In his chaotic attempt to dismantle democratic governance, redefine citizenship and cast aside fundamental rights of speech and due process, President Trump has all but declared war on one of the most effective forces to stand in his way: America’s legal institutions.
He has moved to purge the Department of Justice of all but those he perceives as loyal to him personally, demanded changes to law school curriculums, called with increasing furor for the impeachment of judges with whom he disagrees, attacked by name public-interest attorneys and bar associations that oppose his policies, and inched perilously close to defying court orders outright. In recent weeks Mr. Trump has also gone after the nation’s leading law firms — Covington & Burling; Perkins Coie; Paul, Weiss; and many more — with measures meant to hobble their ability to do business.
Of all of the American legal institutions now facing sustained attack, none would seem better positioned to push back against Mr. Trump’s strongman tactics than this class of wealthy and politically connected firms, known collectively as Big Law. Counsel to the world’s most powerful corporations, they are engaged in every sector of the marketplace and central to ensuring that the United States and global economy continue to spin. Yet where many ordinary judges, law school deans and public interest attorneys of both political parties have found the courage to push back against Mr. Trump’s anti-constitutional histrionics, Big Law has largely stayed silent or worse.
These firms face a classic problem of collective action: Every individual firm has an incentive to keep quiet, but if everyone stays silent, all will lose. The problem is understandable. It is also solvable. It requires firms to find the courage to act together.
Covington & Burling, the white-shoe Washington-based firm, was first to be targeted by the president. Its offense: having provided pro bono legal work for Jack Smith, who led the federal prosecution against Mr. Trump for his attempt to overturn the results of the 2020 election. On Feb. 25, Mr. Trump issued an executive order that suspended the security clearances of Covington lawyers who had anything to do with Mr. Smith’s representation and directed federal agencies to end any business with the firm. The firm has had virtually nothing to say in response.
Perkins Coie likewise attracted Mr. Trump’s ire for having represented Hillary Clinton during her 2016 presidential campaign. He ordered a review for any government contracts with the firm, while also effectively barring its lawyers from federal buildings and stripping them of security clearances — potentially disabling sanctions for a firm whose clients have included major defense contractors like Boeing, Microsoft and Northrop Grumman. To its credit, Perkins Coie decided to mount a defense, and turned to Quinn Emmanuel, an equally prestigious Los Angeles-based firm, to lead it. According to a Times report, Quinn Emmanuel balked. (The firm Williams and Connelly has taken the case.) Since then, other firms have reportedly declined to sign an amicus brief on Perkins Coie’s behalf.
Most stunning of all, Paul, Weiss, one of the most venerable firms in the world, elected last week to strike a deal with Mr. Trump, agreeing, among other things, to contribute tens of millions of dollars worth of pro bono services to some of the president’s favored causes. The firm’s chair later explained it did so because clients were getting spooked and other firms — rather than rallying to Paul, Weiss’s defense — began “aggressively soliciting our clients and recruiting our attorneys.”
The choice by these firms to accommodate Mr. Trump’s attacks, either through action or silence, is deeply wrong. It weakens the rule-of-law system on which all Americans depend — a system in which the rules are publicly known and set in advance, not subject to the whims of arbitrary vendettas. It equally hastens America’s slide from a system of constitutional democracy, in which executive power is constrained by multiple independent institutions, to a regime of fiat akin to those authoritarian governments our country has long stood against.
The choice is misguided as a business strategy, too, compromising attorney ethics, which can expose them to discipline by bar associations and courts, and giving clients ample reason to doubt that the firms will act unflinchingly in their defense. Above all, it is futile, as it will do nothing to protect the firms from the extortion-based governance we now appear to face for at least the next four years.
Mr. Trump’s tactics against Big Law and other legal institutions seem clearly aimed at demonstrating there is no law but whatever deal the president is personally willing to strike, indeed no law but Trump. Such a vision cannot be reconciled with the idea of individual rights nor with the idea that ordered rules, not raw power, constrain the behavior of the people and their governors alike.
More to the present point, it cannot be reconciled with the obligation of contract, the foundation of the global economy. America’s commitment to the rule of law has been the rock on which all of the nation’s business interests depend. Its stability is a central reason investors from around the world long flocked to our shores. If that stability gives way to a system in which it is no longer possible to rely on or even to know the rules of the game, no one stands to lose more than the corporate clients these law firms represent.
