ArcaMax

Last week I wrote about Trump’s crackdown on the pillars of civil society — the universities, the scientific community, the media, the legal profession, and the arts — with the clear intent of intimidating them into silence.

Today I want to take a deeper dive into what Trump’s crackdown on the legal community — especially large law firms in Washington — actually means.

Frankly, I couldn’t give a sh*t about large law firms in Washington. They make boatloads of money for their partners. Even those whose partners are active Democrats push the party rightward as they round up campaign donations from corporate C-suites and Wall Street and urge Democratic members of Congress to move to the “center.”

But Trump’s bullying of Washington law firms is cutting off the litigation lifeline for nonprofit public-interest groups to challenge his policies — which is exactly why he’s doing it.

The latest example came last Tuesday in a Trump executive order aimed at the law firm Jenner & Block, stripping it and its lawyers of security clearances and access to government buildings.

What had Jenner done wrong? It once employed attorney Andrew Weissmann after he worked as a prosecutor in Robert S. Mueller III’s special counsel investigation of Trump in his first term. Weissmann left Jenner in 2021, but Trump’s vindictiveness never ends.

In announcing its executive order, the White House accused Jenner of participating in “the weaponization of the legal system against American principles and values” and called out Weissmann by name.

A federal judge termed Trump’s attempt to punish Jenner “reprehensible” and issued a temporary restraining order blocking it.

Before targeting Jenner, Trump went after lawyers at Covington & Burling. What had they done wrong? A few of their attorneys had represented former special counsel Jack Smith after he investigated Trump’s role in the Jan. 6, 2021, attack on the U.S. Capitol.

Trump has also targeted Perkins Coie, a law firm with ties to a dossier of opposition research against Trump that circulated during the 2016 campaign.

“It sends little chills down my spine,” U.S. District Judge Beryl A. Howell said in court as she granted Perkins Coie a temporary restraining order, suggesting Trump’s order is unconstitutional. In a filing last week, Trump’s Justice Department sought to remove Judge Howell from the case, accusing her of being “insufficiently impartial.”

Trump issued a nearly identical executive order targeting law firm Paul Weiss.

Its offense? One of its former partners, Mark Pomerantz, had left the firm to join the Manhattan district attorney’s office to help investigate allegations that Trump had overstated the values of his properties to obtain bank loans.

Rather than fight, though, Paul Weiss cut a deal with Trump. After meeting with him for three hours at the White House, its chairman, Brad Karp, agreed to devote $40 million worth of pro bono work “to support the administration’s initiatives,” Trump said in a post on Truth Social. Karp also acknowledged unspecified “wrongdoing” on the part of Pomerantz. Trump then rescinded his order against the firm.

The fifth big law firm that Trump has targeted is Skadden Arps.

What had it done? A few of its lawyers had worked pro bono on behalf of plaintiffs who said Dinesh D’Souza defamed them in his documentary, falsely accusing them of ballot fraud in the 2020 election. (D’Souza has previously admitted that the movie was “flawed” and apologized to one of the plaintiffs.)

On Friday, Trump announced that Skadden had reached “a settlement,” agreeing to do $100 million of pro bono work for causes Trump supports. “We very much appreciate their coming to the table,” Trump said.

Trump’s authoritarian playbook

Trump’s orders (and threats of orders) against law firms violate the firms’ and their lawyers’ rights to free speech and association, as well as the right to counsel guaranteed by the Sixth Amendment.

Even worse, they send a chill across the entire American legal community along with a warning: Don’t attack Trump. Don’t let your partners or associates attack him, ever. Force them to sign agreements before they depart your firm promising not to attack or prosecute Trump ever. Don’t take cases from nonprofits or anyone else challenging Trump.

Trump’s moves come directly out of the authoritarian playbook. Leaders of other countries that have sought to undermine democratic systems and the rule of law — Russia, Turkey, and Hungary — have similarly attacked lawyers.

“The law firms have to behave themselves,” Trump said at a Cabinet meeting last Monday. “They behave very badly, very wrongly.”

“It’s scary,” said a former Biden administration official who’s been pulled into Trump-era litigation and needed a lawyer. The former official had lined up a pro bono lawyer from a major law firm that dropped his case the day after Trump issued his executive order against Perkins Coie, saying it “discovered” a conflict of interest.

Five other firms said they had conflicts, the former official said, including one where “the partner called me livid, furious, saying that he’s not sure how much longer he’s going to stay there,” said the former official, “because the leadership didn’t want to take the risk.” The person spoke on the condition of anonymity to avoid further difficulty obtaining a lawyer.

Major law firms are also refusing to take public-interest cases challenging Trump, saying they can’t risk it if Trump goes after them as a result.

Litigation against an administration often requires vast resources — experienced lawyers versed in the relevant case law and scores of paralegals doing research across thousands of pages of evidence.

Last Friday, Trump said in a memorandum that lawyers aren’t supposed to file lawsuits or engage in court action unless there is “a basis in law” that is not “frivolous.” The clear suggestion is that he and Attorney General Pam Bondi, not courts, should determine who meets the criteria.

The memorandum also directed Bondi to consider “imputing the ethical misconduct of junior attorneys to partners or the law firm when appropriate” — a clear swipe at pro bono cases in which junior attorneys take the lead to gain litigation experience.

Shame and kudos

Shame on Trump and on those who work for him.

And shame on any law firm that caves in to Trump after he has targeted them, or any firm that caves in to Trump in advance— refusing to take cases that challenge him because they fear his wrath.

By settling with Trump, two of the firms that Trump targeted — Paul Weiss and Skadden Arps — have disgraced the legal community and turned their backs on their public duty to fight tyranny.

I put them in the same category as Columbia University, which surrendered its integrity to Trump’s illegal and unconstitutional demands without putting up a fight — thereby encouraging him to go after other universities.

By contrast, kudos to the three firms — Jenner & Block, Perkins Coie, and WilmerHale — that have chosen to fight Trump rather than settle.

Jenner said in a statement that its lawsuit is intended to “stop an unconstitutional executive order that has already been declared unlawful by a federal court.”

Jenner has also created a website — Jenner Stands Firm — to publicize its filing and to highlight newspaper editorials criticizing the executive orders and comments from law school professors questioning the legality of Trump’s actions.

Democracy requires courage. It necessitates people and organizations that put principle before money.

I hope any budding lawyer seeking employment at a big Washington law firm — and every potential client in America needing legal representation in Washington — takes note of the difference between the two sets of firms, and acts accordingly.