With the rule of law in our country under siege, public defenders are uniquely equipped to fight back. (Excerpts from the 2025 David H. Bodiker Lecture on Criminal Justice.)
Brought tears to my 84-year-old eyes, I was a PD in New Orleans between 1980-1990, when I moved with my new wife to CA where she could make a decent high school math salary, since I was getting close to nothing in OIDP. Tried about a dozen death penalty cases - one twice because of a prosecution miscue.
I always had the client's interest uppermost in my mind and had to go to some lengths to make sure it was apparent to others on the other side, who were not always so gracious. The "rule of law" was pretty much, "let's move this along, Counsel" or "quit wastin' mah time". The prosecution was less than generous with discovery - I had a several death cases with that issue, and the reviewing judge (on writs post trial) held that it was "harmless error" (prosecution did not disclose a witness to the shooting). So I knew what it was like to be behind the eight-ball.
I know and have empathy for those lawyers. To me, they are the dike between us and a certain form of perdition born of selfishness, uncaring and lord-it-overism in certain government people who think their s--- doesn't stink.
Liz, what a rallying call to all Public Defenders, professionals and all general citizens! Your commitment to justice, compassion, equality is boundless and addictive! I'm continuing to rally with you! ❤️
Great article, reminding us of the vital role public defenders fulfill in our justice system.
For good reason, we are concerned about how Trump and his lackeys are abusing our criminal justice system to quash dissent.
But I’m actually more concerned with how Trump deploys what I call “regulatory extortion” to enforce his brand of political correctness on corporations and institutions—and their employees. My concern is that Trump will use explicit or implicit threats of adverse regulatory actions or promises of favorable regulatory actions to incentivize private employers to purge their own workforces of anti-Trump voices.
The message to corporations and other non-governmental employers is: “If you don’t want to have a rough time, or if you want to have an easy time, getting regulatory approvals or defending against regulatory investigations, it would be wise not to employ ‘bad people’ (i.e., Trump critics).” Using regulatory extortion allows Trump to claim that his administration had “nothing to do” with a private employer’s decision to purge its workforce of Trump critics. For example, when ABC’s suspended Jimmy Kimmel, NextStar, a major owner of ABC affiliates, was seeking FCC approval to purchase more ABC affiliate stations. Apparently to appease Trump’s FCC, whose chairman had openly attacked Kimmel, NextStar announced its affiliated stations would no longer carry Kimmel’s show, a decision which would in turn have substantial negative effect on ABC’s business. ABC quickly felt this pressure and canned Kimmel. Trump’s press secretary would later claim it had “nothing to do with” Kimmel’s suspension, but was “pleased” that ABC decided to get rid of him.
It is exceedingly difficult to win a judicial reversal of a regulatory agency decision, since the standard of review (for now, at least, notwithstanding the death of Chevron) is that the party challenging an agency’s action must show the agency decision was “arbitrary and capricious,” which is a high wall for a defendant to surmount. (Contrast that with the standard of proof in a criminal trial where the government prevails only by proving guilt beyond a reasonable doubt.) So rather than spending millions in a fight it probably can’t win, most private employers will avoid doing anything to draw Trump’s ire. And many private employers, to grease the wheels on regulatory matters, will affirmatively seek to demonstrate that they support Trump’s political agenda.
Regulatory extortion is also more insidious than malignant prosecutions, since a private employer’s decision to purge its workforce of Trump critics is a non-governmental action, so a purged employee generally cannot rely upon the panoply of individual rights that protect us from illegal or arbitrary government acts. In most contexts an employer can fire an employee for almost any reason (or for no reason at all), which makes it almost impossible to trace a chain of causation from the regulatory extortion to the firing of an employee.
Perhaps worst of all, the effects of regulatory extortion will be more pervasive than malign prosecutions. A malign prosecution targets only one or a few individuals. But with a single company email, the CEO of an Amazon or Walmart can oppress the dissent of millions of workers, and those who do not comply can be deprived of their livelihoods, immediately, and without much in the way of due process protections.
With regulatory extortion becoming the accepted norm, the implicit message from Trump to private employers will be, “Get control of the ‘bad people’ in your organization.” And the message from private employers to their workers will be: “If you want to have a good career, if you want to keep your job, if you want to have a paycheck to feed your family, you need to STFU and stop criticizing The Dearest Donald.”
