Professor Scott Cummings was visiting and teaching at the Cosmos Lab during the month of May. We interviewed him on his work, asking the first question on what was happening in California where the Immigration and Custom Enformcement (ICE) is raiding communities. 

‘What is happening in California seems to be taken from an authoritarianism manual: creating a legal justification to invoke greater powers. The protests in Los Angeles were essentially peaceful until the National Guard was sent in. Trump is using them to understand how far and where he can use force to suppress dissent by falsely claiming that a national emergency is underway”.  Scott Cummings, professor of legal ethics at the University of California, believes that the administration is using the law and jurists to change institutions from within. He has written about this in the past, and it was difficult not to ask him about it, given what is happening in California. “If we look at the processes of autocratic drift in recent years, it seems to me that the path chosen by democratically elected leaders who aim to accumulate powers not provided for in the constitution is not that of an old-style coup d’état, but rather the use of what appear to be legal means, identifying loopholes in the constitutional order. The new autocrats exploit loopholes in the system to remove any checks on their power. This path progressively erodes the safeguards protecting democracy. To embark on this path, autocratic leaders need lawyers and jurists on their side”.

A broad question: why is it important to research the way the law is used against the rule of law?

If you look at what people call contemporary democratic backsliding, or these processes of autocratization in the contemporary era, the basic idea is that if you’re a democratically elected leader and you want to amass total permanent power, the way you do it is not through the old style military coup where you get the generals to mobilize the military and knock off the current government, but you do it through what appear to be at least legal means, finding what I call legal loopholes in the constitutional order that allow you to expand power and dismantle, or at least weaken, the institutional checks on executive power. This is a new idea of autocratic legalism, autocrats rule by law, they don’t rule by force, and they exploit these gaps in the constitutional system to knock down any checks on their power, and eventually, by following legal processes and mandating laws, they undermine the guardrails of democracy in a way that allows them to permanently rule. The key message is that this is a legal strategy, not a strategy by force. Leaders who are democratically elected can convert that democratic mandate into permanent power by knocking down institutional guardrails through ostensibly legal means. In doing that, they need lawyers on their side, and so this is why in these emerging autocracies, you often have inner circle of leaders dominated by lawyers, sometimes the leaders themselves. Victor Orban’s a lawyer, the Vice President of the United States is an elite trained lawyer. You have lawyers in the background understanding how to exploit the system in order to knock down democratic guardrails. Lawyers are super important to the strategy.

As an example of this, you reconstruct the Stop the Steal campaign meant at overturning the 2020 election result.

The way to think about the Stop the Steal campaign is to see a last-ditch effort to use and abuse legal processes to overturn a legitimate election in favor of Joe Biden. And I think the way to think about the 2020 election is that it did two different things. One is that it demonstrated that law could be a tool in this process of fostering democratic distrust, and even if you didn’t really have legitimate legal claims, you could flood the legal system with made-up fake claims, with disinformation, and convince a lot of people that there was a problem that needed to be addressed through emergency powers. In this case, the president was claiming he was going to stay in office even though he lost. So extraordinary extra-constitutional powers.

The other part is that it revealed that there were lawyers within the conservative legal movement that were willing to pursue radical, anti-democratic aims, and to cross legal and professional lines in order to serve a president aiming for autocratic power. And these two things were really essential lessons. It failed because it was not well-designed. It was last-minute, and they didn’t really have the political backing in order to effectuate it, but they learned critical lessons from that experience that then they used to develop a governing strategy for 2025.

The legal attack to the election system is not exactly new, there is a long story of State laws who were drafted by lawyers and independent organizations that lobby elected officials in local assemblies and manage to make them approve.

There’s a legal network that works on this, and it has some story now. If I think about other pieces of the conservative movement this seems to be the end of something and a new beginning. This conservative legal movement in particular, the conservative movement, as we kind of have traditionally understood it, arose in the 70s and 80s as a reaction to the civil rights movement and the New Deal era. The conservative legal movement arose in the 1980s, roughly, in order to push back against the success of left liberal lawyers in the United States that had managed to use law and court strategies to expand rights for underrepresented people, black Americans, women. For roughly 30 years this conservative legal movement operated kind of within the zone of normal political conflict. They had ideas. They wanted to roll back civil rights laws. They wanted to reverse Roe v. Wade and make abortion illegal. They had specific legal goals that were legitimate.  I don’t agree with those goals, but they were within the zone of conflict, and they pursued them through legal and political strategies. My marking point is around the start of the Obama administration when the infrastructure of legal mobilization and political mobilization was already in place. What happens then is that part of that infrastructure gets radicalized toward a different aim, which is moving outside the zone of normal political conflict to reorient the political system fundamentally away from basic democratic standards.

