Yale Law School professor Oona Hathaway wrote an especially revealing Guest Essay in the pages of the New York Times. By aiding the government’s exceptional indictment against a former U.S. president, she may have violated several laws; the American Bar Association (ABA) Model Rules of Professional Conduct; and the American Association of Law School (AALS) Statement on “Law Professors in the Discharge of Ethical and Professional Responsibilities.”

Hathaway’s essay demonstrates how extreme ideological fervor can make law professors “legally blind” to what the law actually says. However, Hathaway’s essay, which is but one of many such partisan essays by law professors, amounting to a form of public relations (e.g., this essay), should stop immediately.

What the professors themselves don’t generally appreciate is that they undermine their credibility and that of their institutions, and they violate the core principle of the legal system: objectivity. The concepts of objectivity and neutrality are as basic to law as thermodynamics is to engineering. Choosing sides in the pages of major mass media discards that principle and turns a professor into a political mercenary.

Some might argue that Hathaway and others merely demonstrate legal advocacy—but there is a vast difference between law professors who teach law principles in a classroom and lawyers who use those principles to advocate for a client in a courtroom. Regulations address both these functions, but law school professors struggle to maintain a necessary firewall between them or even to understand that academic freedom is intended for the academy.

Image: Yale Law School by Nick Allen. CC BY-SA 3.0.

As University of Nebraska professor David Moshman explained, “Academic freedom is the freedom to do academic work.” Writing in the pages of the New York Times is not academic work; it is public relations work, and with it comes other professional responsibilities that outweigh all others. The AALS Statement asserts that:

American law professors typically are members of two professions and need to comply with the requirements and standards of both. Law professors who practice law are subject to the law of professional ethics in force in the jurisdictions in which they are licensed to practice. In addition, as members of the teaching profession, all law faculty members are subject to the regulations of the institutions at which they teach and to professional guidelines that are more generally applicable, such as the Statement of Professional Ethics of the American Association of University Professors. This Statement does not diminish the significance of these other sources of ethical and professional conduct. Instead, it is intended to provide general guidance to law professors concerning ethical and professional standards because of the intrinsic importance of those standards and because law professors serve as important role models for law students. (Italics mine).

Some might argue that Hathaway and others are demonstrating rhetoric, which is a major part of law. To an extent, it is, but what exactly is rhetoric? To be rhetorical does not mean to be deceptive, mendacious, or even misleading. Rhetoric matters as an art of thinking coherently because, no matter how convincing a lawyer may believe she is, if the rhetorical device does not convey truth and accuracy to a judge or jury, then it generally fails to persuade or withstand appeal.

Hathaway’s argument in the Times is not meant to persuade but to influence—but not “influence” that educates or stimulates reason among general newspaper readers. Instead, her argument is meant to stop thinking and to be passively influenced. Hathaway does this, in part, by inference, with photos of closed, unverified document boxes stacked in unverified locations; and by association, by showing pictures of an unrelated party accused of a national security violation.

Mostly, Hathaway seems intent on building a narrative for sentencing. Her essay includes an image of Reality Winner posing as the Left’s apparent archetype of a rural “deplorable,” complete with barbed wire fencing, a dilapidated van, and a trailer in the background. Winner was convicted on charges involving secure documents in a national security setting and received a sentence exceeding 5 years for a single count. Ms. Hathaway suggests that Trump should receive a longer sentence for his 37 counts (31 under the “Espionage” Act).

As renowned criminal defense attorney Gerry Spence said, “Skepticism, not cleanliness, is next to godliness. Skepticism is the father of freedom. It is like the pry that holds open the door for truth to slip in.”

Perhaps the most central intellectual pillar of the entire legal trade, including teaching, is the concept of “Higher Duty.” What does this mean? The ABA (America Bar Association) gives the definition centrality in its Preamble: “A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.” Further:

As a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession. As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and work to strengthen legal education. In addition, a lawyer should further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority. A lawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest. 

Instead, Hathaway does the opposite, undermining public confidence in the law and in the judiciary, not only by misinterpreting what the law says but also by undermining the court system with a public legal argument that contaminates the core principles of law itself, including presumption, due process, evidence standards, and balancing, while officially endorsing publicly a dubious if not extra-legal indictment. Her essay appears crafted to influence judges by loading an effective amicus curia into public domain mass media, ahead of trial. As Yale and Harvard Law represent nine out of ten Supreme Court Justices (with a revolving door into their law schools, such as Justice Breyer at Harvard), the schools seemingly believe they’re a private channel to the judicial system.

The other key professional obligation that law professors undermine by such partisan (and intellectually immature) behavior involves their responsibilities in a larger university system. University of Chicago Nobel economist George J. Stigler addressed the problem in Academic Freedom and Responsibility, and it is especially relevant:

Professors believe they should be free to express their opinions and free of penalties for themselves and their institutions. That is asking quite a lot. If we could decrease our entanglement in contemporary policy issues, whether by anonymity or self-discipline, we would not invite the often-correct suspicion that professional knowledge was being used for partisan purposes. I hope for society’s sake that we become more professional in the use of our knowledge.

Hathaway’s essay ultimately appears to be an awkward effort by a law school professor to vicariously act out the role of a prosecution team member, but in so doing, political ideology overwhelms the rational poise necessary to act as a mature legal thinker, and thereby as a role model to law students. 

This highlights why defense doctrine is the natural posture for a law professor to take because it freezes speculation and sets the order of law as a priority.

Intriguingly, it’s law professors from the “elite” category of law schools such as Yale who demonstrate partisan activity. It would be unusual to find one of America’s trade-focused, regional law schools commenting publicly about, let alone encouraging faculty to aid and abet, such government legal irregularity.

This raises a fascinating question as to whether institutions such as Yale are actually law schools or whether they have become something else altogether, where politics is indulged as law, and law is celebrated and rewarded as radical political activism. In his famous 1960 Rosenthal Lecture given at Northwestern University, Law and its Compass, Lord Radcliffe stated that it is more important to decide what law is for, than what it is. The law academy often demonstrates to law students that both can be subordinated to ideology.

Matthew G. Andersson is a former CEO, law and policy writer, and the author of the upcoming book “Legally Blind” concerning how ideology affects law. He has been featured in the Wall Street Journal, the New York Times, the Financial Times, and has testified before the U.S. Senate. He is a graduate of the University of Chicago, and studied with White House National Security Advisor W.W. Rostow at the Johnson School of Public Affairs.