By Maggie Hagen, J.D. ’22
“How can we prevent our democracy from sliding into authoritarianism?”
This question was presented to students at the beginning of our seminar for the Democracy and the Rule of Law Clinic, a clinical partnership with the nonpartisan nonprofit organization Protect Democracy designed to familiarize students with the tools to safeguard the key features of a democratic society. After watching the Insurrection on January 6, 2021, I was keenly aware of this critical moment in our democracy.
I came to law school inspired by the great litigators of history, those whose work in the law helped combat legal segregation, sex discrimination, and voter suppression laws. Each advancement furthering the full participation and protection of diverse people in this country. But my inspiration was not naivety. Since beginning law school in 2019, I have seen many of those advances in democracy be challenged, and in some cases, dismantled before my eyes. But rather than be consumed by hopelessness, I jumped at the opportunity to participate in this increasingly relevant clinic. I needed to find inspiration in the work of lawyers today who are singularly focused on combating authoritarianism and promoting democratic principles. Through my time in the clinic, I came to see that litigation is one of many tools lawyers can employ to ensure accountability and truthfulness from our government and its leaders.
When I joined the clinic, I was fortunate enough to work on two cases designed to hold the government accountable for its unlawful actions against U.S. citizens, in addition to being able to spearhead my own research project on state secretaries of state and their discretion to alter election laws.
The first case was on behalf of Lt. Col. Alexander Vindman, a decorated combat veteran who testified before Congress during President Trump’s first impeachment. Protect Democracy, along with Altshuler Berzon LLP, filed suit on behalf of Lt. Col. Vindman, alleging a campaign of witness intimidation and retaliation for testifying. The suit itself brought claims under the Ku Klux Klan Act, a statute passed by Congress in 1871 that imposes civil and criminal liability on people who conspire to use “force, intimidation, or threat” to deter others from performing their democratic duties, such as offering testimony in federal proceedings.
By the time I joined the clinic, Protect Democracy was already at work putting together the lawsuit to hold these individuals accountable for their undemocratic actions attempting to interfere with constitutionally mandated impeachment procedures. I quickly got acclimated to the team of attorneys working on this litigation, and I was able to provide legal research, participate in strategy discussions, and contribute my questions and comments to the team as an equal.
It was incredibly invigorating to be in an environment where my questions and opinions were valued and listened to. I was able to challenge myself by researching areas of the law with which I was unfamiliar, adapting arguments to new contexts, and navigating the weight of such an important case with real-world implications. I got to see behind-the-scenes of a high profile case, and was able to collaborate with lawyers to develop our arguments. In addition, I learned that communications and narrative were just as important as having a handle on the law. I came to understand that it was not only important to allege that a specific law has been broken, but also make the argument that our core democratic principles and values have been violated. In a democracy, there is inherent value in knowing the truth. Our elected leaders must be accountable to their oaths of office and the ideals they uphold.
The second case involved Reverend Kaji Douša, a minister whom the Department of Homeland Security (DHS) targeted in a surveillance operation – dubbed “Operation Secure Line” – retaliation for her protected First Amendment activity. As part of her ministry, Rev. Douša provided pastoral services to migrants and refugees. She was also critical of the Trump Administration’s immigration policies. She crossed the southern border to Mexico in 2018 to provide pastoral care and humanitarian assistance to migrants there, and on return found that her Trusted Traveler Program clearance had been revoked. During the litigation, the government provided sworn declarations that it had never retaliated against Rev. Douša by revoking clearance for expedited border crossing. Discovery, however, uncovered documents that indicated otherwise. It was around this time that I joined the clinic, and was able to jump in right away to conduct legal research to bolster the argument that DHS needed to be sanctioned for false and misleading testimony regarding the revocation of Rev. Douša’s clearance.
This case opened my eyes to how serious it is that a government agency was surveilling U.S. citizens for observing their constitutionally-protected rights to practice their religion and voice their political views. I also learned how the bureaucracy of a large federal agency can be a shield with which to hide information that the public has a right to know. While the case is still ongoing, I was thankful to have been a part of it.
Finally, in addition to the litigation I assisted with, I was also given the freedom to pursue a research project analyzing the statutory discretion and restraints afforded to state secretaries of state. Following the 2020 election, I saw how much our democracy depends on local election officials who have significant power to alter election outcomes with little to no consequence for abusing that power. Protect Democracy tasked me with reading state laws, election manuals, and any other sources of information to get a close-up look at the systems in place to ensure election officials are following the law and not unjustifiably blocking voters from voting or votes from being counted. The project continues today, and the information will be useful to have on hand as we enter the upcoming election cycle.
In all, this clinic helped me realize how much work goes into litigation that serves the dual purpose of fighting for both a positive outcome for a client and the viability of democracy itself. If the government and its actors cannot be held accountable to the people through the law, then we have lost our ability to function as a democracy. In addition to litigation, research projects and other forms of advocacy are essential to being prepared for future attacks on our democratic principles and institutions. All of these tactics may be employed by lawyers to ensure the laws that are essential to our country are being upheld. I have a long way to go in my journey to becoming a litigator like those who inspired me to practice law, but I was grateful to learn under the litigators of today who are doing the vital work to protect our democracy.