The Rule of Law is Our Business: Thoughts on Trump's Attack on Big Law

This is an essay written in anger. It’s an anger directed at some of the richest, most well connected, and most powerful attorneys in the United States. This essay mentions some attorneys who are wealthy and powerful heroes, but it will mostly focus on the craven capitulation of attorneys who are wealthy and powerful cowards. These cowards all lead major law firms which together make billions of dollars a year in profit. 

These lawyers have chosen to acquiesce to a president who won’t forgive them for previously employing or currently employing attorneys who did things that made him mad. They have the resources and connections to fight this president’s flagrantly illegal actions against their livelihood. They have a chance to stand up for the rule of law. They have chosen not to because it would temporarily interfere with the bottom line of their law firms.

My anger at these attorneys is largely self-interested. I’m also an attorney, but I don’t work at a Big Law firm representing wealthy corporate clients. I work at a nonprofit representing parents who have had their kids taken by CPS. I love my work. I love representing my clients. But I am able to do my job effectively because I work in a system where I can advocate for my clients in spite of their unpopularity. 

To do my work I need to be able to annoy, frustrate, and anger government power without fear of reprisal to my livelihood. The pathetic surrender of these incredibly well heeled attorneys to presidential bullying for doing what I do daily (annoying, frustrating, and angering the government) strikes at the heart of an essential feature of our system. A feature I rely on to pay my bills. 

My craven self-interest is candidly stated. These Big Law attorneys have been far less candid about theirs. But before getting to that, let’s look at exactly what has unfolded between the administration and these firms.

The executive orders

In the past month President Donald Trump has issued a raft of executive orders attacking various Big Law firms whose attorneys have personally wronged him. He is mad at Perkins Coie for representing “failed Presidential candidate Hilary Clinton”. He is furious that Paul, Weiss once employed “unethical attorney Mark Poermantz” who prosecuted Trump for paying a sex worker hush money in New York. He is apoplectic that Jenner & Block rehired “unethical Andrew Weisman” after his work with Robert Mueller’s investigation of the possibility of Trump campaign’s collusion with Russia in the 2016 election. And that’s nothing compared to WilmerHale, who hired Robert Mueller and his closest associates after they completed “one of the most partisan investigations in American history”, of Trump of course.

The executive orders also mention concerns about hiring discrimination, representing transgender clients, and representing illegal immigrants. That’s just right-wing window dressing. Paul, Weiss’ decision to preemptively scrub its firm web page of references to its pro bono work on immigration and LGBTQ rights did not stop Trump from issuing an executive order against them. Also, there is no mention of DEI in an earlier executive memorandum rescinding security clearance for all Covington & Burling attorneys and staff who “assisted former Special Counsel Jack Smith during his time as Special Counsel” in his work on the federal prosecution of Trump for his handling of classified documents and fomenting insurrection in January 6, 2021. This is despite Covington & Burling still trumpeting their commitment to DEI principles on their website. 

But the executive orders issued by Trump against these Big Law firms goes further than the memorandum against Covington & Burling. Rather than targeting particular attorneys, they strip the security clearance of all attorneys at the firm. This effectively guts their ability to practice law for some of the most lucrative clients of these firms. All of them represent large businesses that regularly contract with the federal government. Sometimes the clients are doing work that requires security clearance. For the attorneys to effectively advise their clients they need security clearance as well. By stripping firm attorneys of security clearance, they strip the firms of their ability to represent their clients.

The executive orders also punish these firms’ clients with federal government contracts merely for being clients of a disfavored firm. All the executive orders require executive branch agencies to have businesses they contract with disclose if they are represented by one of the disfavored firms. If these businesses disclose they are represented by a disfavored firm on any matter related to the contracts with the federal government, the relevant executive agency is authorized to terminate that contract “to the maximum extent permitted by applicable law”. And if this is not enough, the actions also bar attorneys from these firms from being admitted to federal buildings (whether this includes federal courthouses is unclear) or from seeking future employment in the executive branch.  

Discussing what the executive orders do specifically runs the risk of obscuring what they are doing generally. They are using the power of the presidency to punish law firms for the attorneys they hire, clients they select, and cases they take. They’re also punishing private citizens for the law firms they select. This loss is not based on the quality of the legal representation or persuasiveness of the arguments, but based on the fact the president does not like the firm because some of its current or former attorneys did things that made him mad.

These executive orders are designed to create an environment in which attorneys are incentivized to not make certain arguments for their clients’ interests. The attorneys are not thinking about whether an argument will persuade a judge or jury. Instead their first consideration has to be whether the legal argument they make will displease the President of the United States. At that point we give up on the idea of trying to be a nation of laws and become a nation of one man’s preferences.

