Sunday, April 27, 2025

Today, a summary of Trump's attacks on law firms, followed by my thoughts on what the response says about legal profession. Plus some (increasingly common) immigration horror stories.

Law firms under attack by the Trump regime

A few people have asked me about my thoughts on the Trump administration's persecution of law firms. What follows are (hopefully most of) the relevant background facts, plus my own thinking on the situation.

The basics

In a series of executive orders,* Trump has imposed penalties on certain law firms because those firms took on cases, clients, or causes Trump doesn't like. (The orders also call out the firms' expressed commitments to diversity, equity, and inclusion principles, though I believe that is a lesser motivation.) For example, Trump targeted Perkins Coie** because it represented Hillary Clinton, including in work that led to the creation of the "Steele dossier" aka the "Trump-Russia dossier." Other firms targeted include Paul Weiss (which was involved in lawsuits related to the the Jan. 6 coup attempt and is associated with an attorney who assisted in the NY State prosecution of Trump), Jenner & Block (which hired a prosecutor who worked under Robert Mueller), Wilmer Hale (which hired Robert Mueller and several of his aides), Susman Godfrey (which sued FoxNews over lies about the 2020 election), and Covington & Burling (which assisted Jack Smith during his time as special counsel investigating and prosecuting Trump).

The punishments Trump aims to inflict on these law firms with these executive orders are significant. For example, the executive order targeting Perkins Coie calls for cancellation of government contracts with any third party that does any business with Perkins Coie. Given that a most major corporations have some sort of contract with the government, this poses an existential threat to many law firms, as it would force their clients to choose between finding new lawyers or losing government contracts. Perkins Coie's major clients include Amazon, Microsoft, and Boeing, all of which have huge government contracts. The executive orders also entail other abuses--such as calling for Perkins Coie employees to be stripped of security clearances and denied access to government buildings--but, to my mind, the threat to retaliate against a firm's clients is the most coercive.

To be clear, Trump's executive orders targeting law firms are illegal, and the law firms that have fought back in court have been winning. However, the targeted law firms will be harmed no matter what. It costs time and money to litigate these issues. In addition, these law firms' clients will get the message that Trump wants them to seek other representation. Even if the executive orders are permanently blocked in court, those clients will worry (reasonably) that their mergers won't be approved, that they'll be audited, etc., and the effect of those concerns might be enough to sink a law firm on its own.

The point is to cement authoritarianism by undermining rule of law

In narrow terms, the goals of these efforts are (1) to discourage anyone from bringing cases that challenge the Trump administration or that harm Trump's personal interests and, (2) should anyone be undeterred, to prevent such persons from being able to finding attorneys to represent them. It is already working. The bigger picture aim, which is also supported by attacks on the legitimacy and threats to the physical safety of judges, is to undermine rule of law*** so that the Trump regime can operate without restraint or fear of consequences.

The legal profession fails to rise to the occasion

The solution here is obviously collective action: The legal profession needs to unite to oppose these tactics together, with one voice. No firm will suffer too badly if all are in the same boat. That . . . is not what has happened. One firm targeted by an executive order tried to rally support from other firms, but not only was no support forthcoming, other firms instead tried to poach the targeted firm's clients.

One targeted firm--Paul Weiss--reached a settlement with the Trump administration. That settlement was memorialized in a new executive order withdrawing the prior executive order that targeted the firm for punishment. That new executive order repeated Trump's claim that Paul Weiss "participated in" "'undermining the judicial process and in the destruction of bedrock American principles.'" The new order further stated that "Paul Weiss has acknowledged the wrongdoing of its former partner Mark Pomerantz," who was the attorney who assisted in the NY State prosecution of Trump.

Even worse, a number of law firms decided to obey in advance--which you really should not do--and preemptively reached similar settlements with the Trump administration, before any executive order targeting them had been issued. These firms include A&O Shearman; Kirkland; Latham & Watkins; Simpson Thacher; Cadwalader Wickersham & Taft; Milbank; Skadden, Arps, Slate, Meagher & Flom; and Willkie Farr & Gallagher. These agreements each typically entail promises to abandon DEI-related efforts and to provide up to $125,000,000 in free legal work to causes that Trump supports, including specifically matters that advance "Conservative ideals." Some of the agreements--announced on Trump's Truth Social account--note the settling law firms' "commitment to ending the Weaponization of the Justice System and the Legal Profession."

