When President Donald Trump issued his first executive order imperiling the business of a law firm, Perkins Coie, which represented Hillary Clinton’s 2016 presidential campaign, the legal community was in shock.
“I am sure that many in the profession are watching in horror at what Perkins Coie is going through,” said Judge Beryl Howell in a D.C. federal trial court March 12, six days after Trump issued his order and one day after the firm sued. “It sends little chills down my spine,” she said, to hear the government argue such orders are lawful if the president thinks the company’s operations aren’t in the nation’s interest.
Then the executive orders just kept coming, each complaining of a past hiring decision or client of the targeted firm.
On March 14, it was Paul, Weiss, Rifkind, Wharton & Garrison LLP, which had once hired a lawyer who went on to investigate Trump in a New York prosecutor’s office. On March 25, it was Jenner & Block LLP, guilty of previously employing a lawyer who aided Robert Mueller’s investigation of pro-Trump Russian election interference. On March 27, the target was WilmerHale, whose sins included hiring Robert Mueller himself.
In some of the orders, Trump also accused the firms of being “partisan” in the clients they represented.
As each new order arrived, lawyers began to realize the potentially profound implication: that a wide segment of the profession might be bullied into representing only Trump-approved clients and causes. For an administration already facing more than 100 lawsuits in its first 75 days, pressuring top law firms to avoid challenging Trump in court could reduce the legal risk to his policies.
“If you can actually intimidate law firms into not litigating against your administration, that is hugely powerful – that will help you advance the rest of your agenda,” David Lat, a former federal prosecutor and law firm associate who writes about the legal profession on his Original Jurisdiction substack, told USA TODAY.
“It is like a boxing match where you are chopping off the arms of your opponent,” Lat said.
Three firms – Perkins Coie, Jenner & Block, and WilmerHale – have now sued, and each won a temporary restraining order suspending major portions of Trump’s orders that judges said are likely illegal.
But any hopes that the legal community might stand united in fighting the orders, which even many Republican and conservative lawyers have called blatantly unconstitutional, were extinguished when Paul Weiss cut a deal March 20 to get its order lifted, promising to devote $40 million worth of free legal work to projects both the firm and Trump support.
Other firms started coming to Trump preemptively, negotiating to avert new orders that could have targeted them. The four agreements so far have pledged $340 million in free legal work for mutually-supported causes, often promising some of those causes would support “conservative ideals.”
The law firms that have sued say the measures violate a slew of constitutional rights, including the rights to speech, to freely associate, to petition the government, to have a lawyer, and to get due process.
“Our country is based on the tradition that you can represent clients, you can represent unpopular clients, you can represent clients that are adverse to the interests of the people in the White House right now,” Paul Clement, a former solicitor general from the George W. Bush administration and conservative legal superstar, said in a D.C. federal courthouse March 28. Clement was arguing that his client, WilmerHale, should get a temporary restraining order.
“And, if you do a good job for your client, you’re applauded for doing it and you’re certainly not sanctioned by the government power, the highest official in the land,” Clement added.
The White House didn’t respond to USA TODAY’s request for comment, but Trump has repeatedly expressed glee at law firms cutting deals. “They’re just saying, ‘Where do I sign? Where do I sign?'” Trump said at a Women’s history event March 26.
The law firms that negotiated agreements, Paul Weiss, Skadden, Arps, Slate, Meagher & Flom LLP, Willkie Farr & Gallagher LLP, and most recently on Wednesday, Milbank LLP, didn’t respond to USA TODAY’s requests for comment.
In a widely-reported email to his firm on why he made a deal, Paul Weiss Chairman Brad Karp said it “was very likely” the firm couldn’t survive a protracted fight with the administration.
“We initially prepared to challenge the executive order in court,” Karp said in the email. “But it became clear that, even if we were successful in initially enjoining the executive order in litigation, it would not solve the fundamental problem, which was that clients perceived our firm as being persona non grata with the administration.”