Or as Perkins Coie’s managing partner, Bill Malley, put it in a public statement after filing a lawsuit against the Trump administration, “The [executive] order [against Perkins Coie] violates core constitutional rights, including the rights to free speech and due process. At the heart of the order is an unlawful attack on the freedom of all Americans to select counsel of their choice without fear of retribution or punishment from the government.” WilmerHale and Jenner & Block have also filed suits challenging these executive orders. Federal judges have granted the requests of all firms for temporary restraining orders stopping the implementation of the executive orders.

Capitulation

Other law firms have chosen capitulation over litigation. The first was Paul, Weiss. Its firm chairperson, attorney Brad Karp, met with Trump within days of Trump issuing the executive order against Paul, Weiss. This led to what both sides characterized as a “settlement” and Trump issuing a new executive order rescinding the prior one against Paul, Weiss. The Big Law firms Skadden, Milibank, and Willkie Farr have all since caved before Trump even issued an executive order against them.

Only three of the firms have attempted to explain their thinking to the attorneys who work for them. Paul, Weiss’ chairman Brad Karp, Skadden’s executive partner Jeremy London, and the executive committee for Willkie Farr have sent internal emails to their entire firm justifying their decision to capitulate to Trump’s threat to their livelihood. All three emails show more interest in continuing to profit off the legal system rather than fighting for the fundamental principles that make it work.

One of the most important things firm leadership wanted their attorneys to know is that the decision was not easy. Karp insisted there was “no right answer to the predicament in which we found ourselves”. London shared similar sentiments “the answer” on how to deal with an as yet non-existent executive order against Skadden “was not obvious.” The executive committee of Willkie Farr stated it was “an incredibly difficult decision”. All the emails assured the attorneys working at their firms that “[t]his agreement does not change who we are” (London), “[t]he core of who we are and what we stand for is and will remain unchanged” (Karp), and “the agreement does not require us to change course” (the executive committee of Willkie Farr).

So what are the core values that they considered when assessing how to handle real (or possible) executive orders threatening their business? Karp states he was guided by “[Paul, Weiss’] obligation to protect our clients’ interests” and “our fiduciary duty to all of you”. One might assume it would be in their client’s interests to know that they had a firm representing them that wasn’t afraid of government intimidation. Not so, according to Karp. What their clients value is knowing that Paul, Weiss is not “persona non grata” to the Trump administration. 

A closer review of the terms of the settlement reveals Paul, Weiss’ “fiduciary duty” extends only to current employees. But Paul, Weiss’ attorneys could be excused for wondering how firm that commitment is. Trump’s executive order rescinding its previous order stated “Paul[,] Weiss has acknowledged the wrongdoing of its former partner Mark Pomerantz” as part of their agreement. Karp doesn’t mention this part of the settlement in his firmwide email. Nor has he denied this was part of his negotiated deal with Trump. This can’t be a comfort to any attorney at Paul, Weiss who may go to bat for a client in a way Trump disapproves of. Paul, Weiss attorneys could understandably wonder if Karp’s vision of the “fiduciary duty” has its limits.

In his email to Skaddent attorneys, London initially states he considered “the significant commitments and responsibilities we have to our clients, our people, and to the broader communities and society we serve.” But when he actually describes what the deal he crafted with Trump, London says “it was the best path to protect our clients, our people, and our Firm.” So much for “the broader communities and society we serve.” 

Like Karp, London seems only capable of thinking in terms of transactional business relationships. Neither man shows any sense that the legal services they provide to their clients exist in the context of institutional norms that Trump’s executive orders undermine. 

The executive committee at Willkie Farr didn’t list any major values in its firm wide email, but merely said that following employment law, hiring ideologically diverse attorneys, and doing pro bono work were consistent with the values they had. They had no problem reaching an agreement with Trump on those terms. The idea of “the rule of law” is not  mentioned in this email, or in any of the others.

The pro bono bargains

But the pro bono agreements reached with the executive branch only highlight the problems of Big Law’s capitulation to Trump’s ire. All of the firms agreed to dedicate billable hours to pro bono work that pleased Trump. Per the second executive order removing Paul, Weiss from Trump’s attorney jail, Paul, Weiss agreed to dedicate $40 million to “assisting our Nation’s veterans, fairness in the justice system, and combating anti-Semitism” Skadden agreed to dedicate $100 million dollars “assisting veterans and other public servants, including members of the military, law enforcement, first responders and federal, state, and local government officials;ensuring fairness in our justice system;and combatting [sic] antisemitism.” Willkie Farr agreed to do $100 million worth of pro bono work for “veterans, Gold Star families and victims of religious discrimination.”

This may look like the President picking and choosing which pro bono issues a law firm can select. But Karp of Paul, Weiss took umbrage at this characterization. According to Karp “the Administration is not dictating what matters we take on, approving our matters, or anything like that.” While it’s true the Administration is not dictating all the firm’s pro bono work (valued at over $130 million dollars a year, per Karp), it is constraining what the firm can do for $40 million worth of pro bono work. The same constraints hold for the $100 million worth of pro bono work agreed to by the other firms. 