Why does this happen? The other background piece, is this growing mobilization of what I would call disinformation to undermine the integrity of democratic institutions, particularly elections. And this is a complicated story, but a big piece of this is the polarization in the United States and the creation of extreme ideas. On the right, this has become aligned with a lot of conspiracy theories, and I think one of the original conspiracy theories that you can point to that really fundamentally reshaped American politics was the conspiracy that elections were not credible, that there was systematic fraud, particularly in these close battleground states, that undermined the integrity of the election and that justified what I would call voter suppression laws, these laws that are disseminated through these states and can make it really hard for people to vote.

But the more important thing in some respects is that it made lots of people, particularly on the right, distrust the outcome of elections. So going into the Obama era, you had both this infrastructure of right-wing legal mobilization in place, and you had this growing movement to use disinformation to advance legal strategies that were fundamentally anti-democratic, like suppressing people’s votes. They then converged, in some respects, in opposition to Obama, and the kind of example that’s really key is the movement to suggest that he wasn’t a U.S.-born citizenship, which was a disinformation strategy, and it got picked up by people who claimed to be within the conservative legal movement. These forces are already at play when 2020 comes around and Trump says the election was stolen. There are already lots of people who are primed to believe that an election can be stolen, and there are already a bunch of lawyers out there that are primed to litigate cases that they believe are in advance of this now far-right element of the conservative legal movement. I think the surprising thing out of 2020 was that there were so many of these lawyers that were willing to jump in and make claims that had clearly no factual basis in most of the cases, not all, but most of the cases, and to really push the country pretty close to the brink of a coup. That didn’t work, but in the failure were essential lessons to how to make it work the next time around.

Thinking about the war against law firms, you argue that the Bar Association can play a role in the battle…

There’s a few different ways of thinking about this. So, I guess to connect the dots a little bit. One on the side of the MAGA movement, the lesson was for this plan to really work, we need lawyers inside the government who are willing to essentially go all in and make legal changes and legal arguments that are necessary to undercut these guardrail institutions and attack the election and the bureaucracy as an independent force, attack the legal profession. We need lawyers who are willing to do that without any hesitation, completely 100% loyal to Trump. In 2020, he had some but they were on the periphery. The inside government lawyers in 2020 actually ultimately blocked Trump from executing his plan. So in 2025, they get the lawyers inside government that are willing to do exactly what he wants, and they are executing exactly what the strategy is so far, and that means designing and drafting these executive orders, many of which are facially unconstitutional.

And then particularly as a government lawyer with higher standards to the public, you’re not allowed simply to be an advocate for a private client, the president, and you’re definitely not allowed to advise and execute illegal plans.  One lesson from 2020 was you need these lawyers who are going to do whatever you say, and he got that. The other lesson is that the lawyers who violated all these rules during the lawsuits, all got charged by the bar with ethical violations, and the key architects have essentially lost their licenses, although their cases are still at various stages of appeal.

My argument has been the bar could basically take these precedents from these cases that basically say you’re not allowed to make false or misleading statements in service of attacks on democratic institutions. In 2020 it was the election, but now you can say it’s the public bureaucracy or a system of due process and judicial oversight with respect to these deportation cases where they’re constantly issuing orders and they’re not complying with law.

You can take that 2020 precedent from the bar and you can start applying it to lawyers now inside the government who are operationalizing, who are drafting, designing, and operationalizing these rule of law attacks, many of which are facially illegal and unconstitutional. The professional Bar has an important role to step in and disable these lawyers. If this autocratic legal project depends on lawyers as the key ingredient because you need legal legitimacy to advance your project, you take away the lawyers. I’m not saying you can stop the project, but it makes it more difficult. Would that invite a  backlash from the White House? To me, the question is what’s the alternative? Already we see that the bar is being targeted by the administration. The American Bar Association has had federal funds withdrawn.