Trump’s executive orders targeting specific law firms aren’t the only way in which he’s gone after lawyers who challenge him. On March 22, he issued a memorandum directing his administration to seek sanctions and make recommendations on stripping away federal contracts and security clearances for lawyers and law firms “who engage in frivolous, unreasonable, and vexatious litigation against the United States.”
It’s not clear what kinds of lawsuits that refers to, but critics fear it could mean any challenge to the president’s policies.
“Any suit that’s filed against Trump’s administration, Donald Trump will, by definition, believe is frivolous and vexatious,” Chris Christie, a former federal prosecutor and Republican New Jersey governor, predicted in an interview on ABC’s “This Week” March 23.
“If (firms) continue to act like Paul Weiss did, and cave and be intimidated, well then we’re going to have a much different legal system in this country,” Christie added.
Lawsuits against presidential actions are common across administrations, and Trump’s administration already faces challenges alleging he has broken the law by firing federal workers without demonstrating cause, deporting alleged gang members without giving them a chance to make their case, cutting federal health funding, and more.
In the wake of the president’s memorandum, the Justice Department began “an immediate review of law firms who have participated in inappropriate activity and weaponized lawfare,” department spokesperson Natalie Baldassarre told USA TODAY in a statement.
The results of that review have not yet been released.
Trump’s executive orders use a multi-pronged approach to hamper a law firm’s ability to do business – and there’s plenty of evidence the firms fear it could succeed.
The orders threaten the government contracts of not just the firms but also firm clients. The orders also strip lawyers of security clearances – a measure that limits lawyers’ ability to represent certain clients – and ban them from federal government buildings. Federal District Court Judge Richard Leon, at a March 28 hearing, pondered if that would even include federal courthouses.
There is also a potential subtext for law firms to fear: that existing and would-be clients will read into the orders that the law firms are each a persona non grata when it comes to working with the Trump administration.
Before Paul Weiss made the deal with Trump to get the executive order against it rescinded, one of its clients, a criminal defendant who was facing federal foreign corruption charges, terminated the firm as defense counsel in response to the order, the firm said in a court filing.
But the potential for damage extends beyond the law firms themselves, according to Leon.
WilmerHale “faces more than economic harm – it faces crippling losses and its very survival is at stake,” Leon wrote in his March 28 ruling granting WilmerHale a temporary restraining order. “The injuries to plaintiff here would be severe and would spill over to its clients and the justice system at large.”
Leon temporarily restrained most of Trump’s executive order against WilmerHale, although not the portion revoking security clearances. He said legal precedent suggests Trump has especially strong authority when it comes to those clearances. Jenner & Block and Perkins Coie didn’t ask for that provision to be temporarily restrained, although they are challenging it as well in their ongoing lawsuits.
Leon issued the order after listening to WilmerHale lawyer Paul Clement argue Trump’s action violated firm employees and clients’ First Amendment rights to speak freely, to petition the courts for help, and to freely associate with each other.
“The court’s decision to block key provisions of the order vindicates our and our clients’ foundational First Amendment rights,” a WilmerHale spokesperson said.
Perkins Coie and Jenner & Block have both created websites dedicated to their ongoing legal battles to fight the executive orders.
“Part of what is so pernicious about this is that even if the law firms who are challenging these executive orders prevail in court, which they are likely to do, they will have put themselves through great expense and possibly lost clients for the foreseeable future,” said Gregg Nunziata, who served as general counsel to Secretary of State Marco Rubio when Rubio was a Republican senator from Florida. Nunziata now heads the Society for the Rule of Law, a group of predominantly conservative lawyers focused on rule-of-law issues.
In addition to raising First Amendment arguments, the firms’ lawsuits allege Trump violated a host of other constitutional provisions, such as the right to counsel under the Sixth Amendment.
Jenner & Block, for example, said the order hurts its “ability to represent its clients in connection with government-facing work” and undermines “the attorney-client relationship and clients’ right to counsel of their choice.”
The firms that have sued also accuse Trump of denying them their Fifth Amendment rights to due process and to receive equal protection of the laws because Trump, they say, didn’t give them a chance to defend themselves before punishing them and is unfairly singling them out.
