Law firms benefit from fighting Trump attacks. Those who caved suffer.
Trump’s clashes with big law firms have helped differentiate the courageous from the cowardly.
U.S. District Judge Richard J. Leon was so outraged by President Donald Trump’s unconstitutional executive orders targeting law firms that he used 26 exclamation points in permanently blocking the version against WilmerHale from being enforced. “The Order shouts through a bullhorn,” he wrote last month: “If you take on causes disfavored by President Trump, you will be punished!”
That’s not normally the style of the 75-year-old senior judge nominated by President George W. Bush. But it captures bipartisan outrage across the legal community and the tenor of rulings in favor of all four firms that chose to fight back when Trump sought to punish them for their former clients or employees. The others are Jenner & Block, Perkins Coie and Susman Godfrey.
At first, Trump’s orders looked like possible death sentences for some of the country’s top firms. The orders threatened the firms’ clients with cancellation of government contracts, barred attorneys from entering government buildings and aimed to strip security clearances from firm partners who need them to do their job.
That’s why nine firms caved. In agreements with the Trump administration, they pledged nearly $1 billion in combined pro bono legal services — with many specifics to be figured out later. The result has been enormous reputational damage.
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Firms reasoned that they were doing what was best for their clients — but their deeds signaled the opposite. If they wouldn’t fight for themselves, would they zealously advocate for their clients — especially if their clients’ interests were at odds with the administration’s? Even the most odious clients deserve wholehearted representation. That’s why John Adams, a future president, defended British soldiers charged in the Boston Massacre.
At least 11 big companies have moved work away from firms that settled with the administration or are giving more business to firms that have refused to strike deals, according to the Wall Street Journal: “Among them are technology giant Oracle, investment bank Morgan Stanley, an airline and a pharmaceutical company. Microsoft expressed reservations about working with a firm that struck a deal, and another firm stopped representing McDonald’s in a case a few months before a scheduled trial.”
In March, Paul Weiss became the first firm to cut a deal after Trump signed an executive order aimed at it. The president rescinded his order after Paul Weiss agreed to provide $40 million in pro bono services. Brad Karp, the firm’s chairman, argued at the time that, even if it had ultimately prevailed in court, the business probably would not have survived. That turns out not to have been the case.
Several attorneys at Paul Weiss subsequently quit. On June 6, the former top federal prosecutor in Manhattan, Damian Williams, defected from Paul Weiss to Jenner & Block. He said he did so because Jenner “lives its values” and “doesn’t shy away from hard fights.” He followed four partners who jumped ship last month to start their own practice. Former homeland security secretary Jeh Johnson and Steven Banks, head of the firm’s pro bono practice, also left.
Other firms that settled with the Trump administration are A&O Shearman; Cadwalader Wickersham & Taft; Kirkland & Ellis; Latham & Watkins; Milbank; Simpson Thacher & Bartlett; Skadden; and Willkie Farr & Gallagher.
The pro bono agreements are not codified with enforceable contracts, and Trump is floating potential causes for cooperating firms to take on, from drafting coal mining leases to negotiating international trade deals to defending law enforcement officers accused of criminal misconduct. Conservative groups have contacted the firms to ask for free legal aid. The firms have emphasized that they maintain full control over any client they take on, and it’s not even clear whether they have provided any services under the deals. But they must suffer under the threat that Trump will reissue damaging executive orders if he feels they aren’t compliant.
Big law firms might not seem the most sympathetic victims, but defending lawyers’ independence to represent all sorts of clients is essential to preserving the rule of law and fairness in the courtroom. The Justice Department has yet to announce whether it will appeal the rulings in favor of the firms who challenged the president’s executive orders. It shouldn’t. And if the administration does appeal, the nation’s independent judiciary should continue to show, swiftly and decisively, that the president cannot abolish the legal system’s foundational principles.