This Article examines the role of lawyers in the ascent of American autocracy. It analyzes that role in relation to the development and innovation of the autocratic legal playbook: the repertoire of tactics for mobilizing law to degrade democracy. The central aim is to show how the playbook has been used by lawyers to weaken institutions that constrain the executive and to explore what this means for resistance at home and the future of democracy around the world. The Article places the American case in comparative context, illuminating how institutional attacks are channeled through executive action that bends existing law to test its boundaries, requiring lawyers to authorize and defend legal change that compromises their independence. Doing so spotlights the process of professional capture, achieved by controlling government lawyers and neutralizing their private sector counterparts, as a crucial gateway to wider attacks on other institutions: the courts, bureaucracy, universities, civil society, and media. The playbook directs these attacks toward the ultimate autocratic objective—controlling the authority to define law and thereby avoid legal accountability. Tracing American autocratization to fractures in the conservative legal movement during the first Trump administration, the Article uses evidence from the second administration to analyze the playbook’s operating principles and applied tactics. This analysis reveals common moves by executive branch lawyers to effectuate institutional targeting premised on inverting empirical reality to manufacture legal authority for the exercise of extraordinary power. The Article concludes by considering how lawyers inside and outside of government can help to reverse engineer the playbook, drawing on critical lessons of how democracies have died—and been resuscitated—in other countries to outline steps for strengthening the independence of the legal profession and protecting the rule of law in perilous times.
About the Author
Robert Henigson Professor of Legal Ethics and Founding Director of the Program on Legal Ethics and Democracy, UCLA School of Law; Visiting Fellow, European University Institute and Scuola Normale Superiore, Florence, Italy. This research was funded by a 2023 Guggenheim Fellowship. I am grateful for essential feedback from colleagues and students at the American Society for Legal History Roundtable, Amsterdam Centre for European Law and Governance, Amsterdam Centre on the Legal Profession and Access to Justice, European University Institute, Georgetown University Law Center, German Bar Association, Gonzaga Law School, Leeds University School of Law, Maurice A. Deane School of Law at Hofstra University, Max Planck Institute, Norwegian Centre for Human Rights, Oñati International Institute for the Sociology of Law, Pontificia Universidad Católica del Perú, Promise Institute Europe, Scuola Normale Superiore, UC Irvine School of Law, University of Milan, University of the Pacific McGeorge School of Law, and University of Wisconsin. Special thanks to Federico Alagna, Susan Bartie, Alex Batesmith, Gráinne de Búrca, Tamara Butter, Manuela Caiani, Başak Çalı, Pola Cebulak, Gaëtan Cliquennois, Iris van Domselaar, Ingrid Eagly, Blake Emerson, Dan Farbman, Lilla Farkas, Jody Freeman, Michael Frisch, Marie-Amélie George, Niels Graaf, Gábor Halmai, Kathryn Hendley, Matthias Kilian, Claire Kilpatrick, Karolina Kocemba, Helen Kruuse, David Luban, Mikael Madsen, Kate McIntosh, Carrie Menkel-Meadow, Richard Moorhead, Mary-Beth Moylan, Alexandra Natapoff, Deborah Pearlstein, Nicolas Petit, Felipe Luciano Pires, Donatella della Porta, Venera Protopapa, Fernando Del Mastro Puccio, Barbara Randazzo, Mitt Regan, Amnon Reichman, Nina Reiners, Lauren Rikleen, Benjamin van Rooij, Tanina Rostain, Joanne Scott, Hilary Sommerlad, Ann Southworth, Michał Stambulski, Ágota Szentes, Giacomo Tagiuri, Antoine Vauchez, Eli Wald, David Wilkins, Ellen Yaroshefsky, and Noah Zatz. I benefited from outstanding research assistance from Danielle Dosch and Mark McGuire, and superior support from the UCLA Law Library staff, especially Elyse Meyers. I could not have completed this work without the extraordinary effort of the entire UCLA Law Review team, to whom I am especially indebted.
