Lafayette Square Statement
We are a bipartisan group of Supreme Court practitioners and constitutional lawyers who have collectively argued more than 650 cases in the Supreme Court and filed several thousand briefs. We write to add our perspective to the growing chorus condemning the actions taken near Lafayette Square by the federal government against peaceful protesters seeking racial justice; to call for accountability for the Attorney General and any other officials who authorized or condoned those actions; and to encourage others to speak out for what is right and just.
Last Monday evening, we watched in horror as federal officers forcibly removed peaceful protesters from around Lafayette Square to create a photo opportunity for the President of the United States. Officers with riot shields charged the assembly, striking protesters and clearly identified journalists. They shot protesters with rubber bullets. They deployed noxious gas, pepper balls, and pepper spray on the peaceful crowd. The White House has confirmed that the Attorney General condoned the removal of the protesters.
Immediately following the government’s use of force, the President of the United States, joined by the Attorney General, walked through the recently cleared street to pose for photographs in front of a church where clergy and protesters had stood just moments before. The President’s reelection campaign began widely circulating the photographs almost immediately.
Simply put, these actions are immoral, undemocratic, unlawful, and disqualifying for any official in a democratic government. The Attorney General, who, according to multiple sources (including the White House), orchestrated the action, must resign or be removed by Congress. The Attorney General’s subsequent statements, which are contradicted by other accounts, dispute only narrow aspects of his involvement and do not change this conclusion. He has not categorically denied any involvement in the removal of the protesters. Nor has he meaningfully explained how the forcible removal of the protesters can be understood as necessary to anything other than clearing the way for the President’s photo opportunity. There must also be a full investigation to identify all others involved. Any other governmental official who facilitated or condoned deliberate harm to peaceful protesters — allowing the First Amendment to be sacrificed for perceived political gain — must also resign or be held accountable. The rule of law depends on it.
Government violence against protesters seeking racial justice has a sordid history. From Bloody Sunday on the Edmund Pettus Bridge to police militarization against Ferguson protesters and countless other incidents, the history of protests for racial justice is intertwined with governments deploying violence in response. We stand in solidarity with protesters seeking racial justice.
We stress, however, that the Attorney General’s actions would constitute an intolerable abandonment of the rule of law and infringement on people’s First Amendment rights to protest irrespective of protesters’ particular message. The issue is much broader than any particular message, viewpoint, or messenger — it is the fundamental freedom from government interference with free speech, free assembly, and freedom to petition the government. As the Supreme Court explained more than 50 years ago, peaceful assembly and protest reflect an exercise of “basic constitutional rights in their most pristine and classic form.” Edwards v. South Carolina, 372 U.S. 229, 235 (1963).
These fundamental freedoms form the backbone of our Constitution and our democracy and must be vigorously protected, regardless of the views expressed. The First Amendment reflects “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). Indeed, “expression on public issues has always rested on the highest rung of the hierarchy of First Amendment values” and “is the essence of self-government.” NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913 (1982).
As the chief law enforcement officer of the United States, the Attorney General takes an oath to protect these constitutional rights and safeguard the rule of law for all. As constitutional law experts and practitioners, many of whom have litigated both alongside and against the government, we know firsthand that those principles are essential for the legitimacy of our legal institutions and our democracy. Last Monday, the Attorney General violated his oath by overseeing violence against peaceful protesters exercising their First Amendment rights. Those actions are irreconcilable with the unbiased administration of justice and the rule of law.
The rule of law and the right to assemble in protest die incrementally, not in one fell swoop. Our ability to defend their bulwarks is greatest in the moments after a new line is crossed, and it fades when the conduct becomes normalized. A line was crossed last week. And we, as lawyers, must speak out to defend it.
If you are a Supreme Court practitioner or constitutional lawyer interested in signing the statement, please fill out this form.
Signed*,
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*Signatories are signing in their individual capacities, and not on behalf of their firms, institutions, or organizations.