Liz, if we have learned anything under Trump is that the rule of law is at risk. With every new federal mobilization of the national guard in our cities I see the writing on the wall as we head closer and closer to authoritarianism. Trump is following Hitler’s playbook and we are not inching towards kristalnacht anymore. We are racing towards it, and I’m sure Trump and bondi and noem and miller and Vance are going to try and get us there before the midterm elections. Once Trump declares martial law it’s game over. I think public defenders don’t have time to make a difference. I think judges are scared. There have been threats against judges and their families w pizza deliveries. Congress has enabled Trump and abdicated their power. It’s really hard not to believe we are inches away from game over. And I pray to God I have never been more wrong. If this shutdown co tinies and he gets away with depriving food to 42 million snap recipients no one is going to care about the rule of law when they can’t feed their children. Thats when riots are going to start. And that’s when martial law becomes reality.
Great article, reminding us of the vital role public defenders fulfill in our justice system.
For good reason, we are concerned about how Trump and his lackeys are abusing our criminal justice system to quash dissent.
But I’m actually more concerned with how Trump deploys what I call “regulatory extortion” to enforce his brand of political correctness on corporations and institutions—and their employees. My concern is that Trump will use explicit or implicit threats of adverse regulatory actions or promises of favorable regulatory actions to incentivize private employers to purge their own workforces of anti-Trump voices.
The message to corporations and other non-governmental employers is: “If you don’t want to have a rough time, or if you want to have an easy time, getting regulatory approvals or defending against regulatory investigations, it would be wise not to employ “bad people” (i.e., Trump critics). Using regulatory extortion allows Trump to claim that his administration had “nothing to do” with a private employer’s decision to purge its workforce of Trump critics. For example, when ABC’s suspended Jimmy Kimmel, NextStar, a major owner of ABC affiliates, was seeking FCC approval to purchase more ABC affiliate stations. Apparently to appease Trump’s FCC, whose chairman had openly attacked Kimmel, NextStar announced its affiliated stations would no longer carry Kimmel’s show, a decision which would in turn have substantial negative effect on ABC’s business. ABC quickly felt this pressure and canned Kimmel. Trump’s press secretary would later claim it had “nothing to do with” Kimmel’s suspension, but was “pleased” that ABC decided to get rid of him.
It is exceedingly difficult to win a judicial reversal of a regulatory agency decision, since the standard of review (for now, at least, notwithstanding the death of Chevron) is that the party challenging an agency’s action must show the agency decision was “arbitrary and capricious,” which is a high wall for a defendant to surmount. (Contrast that with the standard of proof in a criminal trial where the government prevails only by proving guilt beyond a reasonable doubt.) So rather than spending millions in a fight it probably can’t win, most private employers will avoid doing anything to draw Trump’s ire. And many private employers, to grease the wheels on regulatory matters, will affirmatively seek to demonstrate that they support Trump’s political agenda.
Regulatory extortion is also more insidious than malignant prosecutions, since a private employer’s decision to purge its workforce of Trump critics is a non-governmental action, so a purged employee generally cannot rely upon the panoply of individual rights that protect us from illegal or arbitrary government acts. In most contexts an employer can fire an employee for almost any reason (or for no reason at all), which makes it almost impossible to trace a chain of causation from the regulatory extortion to the firing of an employee.
Perhaps worst of all, the effects of regulatory extortion will be more pervasive than malign prosecutions. A malign prosecution targets only one or a few individuals. But with a single company email, the CEO of an Amazon or Walmart can oppress the dissent of millions of workers, and those who do not comply can be deprived of their livelihoods, immediately, and without much in the way of due process protections.
With regulatory extortion becoming the accepted norm, the implicit message from Trump to private employers will be, “Get control of the ‘bad people’ in your organization.” And the message from private employers to their workers will be: “If you want to have a good career, if you want to keep your job, if you want to have a paycheck to feed your family, you need to STFU and stop criticizing The Dearest Donald.”
Just to let you know, you are one of my favorite legal experts.
Thanks so much!
Brought tears to my 84-year-old eyes, I was a PD in New Orleans between 1980-1990, when I moved with my new wife to CA where she could make a decent high school math salary, since I was getting close to nothing in OIDP. Tried about a dozen death penalty cases - one twice because of a prosecution miscue.
