So much for 'without fear or favour' — Scottish alarm at President Trump's threat to rule of law

The Law Society of Scotland has joined widespread condemnation of the Trump administration's targeting of lawyers both in the USA and abroad, writes Joshua King.

A series of executive orders, a favourite tool of President Trump to enact swift reform, has resulted in employees of prominent US firms including Paul, Weiss, Rifkind, Wharton & Garrison LLP (Paul, Weiss) being threatened with revocation of security clearance.

This would mean a ban on entering government buildings (effectively neutering the firm in federal courts), and called into question work with government contractors.

It is deeply alarming that a long-established democratic nation would undermine the rule of law in this way.

Why President Donald Trump is targeting law firms

The motivation behind these targeted orders? In the case of Paul, Weiss, the White House cited a former partner's (Mark Pomerantz) involvement in criminal proceedings against the President.

The firm has since cut a deal with the administration to offer $40 million of pro bono work and, reportedly, rolling back diversity, equity and inclusion considerations (another motivating factor for the Trump administration)

Subsequently Skadden Arps, described in the Financial Times as Paul Weiss' "arch-rival", struck a deal with the administration to offer $100 million of pro bono work to avoid similar executive orders. And last week, Willkie Farr & Gallager reached a similar agreement.

Elsewhere, an executive order targeted those working for the Hague-based International Criminal Court (ICC), stating that “tangible and significant consequences” would be imposed on ICC officials, such as blocking of property and assets, as well as the suspension of entry into the US of ICC officials, employees, agents, and immediate family members.

The US does not recognise the jurisdiction of the ICC.

What has international reaction been?

At its meeting on Friday, March 28, the Law Society's governing Council unanimously agreed to support calls made by the Law Society of England and Wales for the US government to respect the rule of law, ensuring legal practitioners can work without interference.

In March the American Bar Association, which itself has come under attack, issued a statement detailing the hostile environment for legal professionals in the country, which has resulted in reported personal attacks, intimidation, firings and demotions for justice department lawyers and assistant US attorneys.

Some firms have resisted similar orders - Jenner & Block, WilmerHale and Perkins Coie have sought court redress and judgers have frozen parts of orders for being illegal.

Susan Murray, President of the Law Society of Scotland, said: "The Council of the Law Society of Scotland unanimously supports the call for restoration of respect for the rule of law, so ensuring that legal professionals can carry out their work without fear of sanction by the US Government.

"It is deeply alarming that a long-established democratic nation would undermine the rule of law in this way. It is essential that legal professionals can undertake their work without fear or favour and no lawyer should ever be a target of government simply for doing their job.

"As members of the legal profession, we have a special duty to stand up for the rule of law and the independence of lawyers and judiciary, not just here in Scotland, but around the globe. We fully support our colleagues and peers who have been targeted by the US Government and are adding our voice in condemning all and any threats to lawyers for the important work that they do in upholding the law."

As a signatory to the letter from a number of UK and international bars and associations, the Law Society of Scotland is urging the US government to:

• Rescind the executive order imposing sanctions on ICC personnel and their immediate families
• Immediately halt all acts of intimidation, hindrance or harassment of legal professionals and any improper interference with their work
• Ensure respect for the fundamental principles enshrined in the UN Basic Principles on the Role of Lawyers that protect legal professionals and ensure they can perform their professional duties without undue interference.