It’s not hard to see why these firms may have decided to cede to Mr. Trump’s power grab. Partners have fiduciary obligations to their peers and employees. If the firm can just avoid open antagonism of the governing regime, the thinking may go, then it will survive until the turbulence subsides. Paul, Weiss’s chairman, Brad Karp, has repeatedly tried to assure his firm that the arrangement he struck was consistent with the principles that have guided the firm for its 150-year history.
Yet the deal Mr. Karp described to his colleagues differed markedly from the one the president announced. Mr. Trump’s version has the firm acknowledging both the “wrongdoing” of Mark Pomerantz, a former partner who explored a criminal case against Mr. Trump while working for the Manhattan district attorney, and the “grave dangers of Weaponization, and the vital need to restore our System of Justice” that Mr. Trump has long complained were used against him. Whatever Mr. Karp believes he agreed to, the president plainly does not share his view.
It is wrong to imagine such a deal could safeguard the interests of the commercial clients on which these law firms depend. And it is foolhardy to imagine these clients can go four years without taking any position that rankles this administration.
Take Citigroup, which has been a client of Paul, Weiss. Its subsidiary, Citibank, already finds itself in litigation over the administration’s (almost certainly unlawful) effort to impound spending on Congress’s greenhouse gas reduction initiatives. In service of that impoundment, the Trump administration demanded Citibank freeze billions in funding for nonprofits. If a court orders Citibank to unfreeze the funds, which side will it take, the administration’s or the court’s? Or consider Verizon, a client of Quinn Emmanuel. Verizon seems on the verge of being nudged out of its $2.4 billion contract with the Federal Aviation Administration because Elon Musk has reportedly decided that his business, Starlink, is more deserving of the work. Does sound counsel require advising Verizon to just let that one go?
Corporations from Coca-Cola to Ford have been affected by Mr. Trump’s tariffs. They may well hope to negotiate their way out of the worst of the economic damage. But if those negotiations fail, or if the president’s promises prove as erratic as his tariffs, will the storied firms that represent these companies fight hard for their interests? Or will the firms push them to accept a lesser compromise, in the hopes of protecting themselves against presidential wrath?
Big Law’s parallel hope — that the courts will save them from having to take the worst of the administration’s direct heat — has already been proven unavailing. When Mr. Trump issued his extraordinary order blackballing Perkins Coie, a Federal District Court in Washington moved with remarkable efficiency to block key parts of the order from taking effect. But even assuming that the court’s temporary judgment survives the coming appeals — and that the administration complies with it — the damage is already done.
Many of Perkins Coie’s clients jumped ship on the basis of the initial order alone. And the court’s opinion clearly did nothing to slow Mr. Trump down. Just two days after being told that parts of the first order were unlawful, he issued his nearly identical order against Paul, Weiss. Three days after that, Mr. Trump’s Equal Employment Opportunity Commission announced it was now looking into “D.E.I. practices” at 20 more firms, a list no longer limited to those firms with Democratic connections.
Over the weekend, Mr. Trump issued the broadest attack yet, ordering the attorney general to seek punishment for any lawyer or firm that takes a position in litigation the administration deems “unscrupulous.” In the climate of fear reinforced by Paul, Weiss’s actions — and other firms’ silence — threats alone are enough to drive away any firm’s business.
Another excuse circulating among Big Law lawyers is that speaking out won’t make a difference either way. Perkins Coie, after all, won its case without the broad support of its peer institutions.
That argument misses the point. Coming to Perkins Coie’s defense isn’t a decision about litigation strategy. It is about standing up to the administration’s intimidation. Signing on to joint briefs is not the only way to do that. Fellow firms and their clients could contribute to a joint defense fund, to help defray the costs of litigation and lost business for those on the receiving end of Mr. Trump’s score-settling wrath.
The point is for Big Law to do something — anything — as a group to demonstrate that they will continue to place their obligations to their clients and to the law above their fear of the bully. Solidarity can prove that point. And it can shore up the hope we all retain that the world’s strongest economy and oldest democracy will not both, simultaneously, fall.
The excuses made for Big Law’s silence are of course not limited to Big Law. The same collective action problem no doubt informs the discussions taking place inside the corner offices of the firms’ corporate clients, in the boardrooms of major media enterprises, at the gatherings of university trustees. The solutions to such problems are limited. But one tried and true approach remains clear: joining forces to fight back.
The post They Are America’s Most Powerful Law Firms. Their Silence Is Deafening. appeared first on New York Times.