Having looked at the specifics of these agreements, I think it's probably possible to parse the language such that the firms involved can tell themselves they're not really giving anything up or compromising their principles: They are already support free legal work regardless of the clients' politics! They already follow the law in hiring! They are already opposed to "weaponizing the justice system!" Indeed, that appears to be Paul Weiss's position.

But that is clearly bullshit. Trump doesn't think these law firms have agreed to continue good-faith responsible practices in hiring, volunteer work, and stewardship of the justice system. Anyone paying attention and being honest with themselves knows that Trump expects favors for himself, support for his friends, and attacks on his enemies. Entirely predictably, that is how it is playing out. These firms have transparently capitulated to an authoritarian and agreed to aid his cause.

Within the law firms that have caved, there have been some resignations in response to the agreements, but not nearly enough and mainly among younger attorneys. And while hundreds of law firms law firms have signed onto amicus briefs filed in support of the firms fighting back in court--I'm proud to say my law firm is among them--very few of the country's largest, wealthiest, most powerful law firms have signed on.

To understate things, this is a disappointment. Opposition would entail financial risk, but the capitulating law firms are populated with some of the wealthiest, most powerful people in the world. Not only that, but, as lawyers, they are uniquely situated to understand the harm they are doing. If these people will not resist in significant numbers, what hope do we have that others will?

What these events says about the legal profession

I see one side benefit of these abusive executive orders: I believe they help settle a long-running debate about morality and the legal profession, albeit not in a favorable way. Let me explain.

As a former public defender, I've represented people accused (and in many instances eventually convicted) of terrible crimes. I am untroubled by this because I believe deeply that anyone facing imprisonment at the hands of the government should have the right to be represented by a competent attorney. I further believe that attorneys providing such representation are engaged in a noble and admirable enterprise: They are giving life to rights that are the foundation of the rules-based order that we have created as an alternative to tyranny. Consequently, I don't think there's anything morally dubious about an attorney representing someone charged with, say, murder.

A similar sort of logic is often invoked to defend attorneys in civil practice when they are judged for taking on a particular client or case. (In contrast to criminal cases or criminal practice, "civil practice" or "civil cases" mean cases between non-government actors where money and not physical liberty is at stake.) Everyone deserves representation, the argument goes, and therefore we cannot and should not judge an attorney by the clients he or she represents. The notion is even incorporated into legal ethics rules, at least in part.

I confess I've never fully been comfortable with transferring that logic from criminal practice to civil practice. Some of my discomfort stems from the difference between civil and criminal consequences: I tend to think the distinction is one of kind rather than degree, but, even if not, incarceration represents a markedly more serious penalty than an order to pay money. And some of my discomfort stems from the power dynamics normally at play: In criminal cases, the defendants are typically indigent, and they are lined up against the immense power of The State; in civil litigation, relative power among litigants can vary, but the attorneys that seem to object most to being judged seem to be the ones representing immense corporate interests. For what it's worth, our legal system recognizes this difference: everyone is allowed to get an attorney in a civil case, but attorneys are provided to those who can't afford them in criminal cases.

Ultimately, I believe it's not just acceptable but good to pass moral judgment on attorneys in civil practice for the clients and cases they take on, at least when we're talking about highly paid attorneys who effectively have their choice of clients and cases, and especially when such attorneys do things like maximize procedural burdens in attempts to win through attrition. The alternative is a permission structure calculated to render evil banal. However, this is far from a universally held view, and we see powerful attorneys defend other powerful attorneys when, for example, they get criticized for arguing that child slaves shouldn't be able to use US courts to sue the US companies that profited from their slave labor if those children were enslaved in other countries.

So how do these executive orders relate to this debate? The point of the orders is to punish law firms for taking certain clients and cases. When a firm settles a claim that the firm was wrong to accept a certain case or client, it endorses the validity that claim, that is, they're agreeing to let Trump punish them for the cases and clients they take on. That endorsement is explicit in the announced Paul Weiss agreement itself, and it is evidenced in communications surrounding some of the other settlements. But it is at least implicit in every settlement.