The administration has withdrawn the privilege of the American Bar Association to interview and evaluate proposed judicial nominees, which has been its historic role throughout the last hundred years. There’s already been a campaign against the American Bar Association. My view is that it’s imperative for the bar to get out ahead of this attack on their institutional legitimacy and to take action while there’s still time because if power consolidates within the government, then they’re going to crush the bar anyway, and then there’s not going to be any lever of power.

I wrote this New York Times piece about the Law firms executive orders and they are really interesting for a couple of different reasons. One is, they’re basically unconstitutional, three courts that have issued permanent injunctions against the orders.

There’s been seven orders issued so far against law firms and all claim that the law firms have engaged in some kind of misconduct or professional abuse without any substantiation or evidence. This is kind of part of the playbook. If you look at not just the law firm orders, but most or if not all of the orders, they feed into a narrative that there’s been abuses in the system, and these orders are designed to correct them.

But in fact, what the orders do is they advance the very wrongdoing that they claim to be solving. In the case of law firm orders, they say these lawyers are corrupt and therefore we are going to punish them. But what the orders actually do is that they enable corruption within the ranks of Trump’s government lawyers because it prevents these law firms from actually bringing lawsuits against the government to challenge government misconduct.

One of the underappreciated aspects of the law firm orders is that these law firms in the United States play a very unique position in the overall democratic system because while they represent big corporations, unlike really any law firms in other parts of the world, they also represent people who can’t pay for legal services and critically non-governmental organizations that are defending fundamental rights and the sort of democratic values such as the ACLU (American Civil Liberties Union). These organizations have come to fundamentally rely on these big law firms to provide pro bono legal services to them in their cases challenging government overreach. The ACLU now has a bunch of cases against the government for its illegal treatment of immigrants and its detentions and deportations and historically, this is something that these law firms would jump into and provide tens of thousands of hours if not hundreds of thousands of free hours to help these organizations and defend these clients. What these orders are designed to do in part is to prevent that from happening and we see this with the law firms that have essentially made agreements with the administration. Their agreements are in part that they will devote pro bono resources not to immigrant clients but to Trump-designated clients.

And this is really important because it means that these immigrant clients are not going to be able to access these big firm resources and big firms in the U.S. are really the only institutions other than the states which don’t always have standing to fight the government to take on the government because they have so much money. I think that one of the key things that these orders are designed to do is to really undercut the adversarial process by eliminating or at least making more difficult the ability of these firms to take on cases against the government. And there’s been a lot of reporting already that even firms that haven’t agreed with the government have stopped taking on so many pro bono cases, particularly for immigrants against the government.

A group of firms have succeeded in pushing back and litigating against the government and then a group of firms that have tied themselves to the administration.

This idea of saturating the air with narrative about something seems to be one of the main ways of this strategy.

That’s a key point. If you compare what’s going on now in the United States to what has gone on in other autocratizing countries, particularly Hungary, which is proclaimed as kind of the model for the U.S., in Hungary, at least at the beginning, with a two-thirds majority of parliament, Orban could actually change laws pretty easily and comply with legal process.

What Trump is doing in these cases lacks legal basis, and in order to justify fundamentally illegal actions and cloak them with the idea that they are legal, they are mobilizing this master narrative. One of the key functions of these executive orders is actually public relations, if you look at these orders and the way they’re titled and the facts that are contained in them, they precisely track on to the master narrative that Trump has proposed since he ran for office in 2016, which fundamentally are organized around the idea that immigrants are criminals and rapists and drug dealers and, you know, there’s an invasion that requires military action against immigrants, which is a false claim that then is used to invoke legal authority to engage in these unconstitutional, lacking due process deportations. The same is true in these law firm orders, so the logic of using disinformation to provide cover for illegal actions cuts across all of these different domains. You see with the law firm orders because, like I’ve already said, they make claims that the lawyers in these firms have violated some sort of law or professional duty without any justification, and then they use that false claim to give authority to punish, and this is part of the same kind of basic playbook strategy.

A third example would be around the university targeting, because there you see false claims of discrimination and anti-Semitism, which isn’t to say that anti-Semitism is a problem, but the false claims are that the schools are not doing anything systematically to address it, and also the false claim that the school’s DEI programs are violating federal anti-discrimination, among which they’re not. Those false claims feed into the narrative because he likes to criticize DEI, he likes to raise anti-Semitism as a fundamental social problem within universities, and these are then used to justify these illegal actions, which are withholding funds that have been already earmarked to research and threatening to do things like take away tax-exempt status and rescinding visas on no basis for these international students. This master narrative disinformation strategy is embedded in all of these actions, it’s used to justify what are fundamentally illegal actions. This separates the Trump playbook from other autocratic playbooks that at least at the beginning seem to follow legal process.