The administration is forcefully defending the orders in court, highlighting that each order not only complained about someone who had been employed or represented by the firm in question, but also that the firms in question allegedly discriminated on the basis of race in employment decisions – an apparent reference to affirmative action.
“The Government has every right to use its procurement power to discourage such practices,” Justice Department lawyer Richard Lawson and Acting Associate Attorney General Chad Mizelle said in a Wednesday court filing in Perkins Coie’s case. The government uses its procurement power to acquire goods and services, such as by hiring a law firm.
“Using the executive power to advance social policy is very strongly supported,” Lawson said at a March 28 court hearing in WilmerHale’s case.
The Justice Department is also arguing the lawsuits have been filed too early because agencies haven’t issued guidance to implement Trump’s orders yet.
Major private law firms mostly represent clients who are able to pay high fees, but they also maintain “pro bono” practices in which they provide free legal work to clients in need. Private lawyers at big law firms, for instance, played a major role in litigation leading up to Obergefell v. Hodges, the 2015 decision in which the Supreme Court extended marriage rights to same-sex couples across the U.S.
While Democratic state attorneys general and nonprofits like the ACLU have also filed lawsuits challenging Trump policies such as deportations, experts say the loss of pro bono work from big law firms would reduce the number of policies that can be challenged in court.
“States and public interest organizations have important roles to play,” Lat said. “It is still hugely significant if you are taking a number of big firms off the table.”
The concern may not be limited to the law firms that have actually been targeted. Other firms could choose not to stick their necks out in challenging the administration lest they, too, face executive orders targeting their business.
“There’s nothing stopping the president, if they get away with this, also going after smaller firms, boutiques, public interest organizations,” Daniel Ortner, an attorney at the free-speech-focused Foundation for Individual Rights and Expression, told USA TODAY.
The orders have produced an outcry within the legal profession. By Saturday, about 1,700 former Justice Department employees signed a statement organized by Protect Democracy, a nonpartisan nonprofit, voicing their opposition.
The American Bar Association and dozens of local bar associations signed a March 26 statement rejecting “the notion that the U.S. government can punish lawyers and law firms who represent certain clients or punish judges who rule certain ways.”
USA TODAY unsuccessfully reached out to several conservative groups for an interview or statement on the lawfulness and appropriateness of Trump’s orders targeting law firms, including the Federalist Society, the Heritage Foundation, the Center for Renewing America, and the America First Policy Institute. Spokespeople for Republican House Judiciary Committee Chairman Jim Jordan and Republican Senate Judiciary Committee Chairman Chuck Grassley didn’t respond to requests for comment.
Asked by a reporter in the Oval Office March 21 how he would respond to critics who say the orders amount to coercion, the president appeared unconcerned.
“Well, the law firms all want to make deals,” Trump said.
Alongside targeting law firms, Trump is also waging a bully-pulpit campaign against the judiciary. On March 18, he said in a Truth Social post that Chief U.S. District Judge James Boasberg, who ruled against one of his deportation policies in a D.C. federal court, should be impeached, along with many other “Crooked Judges.”
That post prompted a rare public rebuke the same day from U.S. Supreme Court Chief Justice John Roberts, who said impeaching judges “is not an appropriate response to disagreement concerning a judicial decision.”
Trump didn’t back down from his impeachment call in an interview with Fox News’ Laura Ingraham later that day, saying “these are judges that shouldn’t be allowed.”
The call for impeachments and the orders targeting attorneys threaten the judiciary’s role in the constitutional system of government, Nunziata believes.
“The Trump administration is attacking the independence of the judiciary itself by threatening impeachments and otherwise trying to discredit the judiciary,” he said.
“Part of the people having control is the people being able to petition their government and say, ‘Hey, government, you’re wrong about this.’ And lawyers play a critical role in ensuring that can happen,” Kristy Parker, a former federal prosecutor who is now counsel at Protect Democracy, told USA TODAY. “So the mechanism here is targeting lawyers and law firms, but the real target is self-government.”
(This story has been updated to correct a misspelling/typo.)
An attack on the Constitution? Why Trump's moves to punish law firms are causing alarm – USA Today
