The Wheels of Justice Turn Slowly, but They Grind Exceptionally Fine

by Ambassador Thomas Graham (Retired) and David Bernell

The institutions that help to maintain a free society, and which are evidence of a society’s freedom when things are working well, are currently under attack by the United States government. Donald Trump and members of his administration routinely talk about journalists as enemies of the people if they publish news that the Trump team dislikes. Universities are under attack. Well-known institutions such as Columbia and Harvard, along with many others, have had their federal funding threatened or canceled for being on the wrong side of Trump administration wishes. (Harvard refused the government’s demands. It can wait out Trump – it’s older than the United States itself). In addition, the legal profession is also part of this attack by the Trump administration against independent centers of power and influence.

Targeting people and institutions that can maintain limits on governmental power is a common theme among several governments around the world today. Strongman rulers such as Hungary’s Victor Orban and Turkey’s Recep Erdoğan provide clear cut examples of this. The strategy is to dismantle the powers and connections in civil society, to disaggregate institutions from one another, to make individuals feel like they are powerless to do anything, and to tear apart social fabric, piece by piece. A word that captures this phenomenon is “atomization,” reducing things down to their smallest components so that collective action or defiance seems impossible. Succeeding in such efforts allows strongmen to cement their power and wealth, along with their friends/family/cronies/allies, and produce what journalist and historian Anne Applebaum calls “Autocracy, Inc.”

Targeting the Law and the Lawyers

Donald Trump’s playbook with regard to the legal profession is proceeding along these lines. He has begun an attack on lawyers in order to exact retribution for his own legal troubles, and in so doing, to strengthen his own position. Lawyers and law associations have their own rules and standards to ensure institutional strength and ethical behavior, but withstanding government attacks can be a challenge. The Rules of Professional Conduct of the American Bar Association explain how lawyers are ethically obligated to act competently in upholding certain principles and practices such as confidentiality, honesty, diligence, and integrity. These are obligations for all who advise individuals or organizations on their legal issues. Bribery and seeking untoward advantage through money or relationships, or denying due process is not consistent with either honesty or integrity, which are fundamental commitments for all lawyers.

Trump’s attacks against law firms serves as an assault on the rule of law. Trump knows full well that a law-based society cannot be maintained if individuals and organizations protected by due process are left without skilled, trained advocates to represent them. In other words, law is difficult, if not impossible to uphold, without lawyers to serve as defenders of the legal process, and to represent clients in need of counsel.

Political leaders who want to hold themselves above the law cannot survive politically in a country that abides by the rule of law and is protected by lawyers and law firms acting with integrity and honesty to uphold the law. At its best, this is what America’s legal profession does, and this means that honest, ethical protectors of law are a direct threat to corrupt, would-be tyrants like Donald Trump. Therefore, the legal profession is high on his hit list.

Trump began his campaign against the legal profession on February 25, targeting large and powerful law firms with executive orders that included special sanctions for each firm under attack. In general, the executive orders were designed to punish firms for representing clients that Trump doesn’t like or supporting objectives which he opposes.

The first law firm so designated by executive order was Covington and Burling, which had represented Jack Smith, who had served as a Special Counsel for the U.S. Department of Justice during the Biden Administration. Smith had filed two indictments against Trump, one for inciting the January 6, 2021 assault and riot in the Capitol, and the second for stealing classified documents belonging to the government as Trump left office in January of 2021, and hiding the documents on his estate in Florida. The order threatened some of the lawyers at Covington and Burling with revocations of security clearances, and a review of government contracts with the firm.

On March 6, Trump signed an executive order that attacked the firm of Perkins and Coie, to punish what he called “dishonesty and dangerous activity.” The firm had, among other things, represented Trump’s opponent in the 2016 campaign, Hillary Clinton, and was accused of working with “activist donors” such as George Soros to “judicially overturn...election laws, including those requiring voter identification.” With this firm, Trump not only revoked its lawyers’ security clearances, he also banned any of its lawyers from entering federal buildings or engaging with government officials.

