Building on 80 Years of Radical Lawyering in the Age of Trump

By Natasha Lycia Ora Bannan

Eighty years from now, when future generations look back at the Trump candidacy and presidency and reflect on how institutions responded to the spread of neo-fascism and the attack on fundamental rights, I am confident that the Guild will stand out as a clear example of what social justice lawyering means. We will have stood with those who refused to be silent or complicit in state-sanctioned oppression. We have been doing this since our founding in 1937. For eight decades we have defended social justice movements and protected constitutional and human rights fearlessly in the face of tyranny and state violence. The advent of the Trump administration will only mean a rededication and continuation of our work—perhaps in ways we did not expect, but that we are prepared for.

The election of Donald J. Trump brought to light some tendencies in our national fabric many of us thought had been driven deep underground. For veteran Guild lawyers and activists, the 2016 election environment hearkened back to the days of McCarthyism, when constitutionally-protected speech questioning U.S. policies or expressing sympathy with groups and individuals targeted by the government could be branded as “un-American”and lead to prison. Others were reminded of the ’60s, when anti-war protestors and draft resisters refused to fight in an unjust war because they believed in peace and an alternative political model, while our government deemed them a threat to “democracy.” Each of these eras of repression from the last century were backed by our legal system. It comes as no surprise then that, in response to Trump’s racist, sexist, homophobic, and Islamophobic speeches, as well as his initial moves to consolidate his power, Guild members have begun to draw upon these past experiences.

As an anti-racist organization, we have long fought white supremacy and the laws and policies it engenders, regardless of who occupies the White House. We have called out the folly of trickle-down economics used as an excuse to eliminate social protections. We have fought against militarism, the expansion of empire, drone strikes, targeted assassinations, CIA black sites, and torture.  We have pushed back against the war on drugs and its destruc­tive effects on either side of the U.S.-Mexico border. We have challenged the surveillance and harassment of other countries’ socially progressive move­ments. We continue to challenge in the courts (and in the streets) the unlawful concentration of power into the executive branch of government.  In essence, we’ve been fighting Trumpism, before the term was coined, since 1937.

Because of our history, we will be ready to challenge this administration even before its threats and rhetoric become policy. We will continue to chal­lenge the normalization of racism and sexism in the public arena.  Trump has called the largest group of people of color in this country, Latinos, “rapists” and “criminals.” He has questioned the ability of a federal judge to adjudicate a case in which he was a defendant because of the judge’s ethnicity.  He has bragged about sexually assaulting women. And yet his language—regardless of how insulting, degrading, or hostile—has always been framed as American patriotism. For Trump, anyone who disagrees with him is “un-American.”  In this way, Trump has  tapped into dangerous sentiments that have erupted periodically throughout this country’s history.  These reactionary sentiments, rooted largely in the ideologies of white supremacy, xenophobia, and patri­archy, are still felt every day in communities across the country.

We see the structural racism Trump embraces and seeks to exacerbate in the widespread police occupation and violence against communities of color, in the detention of immigrant families, in the warrantless wiretapping and surveillance of Arab and Muslim communities, in the over-regulation of poor citizens and in the under-regulation of corporations. While shocking to some, the signs of what is coming are no surprise to the many Guild members who represent, or are themselves part of, these over-policed and under-resourced communities, particularly communities of color.  Economic and state violence has always operated in these communities, and we have always been ready to challenge the unregulated exercise of state and corporate power. And we are ready now.

The promise to “Make America Great Again” is the language of im­perialism and war.  It is language that sends chilling signals to who may be targeted by a Trump administration. Once we clearly identify the “us” against “them,”  any variations on dictated behavior and conduct can lead to harassment, discrimination, abuse, torture and aggression against other nations and peoples. We will be called upon to defend these communities in the streets, courtrooms, schools, churches, homes, and community centers.  Our mass defense work, for which we have become renowned over the past decade, must and will be prepared to respond to the potential criminalization of dissent, speech, and assembly, all of which are basic rights guaranteed by the First Amendment.

