Access to The Champion archive is one of many exclusive member benefits. It’s normally restricted to just NACDL members. However, this content, and others like it, is available to everyone in order to educate the public on why criminal justice reform is a necessity.
As criminal defense lawyers, we know justice does not just happen. Justice only survives if people are willing to protect it courageously in difficult times.
Now is one of those times. This is not a time of ordinary political disagreement but of deliberate attacks on our system of justice. We witness daily efforts to bend law enforcement and prosecutorial discretion to serve not justice but to advance political goals, undermine institutional legitimacy, and shield the powerful from accountability.
This is a stress test on the rule of law itself. This is a time during which criminal defense lawyers in general, and NACDL in particular, must hold the line.
The January 6 insurrection marked a turning point. While it showed, as a “symptom,” a physical attack on Congress, it came from an underlying “disease” of an assault on constitutional order. This assault has been fueled by a campaign of deliberate disinformation and abetted by a sustained campaign to discredit the judiciary, the Department of Justice, and the electoral process. It showed our system relies on fundamental norms and how fragile our system is when those norms are tossed aside.
That was the beginning, but this danger is escalating. Calls for political “retribution” through criminal prosecution. The pardon power used to reward loyalists and obstruct investigations. Most recently, we’ve seen the indictment of former FBI Director James Comey, a move widely viewed as politically motivated and retaliatory. These actions raise urgent concerns about whether our legal system is being used as a tool to settle scores, target enemies, and protect allies.
NACDL is taking action. We do so not as a partisan body but because we know — from what we do every day — there are principles that need to be upheld. This is not about who is in office. It is about ensuring power is not abused and the institutions designed to check abuses are still functioning. Here are some steps we are taking:
1. Stand Against the Weaponization of the Pardon Power
NACDL has long advocated for clemency and reform of the overly punitive federal system. The power to pardon exists to check abuses, and we must call out when that power is abused to protect political allies and obstruct investigations.
At our fall meeting in Washington, we presented former pardon lawyer Liz Oyer a Champion of Justice Award for her courage and determination in the face of perceived injustice in this area. Liz’s work showed how this process should function — in a thoughtful and principled fashion.
NACDL advocates for structural reforms that bring greater transparency, accountability, and fairness to the clemency process, which includes supporting efforts to move clemency review out of the Department of Justice and into an independent, nonpartisan review board.
2. Speak Out for Prosecutorial Independence and Institutional Integrity
The prosecution of James Comey, which came after multiple prior reviews found charges were not warranted, is a chilling example of what happens when law enforcement is turned inward against former officials for political purposes. This is vengeance disguised as law.
People should not be targeted because they are whistleblowers, journalists, protestors, or former government officials. Defense lawyers must be prepared to identify and challenge politically motivated prosecutions at every level of government.
NACDL will not remain silent in the face of these actions. We will continue to speak out when prosecutorial power is misused. We will do so both to protect the rights of the accused and to protect the integrity of the system itself. We know better than anyone the power that the government, law enforcement, and prosecutors can bring to bear on individuals.
3. Protect the Lawyers Who Defend the Constitution
Defense lawyers representing those accused in high-profile or politically sensitive cases are increasingly subject to threats, harassment, and reputational attacks. We have seen this before, and we will see it again.
NACDL will continue to support its members by offering legal assistance, public backing, and access to wellness and safety resources. No NACDL member will stand alone for doing the job the Constitution demands of them. NACDL’s Lawyers’ Assistance Strike Force stands ready to help any NACDL member who is threatened for fulfilling their role as counsel.
This Is Our Moment
History will judge how we responded in this era.
As defenders, we don’t swear an oath to any person or party. We swear to uphold the Constitution and seek justice for all. These responsibilities include representing — to the very best of our ability — the unpopular defendant, the targeted whistleblower, the former public official, and even those with whom we strongly disagree.
This is an uncomfortable moment. But — from John Adams zealously defending British soldiers accused of killing future-Americans through today — defense lawyers have never been meant to be comfortable. We are meant to stand in the breach and fight. Especially when the system itself is under attack.
NACDL will hold the line. As we always have. That is our duty. That is our promise.
About the Author
Andy Birrell is a Fellow of the American College of Trial Lawyers and a Fellow of the American Board of Criminal Lawyers. He represents clients in all phases of criminal law and related matters from grand jury investigations through trials and appeals in federal and state courts throughout the United States. Birrell is also a seasoned appellate lawyer, having argued before the United States Supreme Court and the United States Court of Appeals for the Eighth Circuit.
Andrew S. Birrell (NACDL Life Member)
Birrell Law Firm, PLLC
Minneapolis, Minnesota
612-238-1939
andy@birrell.law
https://www.birrellcriminaldefense.com