A simple hypothetical shows the hollowness of Karp’s assertion that Trump “is not dictating what matters we take on”. What if Paul, Weiss dedicated its $40 million worth of pro bono work to fighting a Trump executive order impacting trans veterans? Or immigrant veterans? Technically it is compliant with the terms of the agreement, but would Trump see it that way? Would Karp want to test it knowing Trump will gut their business if he disagrees? Would any of the other firms? 

Of course Trump won’t explicitly “dictate what matters [Paul, Weiss] takes on”. Nor will he do it for the other firms. He won’t need to. The law firms know how directing these millions of dollars could inspire Trump’s ire and they won’t go anywhere in that direction. They also are less likely to do it with the pro bono work they do outside of the terms of the agreement. 

These firms should be allowed to consider many factors in deciding how to select what pro bono matters it takes on, but “the President will get mad and bankrupt us” cannot be one of them. At least if we wish to remain a nation even aspiring to be ruled by laws rather than personal power.You don’t need to have gone to an Ivy League law school, or any law school, to understand these dynamics. Seeing The Godfather trilogy suffices.

Folding under pressure

All of the firms who have surrendered to executive pressure described being in a pressure cooker situation. London described it as “extraordinarily difficult”, the executive committee of Wilkie Farr described it as “threatening to imperil our clients’ rights and those of our Firm”, Karp described the executive order against Paul, Weiss as “an existential crisis”. Only Karp really unpacked what he meant: he said clients were considering retaining law firms favored by Trump and that other firms were poaching their attorneys (and by extension those attorney’s lucrative client portfolios). 

Regarding attorney poaching, it is worth noting that the heads of other Big Law firms deny they did this. It is also worth noting that Paul, Weiss itself has a prior history engaging in attorney poaching itself. But what is most important to note is that Karp gives no indication that part of his “existential crisis” involved asking, “Is our professional commitment to the rule of law consistent with capitulating to a clearly unconstitutional order from a president that is doing it because he is mad at one of our former attorney?” Karp only states he was thinking about his firm’s bottom line. While the emails sent to Skadden and Willkie Farr attorneys were not so unintentionally candid, it is fairly obvious that similar executive orders directed towards them would frustrate billable hour goals for Q2.

How these Big Law firms can be so certain that they have what Karp characterizes in his email as “a lasting settlement” with Trump is baffling, and not just because of Trump’s sketchy history with following through on agreements. It is also based on reading a recent presidential memorandum titled “Preventing Abuses of the Legal System and the Federal Court”. 

The memo opens with Trump directing bile at an attorney who wronged him (Marc Elias, for his involvement with the Steele Dossier suggesting the Trump campaign colluded with Russia) and followed by red meat for the right wing (against immigration attorneys). It then goes on to explain how the attorney general must strong arm all attorneys in federal court the way Trump strong armed Big Law attorneys. The attorney general is directed to file sanctions against attorneys bringing lawsuits against the government deemed “frivolous”. The attorney general must also file complaints against these attorneys with their state bar associations. And, of course, federal agencies are directed to terminate contracts with businesses who retain law firms who have filed lawsuits Trump deems “frivolous”. 

Obviously Big Law firms have the resources to fight this kind of thing, but smaller firms like immigration nonprofits do not. And the Big Law firms who caved to Trump to preserve their bottom line are not likely to provide small immigration nonprofits with pro bono support, for the obvious reason that legal actions defending attorneys who brought “frivolous” lawsuits are, by the transitive property, also “frivolous”. And many of these firms have shown they will not stand up to anything that would make their skittish clients and attorneys bolt.

What’s to be done about all of this is a hard question to answer. Adam Gurri recently suggested that state bars should change their rules so that if the heads of other law firms decide to cave to executive pressure, they can be disbarred for unethical practice of law. While I appreciate the spirit, the state-by-state solution of changing the rules of state bar associations will move slower than a problem which is moving quickly. 

The local small acts of resistance are more immediate. I am heartened by the young associates who are leaving Big Law firms in protest. I am also encouraged by young law school students from high ranking law schools who are committed to not working at the Big Law firms who have capitulated to Trump’s pressure. These are sacrifices that far more powerful, and far more wealthy, legal professionals have been unable to make. 

But these shards of hope don’t fill a void created by the betrayal of these Big Law firms to fundamental premises that make our system work. I had thought that most attorneys shared certain baseline commitments undergirding our workaday verbal gun slinging for our clients. I especially expected it from those who have the wealth and connections to fight for keeps. Some of them have, but more of them haven’t. The ones who have caved should be ashamed of themselves. But they won’t be. Their business isn’t the rule of law, if it ever was. Their business is the rule of billable goals for Q2.

Featured image is the bottom half of King Andrew the First