The imperialist and racist campaign promise to “Make America Great Again,” clearly implies who the country is intended to be “great” for, as well as who will continue to be exploited, harassed, detained, and criminalized in their labor and in their lives. If transformed into policy, this promise will forcibly remove many immigrants who work low-wage jobs in often abusive conditions. Workers, regardless of their immigration status, will continue to be exploited as attacks on labor rights escalate, while the drive to concentrate wealth in the hands of a few will become official domestic and foreign policy. Anti-immigrant rhetoric will heighten the prejudice and fear in vulnerable communities in order to redirect their justifiable frustration with their eco­nomic position, lack of opportunities, and an unresponsive political system towards scapegoats. They will take their anger out on those “others.”

The Guild is prepared for the incoming administration because we were there during  the Second Red Scare.  During this period, when anti-communist hysteria peaked and spread its tentacles into all sectors of society, Guild members represented those most directly and famously under attack—the Hollywood Ten, the Rosenbergs, the leaders of the Communist Party, Paul Robeson, and many more. We also defended thousands of others suspected of “anti-American activities.”  This work led to the Guild being labeled “sub­versive” by the House Committee on Un-American Activities.  The heart and character of our organization has been tested as no other legal organization’s has.  Our commitment to defending First Amendment freedoms still informs the work of our organization today—work that will undoubtedly continue as attacks to our fundamental freedoms and rights only intensify.

Trump has shown that he demands the full allegiance of those around him.  When it is not given he resorts to disparaging, humiliating, bullying or worse.  He relishes personal attacks and deploys them, however false, at the slightest provocation. He has used social media to publicly malign art­ists, journalists, and activists who’ve shown the temerity to disagree with him.  He has misused the courts to sue those who criticize him in an effort to silence opposing voices. He has threatened to jail protestors—violating a basic tenet of dissent and democracy and a founding principle of our country that the Guild has fought to preserve for 80 years.

Trump’s actions and rhetoric foreshadow an effort to privatize public services and facilitate the corporate takeover of government.  The Guild has long recognized that neither democracy nor social justice is possible anywhere the where dramatic economic stratification exists.  His threats to cut the social safety net for millions of people, to roll back labor protec­tions, and to make it harder to earn a living wage threaten democracy and violate core principles  of international human rights laws that the Guild has long supported.  The Guild’s new Human Rights Framework Project will be working across committees and chapters to educate members on how to hold the United States accountable for violating its legal obligation to promote economic and human rights abroad while never violating them at home.

The tactic of the Trump administration to rule based on fear, domination, power, and privilege is something we’ve seen before. We’ve fought against politicians, here and abroad, who have deemed themselves unaccountable to anyone but themselves. Challenging unchecked presidential power and its inevitable abuses is at the core of the Guild’s long history of international solidarity work, especially in countries and regions where the United States has intervened militarily and economically to prop up oppressive regimes, finance coups, and install dictators. We are familiar with with the hand of the state in silencing dissenting voices and squashing opposition through the violent tactics of state repression, here and abroad. We’ve fought alongside the Occupy movement and #BlackLivesMatter. We’ve represented indepen­dentistas and freedom fighters in Puerto Rico and defended Water Protectors in Standing Rock, North Dakota.  We are prepared to work with our social justice allies around the world to challenge any efforts to reach beyond the constitutional limits of the Executive branch or use state resources to sup­press, repress, punish, isolate, humiliate, or torture those who refuse to stay silent in the face of a government hostile to the genuine democracy we seek to promote.

As unprecedented as this election is, the National Lawyers Guild has withstood 80 years of attempted repression, surveillance, wars, attacks on social services, state-sanctioned or -administered violence, imprisonment and political persecution.  Guild members have a deep history of resistance to draw upon. Many of our elders remain to guide us. The political and le­gal landscape may shift, but as movement lawyers, law students, and legal workers, we will not relent in our defense of fundamental rights nor in the pursuit of a righteous justice.

We will undoubtedly be called upon to think more expansively and cre­atively about our work.  We will need to look beyond the courts for remedies, as well as to the international community, to organizing and people’s tri­bunals and to legislative strategies.  Perhaps we’ll need to look at economic boycotts, technological support, at funding our work differently, building new alliances, and finding new leaders. But, whatever happens, this much is certain: we will be called upon and, as the people’s advocates, we will show up, as we always have.  There is no doubt that there are trying times ahead and our communities will be attacked in a myriad of ways. But we will prevail and we will do so under a united and expanded front.  As dif­ficult as the years ahead will be, ¡vencerémos!

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Natasha Lycia Ora Bannan is the president of the National Lawyers Guild.

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