I always had the client's interest uppermost in my mind and had to go to some lengths to make sure it was apparent to others on the other side, who were not always so gracious. The "rule of law" was pretty much, "let's move this along, Counsel" or "quit wastin' mah time". The prosecution was less than generous with discovery - I had a several death cases with that issue, and the reviewing judge (on writs post trial) held that it was "harmless error" (prosecution did not disclose a witness to the shooting). So I knew what it was like to be behind the eight-ball.
I know and have empathy for those lawyers. To me, they are the dike between us and a certain form of perdition born of selfishness, uncaring and lord-it-overism in certain government people who think their s--- doesn't stink.
Thank you for the overture.
Thanks for reading!
Liz, what a rallying call to all Public Defenders, professionals and all general citizens! Your commitment to justice, compassion, equality is boundless and addictive! I'm continuing to rally with you! ❤️
(Liz is my niece.)
Thanks, Jane!
Very well said.
Liz you would make a great attorney general you are awesome
Thanks! I am available to serve :)
I enjoyed reading your article
Great article, reminding us of the vital role public defenders fulfill in our justice system.
For good reason, we are concerned about how Trump and his lackeys are abusing our criminal justice system to quash dissent.
But I’m actually more concerned with how Trump deploys what I call “regulatory extortion” to enforce his brand of political correctness on corporations and institutions—and their employees. My concern is that Trump will use explicit or implicit threats of adverse regulatory actions or promises of favorable regulatory actions to incentivize private employers to purge their own workforces of anti-Trump voices.
The message to corporations and other non-governmental employers is: “If you don’t want to have a rough time, or if you want to have an easy time, getting regulatory approvals or defending against regulatory investigations, it would be wise not to employ ‘bad people’ (i.e., Trump critics).” Using regulatory extortion allows Trump to claim that his administration had “nothing to do” with a private employer’s decision to purge its workforce of Trump critics. For example, when ABC’s suspended Jimmy Kimmel, NextStar, a major owner of ABC affiliates, was seeking FCC approval to purchase more ABC affiliate stations. Apparently to appease Trump’s FCC, whose chairman had openly attacked Kimmel, NextStar announced its affiliated stations would no longer carry Kimmel’s show, a decision which would in turn have substantial negative effect on ABC’s business. ABC quickly felt this pressure and canned Kimmel. Trump’s press secretary would later claim it had “nothing to do with” Kimmel’s suspension, but was “pleased” that ABC decided to get rid of him.
It is exceedingly difficult to win a judicial reversal of a regulatory agency decision, since the standard of review (for now, at least, notwithstanding the death of Chevron) is that the party challenging an agency’s action must show the agency decision was “arbitrary and capricious,” which is a high wall for a defendant to surmount. (Contrast that with the standard of proof in a criminal trial where the government prevails only by proving guilt beyond a reasonable doubt.) So rather than spending millions in a fight it probably can’t win, most private employers will avoid doing anything to draw Trump’s ire. And many private employers, to grease the wheels on regulatory matters, will affirmatively seek to demonstrate that they support Trump’s political agenda.
Regulatory extortion is also more insidious than malignant prosecutions, since a private employer’s decision to purge its workforce of Trump critics is a non-governmental action, so a purged employee generally cannot rely upon the panoply of individual rights that protect us from illegal or arbitrary government acts. In most contexts an employer can fire an employee for almost any reason (or for no reason at all), which makes it almost impossible to trace a chain of causation from the regulatory extortion to the firing of an employee.
Perhaps worst of all, the effects of regulatory extortion will be more pervasive than malign prosecutions. A malign prosecution targets only one or a few individuals. But with a single company email, the CEO of an Amazon or Walmart can oppress the dissent of millions of workers, and those who do not comply can be deprived of their livelihoods, immediately, and without much in the way of due process protections.
With regulatory extortion becoming the accepted norm, the implicit message from Trump to private employers will be, “Get control of the ‘bad people’ in your organization.” And the message from private employers to their workers will be: “If you want to have a good career, if you want to keep your job, if you want to have a paycheck to feed your family, you need to STFU and stop criticizing The Dearest Donald.”
