The Choices Lawyers Make
How they have shaped and will determine the outcome of Trump's attack on law firms
Two days ago President Trump issued another executive order (EO) targeting yet another major law firm, in this instance Jenner & Block, for “conduct detrimental to critical American interests.” Like the ones directed at Perkins Coie and Paul Weiss, the order both vaguely characterizes the “harmful activity” of the firm and names a lawyer, no longer with the firm, who aroused Trump’s ire (Trump names the lawyer in a "fact sheet” accompanying the Perkins order). The villain in this new order is Andrew Weissmann whose alleged history of “unethical” and “dishonest” conduct includes “engaging in partisan prosecution as part of Robert Mueller’s entirely unjustified investigation” into ties between the 2016 Trump presidential campaign and the Russian government.
The Jenner & Block order follows a presidential memorandum, issued subsequent to the Paul Weiss agreement, on the topic of “Preventing Abuses of the Legal System and the Federal Court.” Like the others, read together with the accompanying fact sheets, this memorandum takes action in part in apparent retaliation against a lawyer objectionable to the president, Marc Elias, who is cited in this case as an “example[ ] of grossly unethical misconduct [that is] far too common.”
But the Elias law firm is not a global or “Big Law” firm. It is “focused on representing the Democratic Party, Democratic campaigns, nonprofit organizations, and individuals committed to securing a progressive future.” Its practice is not dependent on security clearances or government contracts that the federal government can threaten to withdraw or terminate to damage the firm’s practice. This memorandum accordingly pivots from the derogatory reference to Elias to an instruction to the attorney general to monitor and take action against any and all law firms (presumably including Elias’s) whose behavior “in Federal court or before any component of the Federal Government appears to violate professional conduct rules.” Trump directs the attorney general to seek sanctions against “frivolous, unreasonable, and vexatious litigation against the United States” or in matters before its departments and agencies.
In sum, the assault on firms by executive action began with the order concerned with Covington & Burling’s representation of Jack Smith, stripping security clearances from those involved with his representation while he served as special counsel (pending review of their conduct), and calling for terminating the federal government’s “engagement” with the firm and agency review of any contracts with the government the firm may have; progressed to more comprehensive sanctions aimed at “global” and “Big Law” firms; and now includes Department of Justice monitoring of “unethical conduct” by all firms.
It is a full program, and it will continue. The Jenner & Block EO opens with the presidential declaration that “My Administration is committed to addressing the significant risks associated with law firms, particularly so-called ‘Big Law’ firms.” So far, this commitment has been marked by one setback for the administration—the temporary restraining order issued in the Perkins case—and one major success in the form of the agreement with Paul Weiss. But Trump has indicated that more victories for the administration are imminent: “[The law firms are] just saying, ‘Where do I sign? Where do I sign?’ … Nobody can believe it.”
What conclusions may be drawn to this point from what the administration has done in its attack on what Trump has called “the significant risks and egregious conduct associated with law firms”?
First, this is not a serious legal initiative to expand executive power in any formal, lasting sense. These actions cannot have been issued with any confidence on the part of lawyers that the administration could successfully defend them in court. The patent defects identified by the district court in the Perkins case are built into the basic model. Its elements include evident personal retaliation, with actions taken against lawyers critical of the president (and most of the lawyers targeted most directly are no longer with the punished firms). The fatal First Amendment flaws are evident in the nature of the complaints against the firms themselves: that they have disagreed with the administration on the lawfulness of policies (“lawsuits against the Trump Administration”) or represent opposing political interests (“partisan representations to achieve political ends”).
And, in an echo from 2020, Trump’s tenacious insistence that the only elections he can lose are those that are rigged shows up in repeated references to elections allegedly threatened by these firms’ representation in election law and voting rights litigation.
Second, The EOs do not have the appearance of credible legal actions. They are woefully under-lawyered; they present like press releases, laced through with Trumpian rhetoric that he insisted on adding or whose addition he entrusted to aides who have mastered what passes for his voice. The Jenner & Block EO, like the Perkins and Paul Weiss orders, offers notable examples: Mueller’s “entirely unjustified investigation,” the “pursuit of nonexistent crimes,” and the use of epithets, such as “the unethical Andrew Weissmann.”
Third, given the thoroughly deficient legal basis for these actions, they are fairly clearly an exercise in abusing the legal process to inflict harm on administration enemies and warning others not to cross this president. The goal is to achieve the immediate effects, before the courts can finally resolve the issues, of damaging the firms. The firms so far unaffected, watching nervously from the sidelines, can decide for themselves how much risk they are preparing to take in the clients they accept and the cases they file. Press reports suggest that many have concluded that they should keep their heads down or, in the face of danger, be ready to negotiate themselves out of harm’s way like Paul Weiss did.
Fourth, given the absence of a legal basis for these executive actions or any evidence of serious legal craftsmanship in their preparation, the question of the role of lawyers in this administration is once again front and center. As Jack has written, the president and close aides believe lawyers were roadblocks in Trump 1.0 and “[t]he solution [in Trump 2.0] has been to find lawyers who will tell the president what he wants to hear so that he can do what he wants.” Part of this solution has been to place Trump’s former personal lawyers in the highest legal positions in the Department of Justice and the White House. And in the recent negotiation with Paul Weiss, current personal counsel to Trump and his family played key roles. The ethics advisor to the Trump Organization, Bill Burck of the firm of Quinn Emanuel, reportedly assisted in brokering the deal with Paul Weiss. Robert Giuffra, the co-chair of the firm of Sullivan & Cromwell, which represents Trump in his appeal from his New York criminal conviction, participated in the Oval Office negotiations between the president and Paul Weiss firm chair Brad Karp. Personal loyalties and connections clearly bolster the president’s belief that he now has the right and dependable lawyers in place for this second term.
It is telling that when Trump spoke at the Department of Justice, the historic role of a department that is “independent” in critical respects received no mention. But the attorney general expressed her view that Donald Trump was the greatest president in the history of the country, and that it was an honor for her to work at his “directive.” Now one of those directives is that she should monitor and take action as necessary to sanction lawyers for “unethical” representations in opposition to this administration’s policies and programs. Lawyers litigating with the government now know that they face not merely opposition on the merits of their claims, but claims that their positions were sufficiently “unreasonable” or “frivolous” that they should face disciplinary action or unspecified “additional steps” to hold them accountable.
Finally, there are good reasons why “Big Law” or “global law firms,” as the administration has described them, are the primary targets in these attacks on firms. They represent one powerful wing of despised establishment elites that Trump has marked out for special derision in his brand of politics. Their formidable resources, when mobilized in a manner contrary to administration aims, pose a serious threat to the achievement of its aims. But they are also multi-billion-dollar businesses with vast sums of money at stake in this conflict and, as Trump gloated in the wake of the agreement with Paul Weiss, are filled with “very sophisticated people” who are open to a deal. It is these firms that are most vulnerable to protecting their business against loss and prioritizing these economic losses over more intangible injury to their professional values and identity. Paul Weiss has contended in response to criticisms that at stake in the confrontation with the administration was the firm’s very survival. But it seems from the reporting that the survival in question was of a particular kind: as a big law firm with revenues on the order of $2.6 billion. Paul Weiss feared other firms’ poaching of lucrative practices in a firm that “relies increasingly on keeping those highly paid corporate lawyers happy and bringing in business.”
This a reasonable business judgment; it weighed decisively in favor of cutting a deal with the Trump administration. But it overrode countervailing professional considerations as significant as protecting the firm’s independence from government interference in its management—in hiring and in the choice of the clients it will represent. And its move was a fateful one for law as a profession, if not for big law as a business, if other firms follow suit and ask “Where do I sign? Where do I sign?”