Waxing Confidential: What is happening here?

Steven T. Wax

“It Can’t Happen Here,” Sinclair Lewis’ novel that posited an authoritarian takeover of the United States through the electoral process was published in 1936. More recently, a number of scholars have identified steps in what they call the Authoritarian Playbook. These include undermining the rule of law and faith in the electoral process, chilling and punishing dissent, pitting “real Americans” against, “the other,” attacking educational institutions, attacking and co-opting the media, and attacking the legal profession. Many people are looking at the aggressive actions of the current administration and Congress’ abdication of its responsibilities and asking, “What is happening here?” and “What should I do?” Sowing chaos, confusion, and a sense of powerlessness is another part of the authoritarian playbook.

Over the next months, I will explore the threats to our democracy, the undermining of our constitutional framework, and distortion of legal norms in this space. It is difficult to know where to begin. Deportations without process of individuals who are lawfully in the country? Cutting funding for science, health, and medicine? Cutting funding to universities that do not hew to the administration’s views? Attacking news outlets and reporters with whom they disagree? Using “national security” as a talisman to justify all sorts of actions? The attacks on one of the primary institutions that acts as guardian of the rule of law—the legal profession? As a lawyer who has been in the fight for the rule of law for my entire 50+ year career, I will start this series with an essay on the administration’s attacks on lawyers.

When I was representing prisoners in Guantanamo in the early 2000s, there were some mutterings about boycotts of some of the large firms that were involved in that fight. The pushback was swift and strong, and the idea floated through a Deputy Assistant Secretary of Defense went nowhere. In the scores of talks I gave about my work in Guantanamo and representation of Portland Attorney Brandon Mayfield, across our country, in Sudan, in Germany, Ireland, and Denmark, I was always able to proudly remind my audiences that I was able to fight the President to the highest court in the land and be left alone to do my job, and that the government paid me. That is not the case today.

Forty years ago, Justice Stevens quoted Shakespeare’s famous line from Henry VI, Part 2, “The first thing we do, let’s kill all the lawyers,” noting that Shakespeare understood that “disposing of lawyers is a step in the direction of a totalitarian form of government.” Walters v. National Association of Radiation Survivors, 473 U.S. 305,371 n. 24 (1985). The Trump administration understands all too well that the legal profession stands in the way of its agenda. Scores of lawsuits have been filed since January 20, by a growing number of organizations, left and right, the ACLU, by affected individuals and businesses, by universities, and by states, including Oregon’s Attorney General, Dan Rayfield.

While the administration has not echoed Shakespeare’s villain and threatened death to members of the legal profession, it has threatened the economic viability of members of our profession including one of Portland’s largest and most respected firms, Perkins Coie. By executive order dated March 6, 2025, President Trump directed suspension of the security clearances of members of the firm, cessation of provision of any government goods, services, and material to the firm, termination of any contracts, and limitation of access to all government buildings. The effect of the order is to drive a wedge between Perkins and its clients. These actions cannot be squared with the rights of speech and association under the First Amendment, the Separation of Powers, and the right to Due Process under the Fifth Amendment.

The administration acted with the same disdain for due process it has shown to the people it has deported and sent to the notorious prison in El Salvador. It acted without any process or individualization of the more than 2000 employees of the law firm.  The reasons given for this drastic and unconstitutional action included the “dishonest” activity of the firm in representing clients the administration abhors (including Hillary Clinton and George Soros) and the positions it has taken for its clients in challenging Trump’s actions and various statutes.

Perkins Coie is not the only firm the administration has attacked.  Trump has issued similar executive orders against other firms. And, the administration has cut off funding to some of the legal services programs that help immigrants, including minors who came to the United States unaccompanied seeking a better life. And Department of Justice funds for training of criminal defense attorneys.

Part of the role of lawyers is to uphold the rule of law. When the government itself intentionally acts to undermine the rule of law, we have an obligation to stand together, to speak out, and do what we can to maintain our democratic institutions, the integrity and authority of the judiciary, and the independence of our profession. For me, that means shifting my role from Legal Counsel for the Oregon Innocence Project to Senior Counsel for its parent, the Oregon Justice Resource Center. We are studying the impact of the administration’s actions on the people and institutions in Oregon, the rights enshrined in our Constitution, and the structure of our state and local governments.

While lawyers have a special skill, we are not unique. All of us have skills and voices that we can put to use in support of each other and in support of the rule of law.

Steven T. Wax started his career as a prosecutor, served as Federal Defender for the District of Oregon for 31 years, helped launch the Oregon Innocence Project in 2014, and recently became Senior Counsel to the Oregon Justice Resource Center. He is the author of the award winning, “Kafka Comes to America,” a book about his work in Guantanamo and representation of Portland attorney Brandon Mayfield. Steve has written and lectured on the rule of law throughout the United States and elsewhere in the world. He has taught at the Northwestern School of Law at Lewis & Clark and Binghamton University.