And what are the guardrails? You have mentioned Bar associations, then there’s federal judges. Where are the boundaries here?

A lot of things that we took for granted were really not based on hard law, they’re based on respect norms, and when you have someone who’s not willing to respect the norms anymore, then things can fall quite rapidly, but we’re beyond the point of respecting norms, we’re at the point of disrespecting actual law, right, actual court rulings, actual constitutional law around free expression, as clearly stated, the actual constitution in the birthright citizenship case, right, the order is contrary to 150 years’ worth of settled constitutional law. The strategy is to continue to push the boundaries and also to buy time and evade judicial oversight, so these are all cases where they’re playing a game of “catch me if you can”, they’ll try to keep it out of court, there’s a lot of kind of clever legal maneuvers that are being utilized to try to avoid ultimate reckoning with some of these cases, because they’re going to lose the birthright citizenship case, it goes to the Supreme Court, they’re trying to keep it going as long as possible, just so chaos to make people fearful, and to tamp down dissent, right, because if people don’t think their rights are going to be respected ultimately, if they don’t think they can turn to courts and the legal system to respect their rights, then a lot of people aren’t going to do anything. People are going to be scared, U.S. citizens have been stopped at the border, lawyers for students who have been detained have been stopped at the border and searched for no reason other than intimidation. Pushing the boundaries of legality you start with the most vulnerable people, undocumented immigrants, immigrants that are here on visas that can be easily rescinded based on false or misleading claims and misconduct, and then you push it out, and people are fearful to say anything that’s contrary to the administration because there’s a real fear of reprisal. What can be done?  If you study democratic decline in other countries, it’s acting with collective resistance quickly, not waiting. I think already in the United States, the democratic resistance is behind because they came out very swiftly with a lot of force, caught people off guard to some degree. Acting quickly in the face of these autocratic maneuvers is very essential, and I think that there has to be action across different sectors of society, which is to say that lawyers play a really critical role in resistance because lawyers are central to this autocratic project, so lawyers have to stand up and say, this is actually not legal, and if lawyers do that with a unified voice and with solidarity, they can actually make a difference. In countries that have, undergone these kinds of processes, a lot of them that resisted or at least maybe slowed down the processes to some degree, Lawyers collective action matters to some degree, and it’s been lacking in the United States mostly, and I think part of that is, again, fear, retribution, economics, these big law firms fundamentally are profit-making institutions and they don’t want to jeopardize their bottom line. However, I think there have been a growing number of individual and collective examples of collective action in the profession that I now think are starting to gain some momentum. We’re in the center on social movement studies, and the thing we know about social movements and democratic resistance is that momentum matters, and momentum is actual and psychological, and so people have to feel that there is hope for change, and that hope has to build off of examples of people acting courageously and standing up to these powerful forces, and that can start to expand, and people can start to imagine a better future, so we have now, you know, these lawyers, young lawyers and law students either quitting these law firms or refusing to give their labor to them, and, you know, that’s a powerful symbolic message, and also it can, over time, have an economic impact on these firms because they fundamentally rely on talent, right, and human capital, and so there’s been some high-profile examples of that.

There’s been collective statements by some law faculties and law deans, and there was a national law day where thousands of lawyers across the country went out and protested. These examples of collective and individual courage are now multiplying. At least they’re there, and they’re getting picked up in the news media, and I think that does kind of change, at least for some people, the possibilities for resistance.

So there has to be a broader combination of social movement activism. During the first month of Trump’s presidency in 2016 there were millions of people in the street protesting and that hasn’t happened this time, but there’s been growing street protests. You know, courts have held up so far. That’s also important, but there has to be civil society activism, legal sector, rule of law protection, the judiciary has to do its part, and then the big question is where are the sort of organized political resistance and, you know, what’s going to happen with the Democratic Party in the next couple of years? All of that has to move forward, right, for us to have a chance, for us to have a chance, and I think right now we are speaking about chances because if you look at other countries where these kinds of legal moves have been made, they don’t end with the leader leaving office and calling for free and fair elections the next time around.