The settling firms may object that the orders impose real penalties regardless of their validity. But that just means they’ll sell out their principles for the right price. If a principle only applies when it’s useful or convenient—helping you face your social peers, or yourself—but yields when it comes with a cost, it’s not a principle at all but rather a self-serving lie.

The settling firms may object that they needed to settle to fulfill their ethical obligations to their clients, who may be harmed as well. Even if we assume that those obligations weigh in favor of reaching a settlement--something I'm not at all convinced of--attorneys also have duties to obey state and federal laws and ethical obligations to the justice system itself, all of which are inconsistent with the firms' settlements. These law firms are telling us what really matters to them by how they navigate this conundrum, and it’s not the integrity of the justice system or the principle that attorneys should not be judged for their clients. It’s the course of action that keeps their bank accounts full.

The powerful firms that have not been targeted but which have not voiced support for the firms that have fare no better, as the same logic generally applies. They’re silent because they’re afraid defending principle will entail costs. Or because they subordinate their obligations to the justice system to their duties to their clients and, conveniently, their bank accounts. Or because the notion that they shouldn't be judged for their cases and clients is self-serving bullshit.

Trump’s executive orders are shameful and illegal, but they’ve revealed something important about the legal profession. Attorneys are and should be free to represent anyone they want. But for attorneys at powerful firms that have either capitulated or remained silent and who represent reprehensible clients doing terrible things, let’s stop pretending they’re anything other than mercenaries who have chosen to help reprehensible clients do terrible things because the price is right.

FN* In general, executive orders are directives issued by the President that address the operation of the executive branch of government. They can be issued, revoked, or modified at the President's discretion. Executive orders cannot overrule statutes, which are passed by Congress and signed by the president (except in the case of a veto override). I don't believe executive orders can overrule regulations lawfully promulgated by executive or independent agencies through formal processes like notice-and-comment rule-making, but I'm not totally sure.

FN** "Coie" is pronounced COO-ee.

FN*** Rule of law, of course, is the principle that laws are equally and fairly applied to everyone, that no one is above the law. It means that even powerful interests won't always win, and it's why we have rights in any meaningful sense at all. Unsurprisingly, authoritarians typically work to subvert this fundamental characteristic of free and fair societies.

Immigration Horrors

US citizen detained by border patrol for 10 days

A US citizen was wrongfully arrested and detained for 10 days by immigration officials. He was visiting his girlfriend's family in Tucson, Arizona, when suffered a medical emergency and went to a hospital by ambulance. After leaving the hospital, he approached border patrol agents for help finding his way back to where he was staying. Border patrol claims the man admitted he had been born in Mexico, was a Mexican citizen, and had entered the country illegally. The man denies he said those things, which makes sense because none of those things are true. While he signed documents indicating otherwise, the man has a learning disability and cannot read:

Our immigration system is "disappearing" people

Another man was seized by immigration officials when, while working a food delivery job in Detroit, he re-entered the US after a wrong turn caused him to accidentally cross into Canada. While detained in the US, he told a friend that he expected to be repatriated to Venezuela. However, he appears have been neither returned to Venezuela nor sent to the concentration camp in El Salvador, and his whereabouts are unknown. He has simply disappeared entirely.

Yes, children represent themselves in immigration court

I get that it can be burdensome to provide counsel, but having children as young as 4 years old represent themselves in immigration proceedings is unconscionable. This is just obscene:

“The reason we’re here is because the government of the United States wants you to leave the United States,” Judge Ubaid ul-Haq, presiding from a courtroom on Varick Street, told a group of about a dozen children on a recent morning on Webex.

“It’s my job to figure out if you have to leave,” ul-Haq continued. “It’s also my job to figure out if you should stay.”

The parties included a 7-year-old boy, wearing a shirt emblazoned with a pizza cartoon, who spun a toy windmill while the judge spoke. There was an 8-year-old girl and her 4-year-old sister, in a tie-dye shirt, who squeezed a pink plushy toy and stuffed it into her sleeve. None of the children were accompanied by parents or attorneys, only shelter workers who helped them log on to the hearing.

God forgive us

The Trump regime has now deported multiple US citizen children with cancer.

Miscellanea

9% of Americans polled have favorable views of "The Black Plague?" That reminds me of this.

And a meme that keeps being useful: