Big Law Must Stand Up to Trump

Paul, Weiss bent the knee - others must not follow

In recent weeks President Trump has focused his campaign of retribution and personal grievance on lawyers and the legal system. He has issued several Executive Orders meant to punish large corporate law firms – members of so-called “Big Law” – whose attorneys he believes have wronged him somehow. The firms’ responses have varied from challenging Trump in court to total capitulation. But the response of Big Law as a whole has been muted – and woefully inadequate.

These attacks make perfect sense for a president with authoritarian goals. Our three branches of government are designed to check and balance each others' exercises of power. Trump has already completely subdued the Republican-controlled legislative branch. Republican members of Congress have been content to stand by while Trump seizes their power and renders them largely irrelevant - that is, when they’re not busy confirming his dangerously unqualified Cabinet nominees.

That leaves the judicial branch and the legal system as possible checks on Trump. His goals here are obvious. If attorneys, law firms, and judges can be made to fear Trump’s retribution, they will be less likely to stand in the administration’s way. Planning to seize and deport immigrants with no due process, or shut down entire agencies with no legal authority? How much easier that will be if there are no lawyers who dare to challenge those actions in court, or if judges are afraid to rule against the administration.

Our Constitutional order is under attack. This is a “stand and be counted” moment. Large law firms and the legal profession as a whole need to join together to condemn these attacks and defend the legal system and rule of law. Large law firms in particular are extremely well-equipped to take on this fight. If they don’t, many more people are going to be hurt as the Trump administration continues to bulldoze its way through our institutions.

Beyond these moral and constitutional imperatives, these firms must recognize that their own bottom line is at stake. What made it possible for them and their clients to grow and prosper is the rule of law and a stable legal system and business environment that was the envy of the world. Big Law needs to start fighting back in a big way, before that system no longer exists.

Trump’s Attacks on Big Law

Trump’s assault on major law firms began with the leading D.C. firm of Covington & Burling. On February 25 Trump signed a memo revoking the security clearances of a handful of Covington attorneys. He also said he would cancel any government contracts with the firm, although it’s not clear they had any. The firm’s offense? Providing about $140,000 of pro bono legal representation to former special counsel Jack Smith, who is being investigated by both Congress and the Trump Justice Department for simply doing his job. Trump’s action also came less than a week after Covington and several civil rights groups filed a lawsuit challenging the constitutionality of Trump’s anti-DEI and LGBTQ+ Executive Orders.

This order was an attack on the very foundation of our legal system. Every attorney understands the bedrock principle that every person is entitled to representation - especially unpopular clients. Good attorneys accept the willingness to provide such representations as an ethical duty and a fundamental norm of the practice of law. And Jack Smith has done absolutely nothing wrong, except in the eyes of Trump and his MAGA supporters.

Members of the public may sometimes criticize attorneys who defend a notorious murderer or take on other unpopular cases. But the principle that everyone is entitled to a defense is not a controversial one within the legal profession. The idea that the president of the United States would punish an attorney or a firm based on whom they represent was previously unthinkable.

Covington’s response to Trump’s order was fairly muted, The firm issued a brief statement defending its representation of Smith. A few bar association groups condemned Trump’s order. But the legal profession as a whole was relatively quiet, especially other Big Law firms. Covington has not filed a lawsuit challenging Trump’s order, and has continued to represent plaintiffs challenging actions by the Trump administration.

Perhaps encouraged by the relative lack of pushback from the profession, Trump struck next at Perkins, Coie, a Seattle-based international law firm. Trump is unhappy with that firm primarily because of its work for the Hillary Clinton campaign, including hiring Fusion GPS, the company that created the infamous “Russia dossier.” On March 6 Trump issued an Executive Order targeting Perkins, Coie. This one went much further: among other things, it revoked the security clearances of everyone at the firm, canceled any government contracts with the firm and prohibited new ones, directed agencies to bar the firm’s employees from federal buildings, and directed the EEOC and Attorney General to investigate the firm for possible discrimination based on its DEI policies.

Perkins, Coie reacted very differently from Covington: they immediately announced they would fight the order and filed suit. They are represented by Williams and Connolly, a storied and powerful D.C. firm that deserves a lot of credit for taking the case. Federal District Judge Beryl Howell granted a preliminary injunction preventing enforcement of Trump’s order, finding that it was meant to punish the firm and was likely unconstitutional. She called it an assault on the legal profession and said it sent “chills down [her] spine.”

