Do the prominent lawyers representing President Donald Trump, his family and his administration—many of them Jewish—have a duty to speak out in the wake of his comments about the violence in Charlottesville, Virginia?
The president called racism “evil” and singled out the “KKK, neo-Nazis, white supremacists and other hate groups” in prepared remarks on Monday. But he earned widespread condemnation a day later when he placed blame on “both sides” and the “alt-left” for the clashes that left a 32-year-old counterprotester dead on Saturday.
“Administration lawyers are not obligated by professional conduct rules to speak up,” acknowledged Stephen Gillers, a professor of law at New York University School of Law and well-recognized ethics expert. But, he added in an email: “I believe that decency and respect for the rule of law morally requires them to denounce the president’s hateful rhetoric, insensitivity to the norms of civil society, historical ignorance, and failure forcefully to repudiate the anti-Semitic and racist slurs of the demonstrators.”
Gillers continued: “They should stress that the president’s views will not affect how they perform their official duties. Good men and women, and especially lawyers, must not let such statements pass unremarked, and especially not when they come from the U.S. president.”
One of Trump’s longtime personal lawyers, Michael Cohen, who is Jewish, defended the president to a reporter for The New York Times on Wednesday, calling him “a good man” and stating he “doesn’t have a racist bone in his body.” On Twitter, Cohen earlier wrote that he was the son of a Holocaust survivor, adding, “Just because I support @POTUS @realDonaldTrump doesn’t make me a racist.”
Other Jews among the lawyers associated with Trump’s administration remained publicly silent and did not respond to requests for comment for this story. They include: Marc Kasowitz, who is defending the president in an investigation into his Russia ties; David Friedman, Kasowitz’s former law partner who serves as U.S. ambassador to Israel; and Jason Greenblatt, who serves as the president’s special envoy to the Middle East.
Amos Guiora, a law professor at the University of Utah’s S.J. Quinney College of Law, recently wrote about legal obligations to speak out and prevent violent acts in his book “The Crime of Complicity: The Bystander in the Holocaust,” published this summer by the American Bar Association.
He agreed that strictly speaking, lawyers connected to Trump had no professional obligations to object when the president justified his failure to quickly and strongly condemn Nazi and white supremacist groups, and when he said there were “very fine people on both sides” in Charlottesville.
But Guiora said there are other considerations when it comes to opposing racist ideologies.
Although the neo-Nazis and other racial supremacist marchers may have had free speech rights, the president would not have violated those rights by condemning their speech, Guiora said.
Trump could have done so “in the strongest possible language” and then gone on to make the subtler point that it was not clear who initiated some of the individual acts of violence in Charlottesville, Guiora said. Instead, the president gave the hate speech only a glancing reference and focused on the questions about who started the street fighting.
“To not condemn them enables them,” Guiora said of the white supremacists.
As for Trump’s lawyers—and indeed anyone in his administration—”to not stand up and say, ‘Wait a minute,’ means that they are enabling the enabler,” Guiora said.