, of an omnipotent new force he identified as the military-industrial complex.
The Cold War, Eisenhower realized, had established the defense industry (an octopus of arms manufacturers newly fortified by aerospace) as a power too big to control.
Then came another new concentration of power that was deemed too big to fail. Once the Cold War was done and we could relax, for a while, about nuclear mutual self-destruction, the nation enjoyed a boom of imagined endless affluence, driven by home ownership on the back of which rode the innocently-named financial services industry. Every bank, from Main Street to Wall Street, was busy inventing and playing with funny money. Money was the power and the drug.
Ten years ago that all went belly-up. The world’s economies were ravaged. What could be a more consequential form of power than being responsible for that, barring nuclear war?
Bankers became a new class of criminal, immune to punishment. Having stolen our money, they asked for government money (ours) to save themselves. They got it. Few of the architects of the Great Recession went to jail.
Then, in the course of revealing pervasive corporate embezzlement, the lawyers were summoned to clean up, at excessive hourly rates. It was their big opening to emerge as the new power players. Now, with a tide of malfeasance engulfing Washington, the lawyers are completely ascendant.
A striking way to gauge all these shifts in the allocation of unelected power is to look at how journalism has responded to each of them. Every power system comes with its own arcane devices, and if your job as a reporter is to reveal how those devices work you need new forms of literacy to do it.
Thus, in the Cold War, the military and defense correspondents became stars because only they could translate the devices of the military-industrial complex into everyday language. Then, in the Vietnam War, a new generation of war correspondents was responsible for exposing the futility of the killing fields—reporting that eventually turned public opinion against the war.
With the fall of the Berlin Wall and the collapse of Soviet power all that seemed a closed chapter of history. A decade or two of the economic binge unspooled and now it was the financial and economic reporters who became the seers of the newsroom, and the authors of a string of best-selling books.
Their time in the limelight is over. Engulfed as we are on all sides with felons of various degree and villainy, every prime-time cable show fields its newly assembled panels of legal sages, giving priority to anyone who had any experience, however marginal, with Watergate.
Who among them could have guessed that their inside knowledge of Watergate, long since past its shelf life, would suddenly be a hot ticket again? It appears, however, that the Watergate analogies have limited application in the sprawling conspiracies of now. Nixon seems an amateur.
But there is a new problem for journalism. There is no clear ethical moat between those being covered by the commentators and the commentators themselves. Sometimes they are the same people.
Consider Michael Avenatti, for example. He is surely the salient case of a national reputation being made on the back of a scandal in which he has a professional interest. He has transitioned from Stormy Daniels’ attorney to an op-ed authority on presidential privilege, moving on from the duties of servicing a client for the rewards of fame and a possible political run.
Editors and TV producers can’t be expected to worry about these distinctions. They are desperate for anyone who can succinctly explain the ever fluid elements of legal jeopardy as they apply to Trump—or don’t. Sometimes it seems that the Founding Fathers are being interrogated in absentia for their failure to anticipate a president as lawless as this one.
And how can you really apply the simple term “lawyer” to an occupation that ranges in competence from the serial clowning of Rudy Giuliani to the towering legal intellect of Ruth Bader Ginsburg? Was there ever an occupation with so many distinctions of competence and ethical standards?
It’s all very amorphous. There is no organized and clandestine network of legal interests as there was of industrial interests when the military-industrial complex was building its grip on defense policy. Instead there is such a sprawling professional fraternity of specializations, spanning civil and criminal law, that it has no monolithic identity that can be easily labeled.
The so-called white shoe law firms, those whose reputation rests not simply on their own integrity but on the integrity of their clients, have always been leery of overt political involvement. They are more comfortable working with powerful corporate clients who are as publicity-averse as they are.
Long before Trump became president he was far too flashy for them and now he is even more toxic. They watch, aghast, as the president calls in legal teams and then spits them out as summarily as he does anyone who fails to humor him or, even worse, warns him about ending up in an orange jump suit.
That brings us to the one body of lawyers who possibly hold the fate of the nation in their hands, those in public service and, most crucially, those working for special counsel Robert Mueller and also for the U.S. Attorney’s Office for the Southern District of New York. Embattled as they are, Mueller’s lawyers never leak and offer an exemplary display of integrity under pressure.
That honorable service also extends to others throughout the judicial system, where individual judges have countered the arbitrary executive orders Trump uses to bypass Congress, notably U.S. District Judge Dana Sabraw in San Diego who stepped up and ordered the government to reunite the families torn apart by the savage “zero tolerance” policy—driven by none other than the nation’s Attorney General, Jeff Sessions.
Judge Sabraw went directly to the appalling core of the case by sharply pointing out that the government had to fix a crisis of its own making.
Likewise it was federal judges who blocked the ill-considered Muslim travel ban—it was U.S. District Judge Derrick Watson in Hawaii, backed up by U.S. District Judge Theodore Chang in Maryland, who stopped the abomination in its tracks.
Institutionally, of course, the summit of unelected legal power is the Supreme Court. Here the power could not be more consequential, and the politicization of the court has never been more ominous.
There is no other Western democracy, with the possible exception of Hungary, where bedrock social and cultural policies, long settled by popular consensus, are open to reversal by a small unelected body in the grip of ideological extremes. It would be unthinkable in Europe if what are now accepted as fundamental rights like abortion and unhindered access to voting were suddenly taken away or restricted by a court.
The Economist has recently devoted three pages to this grim outlook, quoting Alexander Hamilton: “Liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments.”
In fact, under the sustained and insidious influence of Mitch McConnell, the Senate majority leader, the Republicans have been able to pursue a slow-motion coup d’etat by forcing a partisan bias in the selection of justices for the court—and in many lower jurisdictions. The sudden glare of public exposure falling on the nomination of Brett Kavanaugh has shown the extremes that the Republicans will go to in order to serve their agenda. Before the allegation of attempted rape against Kavanaugh surfaced they had successfully suppressed a long paper trail relating to his work in the Bush administration as his hard-line views on issues like abortion and the scope of presidential powers evolved.
This will establish an ultra-conservative regime that could last for generations. There are belated calls for reform—for example, that the justices should serve limited terms of 18 years and that two new justices would be nominated for each presidential term. But it’s hard to see how that would end the partisan political priorities now customary in the nomination process.
In retrospect it’s clear that America’s power elites have risen and waned in influence over decades in a way that barely registers in the short-termism of news cycles. And it’s a mistake to think that the old power systems have withered in influence simply because they no longer dominate the news. They like it that way. Stealthy power endures.
For sure, no president of either party has effectively taken control of the military-industrial complex. Defense spending is framed as a patriotic necessity that neither party dares to seriously question. Republicans get 55 percent of lobbying money from the defense industry; Democrats 45 percent.
Similarly, the masters of the universe remain at the top of their towers in Wall Street with their greed unpunished and unrestrained. A year after the crash Goldman Sachs was paying its highest ever bonus payments: $16.7 billion. Today people working in financial services, with a combination of bonuses and salaries, make nearly six times as much the average pay in the private sector.
Indeed, an analysis by the FinancialTimes shows that American banks have been able to exploit the Great Recession to make their international reach even more powerful: JPMorgan’s market capitalization of $380 billion is now greater than that of its five European rivals combined.
Many economists believe that the funny money that will bring the next crash is already stressing the system. The student loan market, for example, is exacting such costs on millennials that their prospects of becoming homeowners, once the basic middle class wealth marker, are rapidly receding. At $1.5 trillion, student loan debt has more than doubled since the crash.
The take-the-money-and-run gang captured the Trump White House from the beginning, forever memorialized in the picture of Treasury Secretary Steve Mnuchin (a.k.a. “The Foreclosure King”) and his wife parading the first dollar bills bearing his signature. At the same time the Republicans instantly discarded their counterfeit costume of deficit hawks and got their tax cuts, further fattening the fattest cats.
But they failed to see how far into infamy Trump would take them. So the lawyers have inherited the wind, and became the unelected power that will decisively shape our time, for good or ill. As prescient as Hamilton was, even he could not possibly anticipate the kind of stresses that the judiciary would face in the Trump swamp, when a small corps of lawyers constitutes the last line of defense against a lawless White House that other institutions are failing to constrain. Let’s hope they are up to it. Nobody else is.