Undaunted, a week later Trump targeted the New York based mega-firm Paul, Weiss with an order very similar to the Perkins, Coie one. Trump is particularly angry about the actions of Paul, Weiss partner Mark Pomerantz, who took a leave of absence from the firm to work on the New York state criminal investigation that ultimately led to Trump’s convictions for concealing hush money payments. He also singled out the firm’s work on a pro bono lawsuit brought against January 6 Capitol rioters, and the firm’s DEI policies.

Rather than fight the order, Paul, Weiss chairman Brad Karp quickly met with Trump and struck a deal. The firm agreed to cancel all DEI activities and policies and to provide the Trump administration with $40 million in pro bono legal representation for various administration policy initiatives. The firm also threw its former partner under the bus by acknowledging supposed “wrongdoing” by Pomerantz, when no evidence of such wrongdoing exists. In return, Trump agreed to rescind his order.

Paul, Weiss caving so quickly sent a shock wave through the profession. This is one of the largest, wealthiest, and most powerful firms in the country. If they aren’t willing to stand up to the administration, who will? The disgust was widespread. As one of my attorney friends posted on social media, “I wish I was working at Paul Weiss — only so that I could quit.”

Some have characterized these events as Trump extorting Paul, Weiss, but that’s too kind to the firm. Extortion implies the firm was a powerless victim. Paul, Weiss, with annual revenues of $2.6 billion last year and hundreds of skilled attorneys, is anything but powerless. It had a choice. It could have made the choice that Perkins, Coie and Williams and Connelly made, to stand up to Trump. Instead, it chose protecting its own financial interests over protecting the rule of law.

Paul, Weiss essentially paid Trump off to get him to withdraw an order he had no right to issue in the first place. In the process, it encouraged Trump to take similar actions against other firms. It’s shameful.

Trump’s assaults on the legal profession are not limited to these orders. Last week the acting head of the EEOC sent a letter to twenty leading law firms demanding detailed information, including private employee information, about their DEI programs and policies and suggesting they may be violating the law. And two days ago Trump issued a new directive entitled, “Preventing Abuses of the Legal System and the Federal Court,” ordering the Attorney General to prioritize seeking sanctions against firms and attorneys who engage in what he deems frivolous and vexatious litigation or other unethical behavior - to say the least an ironic demand, coming from him.

Attacks on Judges

In addition to law firms and lawyers, Trump is targeting judges. For example, agents recently seized scores of Venezuelan immigrants and put them on planes to deport them to El Salvador, claiming they were members of a violent street gang. The administration argues a law known as the Alien Enemies Act gives it the power to seize the immigrants and deport them without a hearing.

The ACLU quickly filed a lawsuit and Chief Judge James Boasberg of the D.C. District Court held an emergency hearing. During the hearing Boasberg raised serious doubts about the administration’s position. He ordered that any of the detainees set to be deported must remain in the country and any planes already in the air must turn back.

But the administration defied Boasberg’s order. The planes that were in the air did not turn back, and at least one more took off after the judge’s order. The Venezuelan immigrants are now being held in a mega-prison in El Salvador that is notorious for torture and inhumane conditions. Meanwhile, evidence is emerging from families and attorneys suggesting that some of those seized were not gang members at all.

The administration has offered varied excuses for defying the judge’s order. Officials claim the judge lacked authority to order the planes to turn back because they were already in international airspace. They have also argued they were not bound by certain portions of the judge’s order because he issued it verbally from the bench and not in writing.

Boasberg, a highly-regarded and even-handed judge, is getting exasperated. He declared the government’s responses “woefully insufficient” and said the government was evading its obligations. He has ordered officials to show cause why he should not find they have violated his order - the first step towards potentially holding them in contempt.

In response, Trump and his Justice Department have not followed the usual appellate process. Instead, they have asked the D.C. Circuit to remove Boasberg from the case. Attorney General Pam Bondi issued an unbelievable statement accusing Boasberg of favoring terrorists over the safety of the American people because he dared to question the administration’s actions. And on Truth Social Trump posted this truly unhinged attack on Boasberg:

One of Trump’s lackeys in Congress, Texas Republican Brandon Gill, dutifully filed articles of impeachment against Boasberg the same day.