Another executive order was issued on March 14, this time against the law firm Paul, Weiss. In this instance the first capitulation occurred. The managing partner of the firm of Paul, Weiss met with Trump personally on March 21 and agreed to provide $40 million in pro bono legal services on behalf of causes of Trump’s choosing. This would be in exchange for Trump canceling the executive order for Paul, Weiss. To that end, Trump got $40 million worth of high-end pro bono legal work simply for signing a page of threats against the firm, which was widely criticized for caving into Trump’s demands. Brad Karp, the managing partner of the firm, defended himself and the firm, saying that Trump’s executive order could have destroyed his firm. He said that he was “hopeful that the legal industry would rally to our side…Disappointingly, far from support, we learned that other firms were…aggressively soliciting our clients and recruiting our attorneys.”

Mr. Karp didn’t seem to understand that to have others come to your side, you have to begin by fighting for yourself. Who would want to place their fortunes in the hands of a firm or work for a firm that did not resist a clearly inappropriate executive order? Karp announced the deal with Trump in a staff-wide email asserting that the agreement was “consistent with the firm’s statement of principles,” which were written by the firm’s leader in 1963, Judge Simon H. Rifkind, to “cement firm’s fidelity to democracy and the law.” President Trump is known for many things, but being faithful to democracy and the law is not one of them, and in that vein Judge Rifkind’s granddaughters, Amy and Nina Rifkind (also both lawyers), said they were “stunned by the deal” and how Karp had “invoked their grandfather’s principles to justify it.” They said, “It is plain to us, as it would have been to our grandfather, that taking action to stay off an enemies list does not advance the rule of law as embodied in the statement of principles, it undercuts it and emboldens those who seek to dismantle it.” Criticism of Paul, Weiss was widespread. A large number of attorneys who had formerly worked for the firm criticized this decision in a letter to the firm. Other law practices, columnists, members of Congress, and even a retired federal judge, J. Michael Luttig, weighed in: “Paul Weiss chose to cower before the powerful and sell out its firm and the legal profession to the president.”

In late March and early April executive orders were issued against the law firms Wilmer Hale, Jenner & Block, and Susman Godfrey. These firms employed lawyers who had previously been a part of the FBI investigation into Trump’s ties to Russia, or who had served in the successful lawsuit against Fox News. Another large firm, Skadden Arps, on March 27 preempted a Trump executive order, deciding instead to prostrate itself before the president. The firm agreed to deliver $100 million of pro bono legal work for Trump’s purposes to prevent him from signing an executive order targeting them. It was noted in the Washington Post that “the price of capitulation had more than doubled since Paul Weiss’s settlement.”

There are now a total of six firms that have had executive orders directed at them, four that have sued the administration and received temporary blocks on the orders, and nine law firms that have made deals with Trump, totaling almost $1 billion in free legal services as a result of his threats. These capitulations have prompted several lawyers to leave their firms. One Skadden Arps associate, Thomas Sipp, made the noteworthy comment when he resigned, saying that “We are sliding into an autocracy where those in power are above the rule of law…Skadden is on the wrong side of history. I could no longer stay knowing that someday I would have to explain why I stayed.”

Fighting Back

The backlash against Trump’s actions has taken shape quickly. While Democratic members of Congress have criticized the president for his actions (calling them “an illegal shakedown”) and expressed their desire to investigate the executive orders and the deals reached with several firms, the real fight has been taken up by member of the legal profession themselves.

Perkins Coie was the first firm to fight back, and it fought back hard. It hired the criminal defense law firm Williams and Connolly, which filed suit in federal court for their client on March 11 to reverse the executive order, saying that it was “an affront to the Constitution” and arguing that its purpose “was to bully those” who disagreed with the president. The judge issued a temporary stay on March 12, blocking the Trump executive order and saying that it “sends little chills down my spine.”

