Mike Lee: The Adversarial Legal System Is the Safeguard to Liberty

 Sen. Mike Lee (R-UT) stressed the need to protect adversarial procedure in the American justice system, saying, “If the adversarial system doesn’t work, you will lose your rights, you will lose your liberty, potentially culminating in a full loss of life, liberty, and/or property.”

The adversarial system is the one that presumes innocence and requires both sides of a lawsuit to conduct their own investigations, bring witnesses, affords the ability for cross-examination, and safeguards defendants against government bias.

Lee was addressing the Federalist Society’s 2022 National Lawyers Convention in the nation’s capital, warning of an increasingly powerful government and its potential to crush the liberties of the American people.

“We neglect the fact that [government] is just force,” he said. “Government is force, and like fire, it’s dangerous and it has to be controlled — should never be trusted.”

The adversarial system “is itself absolutely essential to safeguarding our individual liberties, because if, after all, you get hauled in by this entity whose sole purpose … is to exert force on you — to coerce you into doing or not doing a particular thing — if you don’t have adequate representation, the adversarial system won’t work,” he argued. “If the adversarial system doesn’t work, you will lose your rights, you will lose your liberty, potentially culminating in a full loss of life, liberty, and/or property.”

The adversarial system is contingent upon both plaintiffs and defendants having strong legal counsel — a point of contention brought up several times during the three-day convention, as lawyer intimidation for unpopular clients and the refusal of law firms to represent them is a growing trend, particularly for conservative clients.

“We’ve seen enormous pressure brought to bear on another number of institutions, including and especially our profession, where you’ve seen some prominent law firms, including some in this town, doing everything they can to shun certain clients,” Lee said. “Doing everything they can, in some circumstances, even to shun outstanding, remarkable lawyers, based solely on their prior employment experience, including many who worked in the Trump administration.”

The push to diminish the freedoms of speech and association from the left is a chief contributor to the degradation of the adversarial system.

Supreme Court Justice Samuel Alito, Lee explained, said, “Something bad happens when we can’t tolerate speech, when we can’t tolerate views that differ from our own.”

Alito “characterized speech on college campuses as being in an abysmal state. He went on to say freedom of speech is essential,” Lee continued, arguing that “colleges and universities should be setting an example in law, and law schools should be setting an example, because the adversarial system is set up so that the best way to get at the truth is to have strong opposing views.”

That requires lawyers being willing to put their personal views aside in order to provide the most robust representation for their clients — no matter if they are accused or murder, rape, or any other abhorrent thing.

“To be able to do that, we’ve got to be willing to represent the unpopular client, even when it’s difficult, even in many circumstances when it might be an unpopular client with which we might strongly disagree,” he said. “That’s what we signed up for, as lawyers, as officers of the court, and as people who claim allegiance to our constitutional system of government.”

The adversarial system is needed now more than ever, as “We see the excessive accumulation of power in the hands of a few within the government,” Lee said.

“We have seen the American people be deceived as to the meaning and purpose of government,” he continued. “We have been asked to treat government as if it were some sort of omnipotent, omniscient force: an entity that will know what is just and true at any moment and always do that thing.”

“We’re asked to create an almost supernatural relationship with it — one in which we assume that it is right, even when many expect us not to criticize it,” Lee added.

The Utah Republican described governmental abuse, particularly during coronavirus, explaining that that the First Amendment right to freely associate was the most violated right by the government during coronavirus, granting it the ability to violate “all of our other rights.”

Department of Justice crackdowns on parents and the Biden administration’s political enemies necessitate a robust adversarial system in order for justice to be served, as the power dynamic grows ever in favor of the government.