This caused Supreme Court Chief Justice John Roberts to issue an extremely unusual statement rebuking the president, although not by name: “For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose.”

In the Perkins, Coie case, DOJ attorneys have also asked Judge Howell to recuse herself, arguing that her statements and rulings in prior cases, including those involving January 6 defendants, suggest she cannot be fair.

Seeking to have a judge removed from a case is an extreme step that rarely succeeds. It won’t succeed here, where the only alleged judicial “misconduct” is issuing rulings that Trump doesn’t like. And let’s be clear: no judge is going to be impeached and removed for making Trump unhappy. There is no basis for impeachment when the only alleged “high crime or misdemeanor” committed by a judge is issuing an order the president doesn’t like. Even if the razor-thin Republican majority in the House passed articles of impeachment, it would take ⅔ of the Senate to convict, which will never happen.

It’s also not likely that judges such as Boasberg and Howell are going to be intimidated by Trump’s insults and threats. But his attacks do put a target on their backs among his supporters and raise serious concerns about their security.

Although impeachment will not actually happen, these attacks on judges are part of Trump’s broader attack on the legal system. He wants his base to believe that any judge or lawyer who opposes him is by definition corrupt. And I fear he could be trying to lay the groundwork for a future claim that he may simply disregard court orders with which he disagrees.

Acts of Individual Attorneys

We’ve also seen a range of responses by individual attorneys to Trump’s lawless acts. During the “Thursday Afternoon massacre” eight DOJ attorneys resigned rather than carry out what they considered to be a corrupt order to dismiss the criminal case against New York Mayor Eric Adams.

The Thursday Afternoon Massacre

The pardon attorney was fired after she refused what she considered an improper request to restore actor Mel Gibson’s gun rights, which he lost due to a conviction for domestic violence.

Other attorneys, however, show up and do the administration’s bidding. During a hearing before Judge Boasberg, for example, a DOJ attorney argued the administration didn’t have to follow the order to turn the planes around because it was merely a verbal order from the bench. When the judge understandably expressed astonishment at such a claim, the attorney responded that this was what he had been instructed to argue.

In other words: “I’m just followin’ orders, judge.”

Attorneys, of course, have ethical obligations that transcend orders from superiors. Those who make frivolous arguments or false representations in court can’t hide behind a “just following orders” defense. Attorneys who are currently enabling the administration's lawlessness will carry that professional stain with them for the rest of their careers. But they also risk other consequences, including bar sanctions and the possible loss of their livelihood. Just ask Rudy Giuliani, Sydney Powell, or John Eastman, members of Trump’s legal “elite strike force team” involved in the frivolous challenges to the 2020 election who were later disbarred or faced other sanctions.

The individual attorneys who stood up for their principles lost their jobs for doing the right thing and defending the rule of law. It’s not too much to ask that the largest and wealthiest law firms in the country risk a hit to their profits per partner in order to do the same.

The Legal System at Risk

Unlike many victims of Trump’s lawlessness, law firms are not powerless. These mega-firms that are the subjects of Trump’s recent attacks have ample resources to fight back. And more so than ordinary citizens, they have a moral and professional obligation to do so. Other Big Law firms that have not yet been targeted need to join the fight on behalf of the profession, the legal system, and the judiciary.

This fight can’t be left to small firms and public interest groups. There are probably no institutions in the country better equipped to resist Trump than these Big Law firms. They need to join together, speak up to condemn these lawless acts, and take appropriate legal action. There may be some short-term financial consequences, but it’s the only way to survive in the longer term.

Imagine if instead of paying Trump off, Paul Weiss had pledged that $40 million to fighting Trump’s lawless actions in court - and other Big Law firms had matched their pledge? In addition to the financial resources, the unified condemnation of the leading firms in the country would send a powerful message.

History is going to remember how members of the profession acted during this time. Paul, Weiss has forever stained its legacy by giving in to Trump’s lawless demands. Other firms must not follow suit.

If there’s one thing we know about Trump, it’s that he will keep on pushing until someone stands up to him. His threats and intimidation of law firms and judges will continue and grow.

Big Law, you’ve been far too quiet for the past few weeks. Time to speak up and resist.