Perkins Coie, being the first to vigorously fight back, set the standard. This helped to stiffen the spine of other lawyers and bring other law firms to their defense. One firm not directly targeted by an executive order, Keker Van Nest & Peters, issued a statement calling on others to rally to the cause: “We encourage law firm leaders to sign onto an amicus effort in support of Perkins Coie…and to resist the Administration’s erosion of the rule of law.” An amicus brief backing Perkins Coie filed on March 28 was signed by hundreds and law firms, big and small, in a massive show of support across the legal profession. Others also submitted briefs in support: the American Civil Liberties Union, the Cato Institute, the former presidents of the DC Bar, and most notably, the attorneys general from twenty states.

For its part, Perkins Coie responded to the outpouring of support, saying that “We are grateful for the support of over 500 law firms, as well as numerous other amici, in our challenge to the unconstitutional executive order and the threat it poses to the rule of law.”

The critiques of Trump’s executive order were harsh and unyielding, as they not only concerned the fate of Perkins Coie, but the illegitimate actions of the government and their larger implications.

The maliciousness of the executive orders were assailed. Criticisms noted that “law firms are being targeted for suing the government or representing someone the government doesn’t like,” and that Trump was seeking to “intimidate elite law firms from representing his opponents.” One judge who blocked an executive order, D.C District Judge Richard Leon, said in his ruling that “the retaliatory nature of the Executive Order at issue here is clear from its face.”

Going beyond the motivations of the executive orders, critics pointed out that the outcomes of this challenge are of great consequence. One statement said that “the rule of law cannot long endure in the climate of fear that such actions create.” Another said that Trump’s actions amounted to “an assault on the vital underpinnings of the American legal process itself.” Judge Leon in his ruling put it plainly: “There is no doubt this retaliatory action…qualifies as a constitutional harm.” And one former US solicitor general, Donald Verrilli, said that Trump’s orders represent “one of the most brazenly unconstitutional exercises of executive power in the history of this nation.”

The (Perhaps) Slow, but Necessary Path

In spite of a handful of law firms acquiescing to the Trump administration, it appears that American lawyers and law firms have come to the wise conclusion that the best way to defend themselves and their own immediate interests is to unite in a shared, broad, sustained defense against Donald Trump’s attack on them and on the rule of law.

This refusal to cooperate recognizes that giving in to bullies only encourages them. It is already being reported that Donald Trump is considering the pro bono legal work he has secured will be available for just about anything he wants, including defending tariffs, reviving the coal industry, or defending Trump or his allies in court if needed. Firms that capitulated are likely to find out that Trump continually demands more of them. This happened with universities quickly. Columbia University reached an agreement with the administration, but its federal funds remains frozen, and it has received additional penalties. In Harvard’s case, it got a second set of demands in a follow-up letter before even responding to the first letter they received. Harvard knew what was happening, and so they told the administration no. The nine law firms that made a deal with Trump can be expected to learn this lesson soon, if they haven’t already.

Succumbing to the temptation to limit immediate harm can be attractive when government powers set their sights on a person or institution. In such a context, it’s easy to save yourself, your family, your company, or your organization, by giving in, keeping your head down to escape the attention and wrath of the powers that be, and avoiding a situation in which action is taken against you. But in saving oneself, this simply delays the inevitable for a few, while taking one more point of possible pushback away, and in the current politics of the United States, one more opportunity to preserve Constitutional protections.

So the correct action is to push back, and to do so standing together. Slowly, but surely, the administration’s fight to control the legal profession will fail if firms refuse to cooperate. The courts – the wheels of justice – may move slowly and take time to sort things out, but they can and will grind down the efforts that would seek to control the legal profession and make America’s lawyers the servants of Donald Trump.

The words of Benjamin Franklin, which he said at the signing of the Declaration of Independence, offers some needed wisdom and inspiration for the American people and institutions seeking to preserve their own freedom: “We must all hang together or most assuredly we shall all hang separately.”