Liz, if we have learned anything under Trump is that the rule of law is at risk. With every new federal mobilization of the national guard in our cities I see the writing on the wall as we head closer and closer to authoritarianism. Trump is following Hitler’s playbook and we are not inching towards kristalnacht anymore. We are racing towards it, and I’m sure Trump and bondi and noem and miller and Vance are going to try and get us there before the midterm elections. Once Trump declares martial law it’s game over. I think public defenders don’t have time to make a difference. I think judges are scared. There have been threats against judges and their families w pizza deliveries. Congress has enabled Trump and abdicated their power. It’s really hard not to believe we are inches away from game over. And I pray to God I have never been more wrong. If this shutdown co tinies and he gets away with depriving food to 42 million snap recipients no one is going to care about the rule of law when they can’t feed their children. Thats when riots are going to start. And that’s when martial law becomes reality.
Great article, reminding us of the vital role public defenders fulfill in our justice system.
For good reason, we are concerned about how Trump and his lackeys are abusing our criminal justice system to quash dissent.
But I’m actually more concerned with how Trump deploys what I call “regulatory extortion” to enforce his brand of political correctness on corporations and institutions—and their employees. My concern is that Trump will use explicit or implicit threats of adverse regulatory actions or promises of favorable regulatory actions to incentivize private employers to purge their own workforces of anti-Trump voices.
The message to corporations and other non-governmental employers is: “If you don’t want to have a rough time, or if you want to have an easy time, getting regulatory approvals or defending against regulatory investigations, it would be wise not to employ “bad people” (i.e., Trump critics). Using regulatory extortion allows Trump to claim that his administration had “nothing to do” with a private employer’s decision to purge its workforce of Trump critics. For example, when ABC’s suspended Jimmy Kimmel, NextStar, a major owner of ABC affiliates, was seeking FCC approval to purchase more ABC affiliate stations. Apparently to appease Trump’s FCC, whose chairman had openly attacked Kimmel, NextStar announced its affiliated stations would no longer carry Kimmel’s show, a decision which would in turn have substantial negative effect on ABC’s business. ABC quickly felt this pressure and canned Kimmel. Trump’s press secretary would later claim it had “nothing to do with” Kimmel’s suspension, but was “pleased” that ABC decided to get rid of him.
It is exceedingly difficult to win a judicial reversal of a regulatory agency decision, since the standard of review (for now, at least, notwithstanding the death of Chevron) is that the party challenging an agency’s action must show the agency decision was “arbitrary and capricious,” which is a high wall for a defendant to surmount. (Contrast that with the standard of proof in a criminal trial where the government prevails only by proving guilt beyond a reasonable doubt.) So rather than spending millions in a fight it probably can’t win, most private employers will avoid doing anything to draw Trump’s ire. And many private employers, to grease the wheels on regulatory matters, will affirmatively seek to demonstrate that they support Trump’s political agenda.
Regulatory extortion is also more insidious than malignant prosecutions, since a private employer’s decision to purge its workforce of Trump critics is a non-governmental action, so a purged employee generally cannot rely upon the panoply of individual rights that protect us from illegal or arbitrary government acts. In most contexts an employer can fire an employee for almost any reason (or for no reason at all), which makes it almost impossible to trace a chain of causation from the regulatory extortion to the firing of an employee.
Perhaps worst of all, the effects of regulatory extortion will be more pervasive than malign prosecutions. A malign prosecution targets only one or a few individuals. But with a single company email, the CEO of an Amazon or Walmart can oppress the dissent of millions of workers, and those who do not comply can be deprived of their livelihoods, immediately, and without much in the way of due process protections.
With regulatory extortion becoming the accepted norm, the implicit message from Trump to private employers will be, “Get control of the ‘bad people’ in your organization.” And the message from private employers to their workers will be: “If you want to have a good career, if you want to keep your job, if you want to have a paycheck to feed your family, you need to STFU and stop criticizing The Dearest Donald.”
Also Liz, I give judges more weight than you seem to.
Good Luck, I doubt it.
https://www.nj.com/politics/2025/11/is-democracy-dying-under-trump-new-analysis-reveals-sobering-results.html?utm_source=facebook&utm_content=nj_facebook_nj&fbclid=IwZXh0bgNhZW0CMTEAAR6IWKgQkZE01J0EW3bUPePF8EG8NNcaFdjhYXFhRlG0mgfHlr7nfapINK78bw_aem_IsBhVC0uojGPBXA4eogMFQ
Sorry... wrong Brett