The Sharks Circling the Boat

Marc Elias / Democract Docket
The Sharks Circling the Boat Donald Trump. (photo: MSNBC)

One of the best pieces of advice I received when I started a law firm in 2021 was to focus on “the shark closest to the boat.” When you feel overwhelmed, step back and focus on the threats that pose the most immediate risk.

Donald Trump’s “flood the zone” strategy is designed to overwhelm us. He wants us to be paralyzed by fear and hopelessness. He wants us to feel abandoned — like we are alone in a small boat, surrounded by sharks.

In some sense, we are. Since Trump was elected, we have searched for institutions that would protect us from his authoritarian impulses. Legacy media was among the first to signal it was not up to the task. The wealthy and business elite followed, capitulating almost entirely. Republicans in Congress made clear they would not stand in Trump’s way on anything. Meanwhile, the executive branch has been packed with Trump loyalists, while nonpartisan civil servants are being purged.

Our only real defense against the circling sharks — however imperfect — has been the courts. And in recent weeks, Trump has begun targeting them with precision.

I could list the familiar reasons why the courts are not ideal protectors of democracy right now, but let me focus on two key weaknesses Trump is exploiting.

First, for courts to act, they need skilled lawyers willing to challenge government actions. These cases are often highly technical and require expertise in specialized areas of law. That expertise is concentrated among a relatively small number of lawyers, and historically, large, multi-office law firms have been a critical source of legal resources.

Since taking office, Trump has targeted individual lawyers with specialized skills — such as security clearances and experience representing whistleblowers — through intimidation and government action. He has not only demonized them but also imposed sanctions, revoking security clearances and barring them from entering government buildings, making it difficult for them to represent clients in these areas.

More recently, he has begun issuing executive orders targeting entire large law firms and their thousands of employees. The impact of these orders extends beyond those firms, creating a chilling effect across the legal profession. Trump hopes these tactics will discourage lawyers and firms from taking on cases that challenge him and his administration.

Sadly, it’s working. A palpable chill has settled over the legal community. Large law firms are staying silent, backing away from representing clients or causes Trump disfavors.

While smaller law firms and nonprofit legal groups remain active, sidelining much of Big Law will undoubtedly prevent some plaintiffs from securing legal representation. Those counsel willing to take on these cases will be more isolated and at even greater risk of retribution.

If enough lawyers and law firms are targeted or too afraid to act, this alone could be the shark that sinks the boat.

The other grave risk to democracy is that the Trump administration may simply begin ignoring court orders altogether. I’m not talking about the disgraceful cat-and-mouse game we’ve grown accustomed to, where Department of Justice lawyers feign confusion or make bad-faith arguments that a ruling was unclear or more limited than it was.

I’m talking about the moment when the Trump administration announces that it outright refuses to comply with court orders. Such an event would trigger a full-blown constitutional crisis — one we are simply unequipped to handle right now.

The framers of the Constitution assumed Congress would be the bulwark against executive overreach, using impeachment to remove a despot. But Republican cowardice has made that impossible.

There are ways the courts can enforce some of their rulings, but at best, these are imperfect solutions. Perhaps the business community would awaken, realizing that an administration unbound by court rulings threatens the rule of law that capitalism depends on.

The sharks are circling the boat, and I admit there are many of them. But if we don’t agree on which ones are closest and must be handled first, our situation will become even more perilous.

Trump is the greatest threat to our democracy. His attacks on lawyers and law firms are damaging our boat. If he can simply defy court orders, the boat will sink entirely.

The next time you feel outraged about something else — another shark in the water — remember: These are the sharks closest to the boat. They require all your energy and attention.

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