Bench Memos

Law & the Courts

Two New York Lawyers Choose Violence over Oath to Defend the Constitution

People loot Soho businesses after the protests in New York, June 1, 2020. (Eduardo Munoz/Reuters)

George Floyd was deprived of the ultimate civil right — the right to live — by a lawless police officer. The State of Minnesota has charged that officer with third-degree murder and second-degree manslaughter. If convicted, former police officer Derek Chauvin could spend up to 35 years in state prison. In the first instance, we see the law’s limits — an officer sworn to uphold it flagrantly disregarded it. In the second, we see the meaningful application of it — a man justly deserving of its strong hand has been charged and held to face judgment.

As a civil-rights lawyer, I’m sickened by Mr. Floyd’s unlawful execution and desire swift justice for him and his family. As a criminal-defense lawyer, I want Derek Chauvin prosecuted with all of the guarantees of due process that our Constitution grants criminal defendants. That means he will not stand trial any time soon. As the prosecution builds its case, it must disclose relevant evidence to Chauvin’s lawyers so that they can mount a constitutionally effective defense. This includes challenging the state’s evidence for irregularities, arguing pretrial points of law, and no doubt moving for a change of venue. As the old proverb holds, “the wheels of justice turn slowly, but grind exceedingly fine.” Absent a plea agreement, I’m confident Minnesota citizens will send Chauvin where he belongs.

Not everyone is content to let the law run its course. Peaceful protesting has given way to rioting and looting. A compliant media films the plunder in real time but finds facile ways to excuse manifest criminality. CNN’s resident monologist, Don Lemon, has been a particularly smug defender of the violence, fashionably (and preposterously) comparing the vandals to the Sons of Liberty’s patriotic actions during the Boston Tea Party. These assertions, in effect, rationalize the rampage and thereby contribute to further violent disorder.

Nothing done during the riots, in all of the American cities smoldering right now, has been as outrageous or terroristic as the alleged actions of two New York lawyers, just days ago. Colinford Mattis, a laid-off corporate attorney admitted to the bar two years ago, and Urooj Rahman, a jobless attorney admitted to the bar last year, have been accused by the United States Department of Justice of acting in concert to torch an NYPD vehicle in Brooklyn. Captured on surveillance video, Rahman threw a Molotov cocktail at the police vehicle and then took off in the getaway car driven by Mattis. NYPD officers gave chase, apprehended the lawyers, and recovered from their vehicle “several precursor items used to build Molotov cocktails, including a lighter, a bottle filled with toilet paper and a liquid suspected to be gasoline.”

Upon admission to the New York bar, a newly minted attorney swears that “I will support the Constitution of the United States, and the Constitution of the State of New York, and that I will faithfully discharge the duties of the office of attorney and counselor-at-law.” New York’s appellate court has explained that the attorney’s oath of office contains “a pledge of such gravity and importance that the Legislature has seen fit to require that it be administered orally in a public court . . . [and] its obligations endure for the life of the attorney’s career at the bar.”

The gravity of the oath reflects the lawyer’s station in American life. Alexis de Tocqueville wrote that “lawyers are called on to play the primary role in the political society,” and they create “a form of public responsibility and accountability that would help preserve the blessings of democracy without allowing its untrammeled vices.” “When the American people is intoxicated by passion and carried away by the impetuosity of its ideas,” he reasoned, “it is checked and stopped by the almost invisible influence of its legal counselors.”

What does it say, then, that not one but two lawyers engaged in violence of such evil and potentially deadly dimensions that they superseded the intoxicating passions of the riotous mob? Rather than stabilize republican government during its most contentious moment, they discarded their oath and any lawyerly instinct for self-preservation to engage in domestic rebellion. They have, it seems, pledged their allegiance to something greater — more transcendent — than our Constitution.

At present, their actions can only be plausibly explained as an act of religious conviction. Linguist John McWhorter has examined the pious underpinnings of “a profoundly religious movement” called “third-wave antiracism.” Its scripture teaches that “whites are permanently stained by their white privilege” and can only receive absolution “by eternally attesting to it.” The church of antiracism predicts “Judgment Day” will come when “America comes to terms with race,” and public demonstrations and announcements of progressive orthodoxy on race — or virtue signaling — “channel the impulse that might lead a Christian to an aggressive display of her faith in Jesus.” In this church, Ta-Nehisi Coates is the supreme pontiff, the 1619 Project the catechism.

Taken together — the genuine outrage at the killing of George Floyd, the continuing complicated relationship between police and minority communities, and a woke zealotry that instills an abiding belief that America is a fundamentally corrupt, inherently hypocritically, and irredeemably racist experiment that needs to be dismantled and reconstituted consistent with the tenants of antiracism — the ideals that Mattis and Rahman swore to in their attorney oath of office never had a chance.

America’s greatest lawyer — and president — Abraham Lincoln, wrote in his July 1, 1850, “Notes for a Law Lecture” that, “As a peacemaker the lawyer has a superior opportunity of being a good man,” but a “worse man can scarcely be found than one who . . . stirs up strife.”  “A moral tone,” he believed, “ought to be infused into the profession which should drive such men out of it.” It is not a stretch to hold that an uncritical and zealous allegiance to third-wave antiracism and woke ideology serves, in effect, as a repudiation of the oath to uphold and defend the colorblind Constitution. Ultimately, Mattis’s and Rahman’s flirtation with “strife” and petty insurgency will result in the loss of their law licenses (and federal prison). Having repressed a much greater domestic insurrection, the Great Emancipator would approve.

Our present crisis began with an appalling act of lawlessness perpetrated by a man who swore to uphold the Constitution. The response in major cities has been more lawlessness. But only the application of law will bring justice to the family of George Floyd and restore order to the cities. You don’t need a law degree to know that.

Craig Trainor is a criminal-defense and civil-rights attorney in New York City. He previously served as a prosecutor and as a law clerk to a federal judge. Twitter: @TrainorLaw.

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