American Bar Association president Hilarie Bass, in an interview with The Jerusalem Post, took a variety of strong stances regarding the probe of President Donald Trump’s election campaign, defining treason and factual accuracy and the state of the US and Israeli legal systems.
Regarding the investigations of Trump and Prime Minister Benjamin Netanyahu, Bass said that regardless of the outcomes of the probes, the message is “the threat that no one is above the law. That anyone who crosses the line with be prosecuted. This is also a critical tenet of democracy.”
Bass, who also co-chairs the 2,000-lawyer Greenberg Traurig firm, said that “both in Israel and in the US, as far as ongoing investigations of the senior political officer, that is something unique to democracy because under the rule of law... the law applies equally to everyone.”
“In a democracy, it is important... whether, regarding senior political officials... an independent prosecutor has unfettered independence to determine whether laws have been broken,” she said.
At the same time, the president of the ABA, which boasts more than 400,000 lawyer-members, was less clear about what Trump’s fate would be in the theoretical scenario where US Special Prosecutor Robert Mueller finds that he obstructed justice.
President Richard Nixon was on track to be “impeached for obstruction of justice... the question is whether this Congress would take action if there was evidence of obstruction. That story remains to be told. In large part that depends on what the special prosecutor concludes,” Bass said, though she hinted it could be difficult for Congress to resist a recommendation from a prosecutor as respected as Mueller.
Moving on to controversial statements by Trump and by US Sen. Tim Kaine (D-Virginia) about treason, Bass explained the role of the “Legal Fact Check” project she has spearheaded.
Following his State of the Union address on January 30, Trump essentially accused Congressional Democrats of treason for their lack of applause and their infrequence of standing in respect. The Legal Fact Check program also noted that Kaine has said that the Russia probe of Trump and his campaign went beyond obstruction of justice, “moving into perjury... and even potentially treason.”
Referring to these statements, Bass said, “One was attempting to be substantive and one was not. But we did use both as examples because neither was accurate. The goal of the fact check website is to say what the law actually is.”
Giving another example where fact check corrected an error about the law, she said that “when our president was a candidate, he made a statement that anybody who burns the American flag should have their citizenship revoked. ABA Legal Fact Check came out with a statement citing that in 1978... the US Supreme Court held that the burning of an American flag is protected by freedom of expression under the First Amendment.”
PIVOTING TO the debate in both the US and Israel about how much courts should veto decisions of the other branches of government and how much those other branches can criticize the courts, Bass said, “there is nothing wrong with criticizing an opinion of any court so long as that criticism is limited to the ruling.”
“What we have seen recently in the US is those criticisms have become more personally focused on judges themselves. We think that is a very negative trend that undermines the independence of the judiciary,” she said.
Regarding criticism of Israeli judges, she said, “it is critically important in any democracy for the judiciary to maintain independence. In the US federal judges are given lifetime appointments as part of the Constitution based on our founders’ view that judges should be free of political pressures... [and] concerns of making their opinions popular with the public.”
Addressing the debate about judicial activism in both countries head-on, she said, “I don’t really understand that concept of judicial activism if what a judge is doing is interpreting the Constitution. If they find an act of Congress or an executive order of the president... violates the Constitution, I don’t believe that makes them judicial activists. They are doing exactly what they are supposed to be doing.”
She also rejected criticism in Israel of the High Court of Justice as overstepping into areas where it could affect existential issues facing the country that elected leader should decide.
Questioning how the Israeli system works without a constitution, she still said, “Every time judges interpret a law, it has the potential to have these long-term existential effects... I don’t know how you can act as a judge without that potential being there.”
Bass discussed the controversies in the US and Israel over the process for appointing judges. She noted that “President Trump threw us out of the pre-nomination process in which the president would confidentially inform our committee who he was considering.” She said this process had helped presidents since the Eisenhower administration avoid the public embarrassment of the ABA declaring their candidates unfit.
She said that the ABA had disqualified some of the Obama administration nominees, but he had checked with the ABA before publicizing their names.
In contrast, four of Trump’s 60 nominees were viewed as unqualified by the ABA, but without having a preview, this led to multiple nominees crashing and burning in spectacular public fashion, she said.
Whereas Trump had told the ABA that “we should be not be treated differently than the [Republican-dominated] Federalist Society,” she said that the ABA is different because “it is completely nonpartisan” – adding the ABA had approved the other 56 of Trump’s 60 judicial nominees.
Bass said that this and other battles in the US over appointing judges had gotten far more partisan, and she did not think that the appointment process could be fixed without combating the broader tribalism in politics. This she said could be addressed by reducing gerrymandering, a process that insulates both Republican and Democratic incumbents and gives them only incentives to play to their bases.
NOTING THAT US states sometimes have a process for appointing judges more like that in Israel, with a combination of politicians and bar association members choosing candidates for the bench, she voiced concern about having judges involved in the process, as Israel does. She worried that “it puts judges into being in the position of being lobbied by various political interests. This makes it harder to remain above the fray.”
A recent media report in Israel caught both judges, Justice Minister Ayelet Shaked and top bar association members on hidden camera sounding like they were horse trading over appointments in a manner that led to public criticism.
A major initiative of Bass and the ABA is to study and eventually confront the trend in the US in which 50% of law graduates are women, but that by the age of 50, only 25% of lawyers are women.
She said that while anecdotally many thought the drop-off was in the window of the first five-10 years when many women tend to take time off of work to raise children, many women come back to work and the drop continues even for women who “make it” as partners in law firms.
While the full study results will not be out until the summer, Bass said “success fatigue,” the idea that “women still have to be a little better at everything,” wearing women down on the personal level, is likely one factor.
Another factor may be the “existence of implicit bias – that even high-ranking women are still underpaid in comparison to men, and a woman who takes off from work to take her child to the pediatrician is looked down on, whereas a man who takes off work to coach a child’s sporting event is viewed as “a great dad.”
Bass, in Israel for an international lawyers conference in coordination with the Israel Bar Association, said there is a strong relationship between US and Israeli lawyers, “because Israel has such an international business focus,” adding that “the large number of US-trained lawyers in Israel is very unique and makes the Israeli business community very privileged to get the benefit of that tremendous expertise.”
Greenberg Traurig is the only large international law firm with an official Tel Aviv office. “We practice US law. We don’t compete with Israeli law firms. We recognize there is a real need in Israel for firms with the unique expertise in the US practice of law who have outbound work,” Bass said