On March 25, 2025, President Donald Trump issued an executive order entitled “Addressing Risks From Jenner & Block,” the firm where I am a partner (though I write this article in my personal capacity). Among other things, the executive order limits “official access from Federal Government buildings to employees of Jenner,” limits “Government employees acting in their official capacity from engaging with Jenner employees,” and requires “Government contractors to disclose any business they do with Jenner and whether that business is related to the subject of the Government contract.” The president has issued similar executive orders against other law firms as well, with additional executive orders reportedly still to come.
Three days later, Jenner, represented by another law firm, Cooley, sued the government in the U.S. District Court for the District of Columbia. That same day, the district court granted Jenner’s motion for a temporary restraining order. As a result, the bulk of the executive order is currently not being enforced. Jenner was not the only law firm to have been on the receiving end of one of these executive orders. Two other firms—Perkins Coie and WilmerHale—are pursuing similar challenges and have obtained similar temporary restraining orders. In all three cases, federal judges found that these orders likely violate the Constitution.
On our firm’s official website, we say, “For more than 100 years, Jenner has stood firm and tirelessly advocated for our clients against all adversaries, including against unlawful government action. We once again go to court to do just that. To do otherwise would mean compromising our ability to zealously advocate for all of our clients and capitulating to unconstitutional government coercion, which is simply not in our DNA.” It gives me goose bumps when I read that, because it’s absolutely true. I’m so proud that our firm—leadership, partners, associates, and staff—is sticking together and doing the right thing.
Other law firms have followed a different path. The president recently withdrew an executive order against one firm after it agreed to, among other things, dedicate $40 million of pro bono time to what the president referred to as “mutually agreed projects” that “support the Administration’s initiatives.” Since then, in an apparent effort to avoid similar executive orders, several other law firms have preemptively agreed to commit $100 million or $125 million to pro bono initiatives supported by the government.
As more firms face the prospect of executive orders, more of my colleagues in the bar will face the same choice: sue or settle? They should sue.
For starters, the executive orders are unconstitutional. They violate the First Amendment right of lawyers and their clients to speak, petition, and associate. They are also designed to discourage lawyers from representing unpopular clients—even clients with meritorious cases—and in so doing, they profoundly distort the judicial system. If anyone should be standing on principle and attempting to vindicate the rule of law, it is our nation’s lawyers.
But the reasons for suing go beyond that. To zealously represent their clients, law firms must remain genuinely independent from government. A law firm that settles with the government is no longer independent from government—particularly where, as here, the settlements give the government de facto veto power over which cases the law firm chooses to take on.
At core, these settlements reflect deep cynicism—cynicism towards the law firm’s own clients, presuming that they would prefer a law firm that cuts a deal with the government over one that maintains its ability to provide independent, uncompromised advice, and cynicism toward America’s justice system, presuming that it is so toothless that the law firm would be better off capitulating than suing even if it prevails. Lawyers should be optimistic about both the clients we exist to represent and the justice system we are sworn to uphold.
It is well established that “the First Amendment prohibits government officials from retaliating against individuals for engaging in protected speech.” The order retaliates against Jenner for engaging in protected speech. According to the order, Jenner must be punished because it engaged “in obvious partisan representations to achieve political ends,” such as representations on behalf of immigrants and transgender people. Legal advocacy is a form of speech. Jenner is being punished for speaking.
The First Amendment’s petition clause separately protects the right to petition the government for redress of grievances, which includes the filing of lawsuits. Indeed, as the Supreme Court has emphasized, the right to petition is “one of the most precious of the liberties safeguarded by the Bill of Rights.” Retaliating against Jenner because it purportedly filed lawsuits to “achieve political ends” is anathema to the First Amendment.
The First Amendment also prohibits the government from discriminating on the basis of viewpoint. The executive order does just this. Immigration and transgender rights are areas of intense social debate. The order openly targets Jenner because it represented clients who had viewpoints on these issues with which the current government disagrees.
The order also targets Jenner because of its previous affiliation with Andrew Weissmann, a former member of Robert Mueller’s team who has frequently criticized the president, both in a book and on television. The order states that Weissmann’s “overt demand that the Federal Government pursue a political agenda against me” shows his “dishonesty.” And it assails Jenner because Jenner stated years ago that it was “thrilled” to have Weissmann as a partner. According to the order, Jenner’s decision to associate with Weissmann is a “concerning indictment of Jenner’s values and priorities.” The First Amendment does not permit the government to retaliate against a law firm (or anyone else) based on its perceived “values and priorities”—particularly when the government is inferring those “values and priorities” from the law firm’s constitutionally protected decision to associate with a person whose political views differ from the president’s.
Not only does the order retaliate against Jenner for its prior exercise of its First Amendment rights, but the order’s retaliatory measures are themselves First Amendment violations. Its restrictions on access to government buildings and on interacting with government employees—if ever enforced—would make it impossible for Jenner to exercise the constitutionally protected right to petition the government for redress of grievances.
Furthermore, a “fact sheet” accompanying the order explains why it requires government contractors to disclose business with our firm: “To ensure taxpayer dollars no longer go to contractors whose earnings subsidize activities not aligned with American interests.” In other words, the executive order—should it ever be implemented—would compel contractors to disclose their association with their chosen counsel as a means of deterring contractors from retaining that counsel. That compelled disclosure, for the purpose of deterring contractors’ exercise of their right to freely associate, violates the First Amendment.
The order also violates the Fifth Amendment’s protection of Americans’ right to due process, for both Jenner and our clients. I’ll start with Jenner. Due process requires the government to provide notice and a hearing before it imposes punishment. That did not happen here. There was no notice. There was no hearing. Instead, the executive order was issued based on the president’s unilateral decision that Jenner had done something wrong.
The due-process clause also requires the government to give citizens advance notice of what actions may trigger punishment. (This is why laws can be struck down for vagueness.) What advance notice did Jenner have? Indeed, even after this order, what advance notice do other law firms have? What types of representations or affiliations will trigger the next executive order? No one knows.
The due-process clause also guarantees our clients’ rights to legal representation. Without the temporary restraining order, it would not be possible for Jenner to represent its clients in dealings with the government when there is an executive order that bans Jenner lawyers from government buildings and that bans government officials from speaking to us. And forcing our clients to disclose the fact that they have retained us invades the attorney-client privilege. For similar reasons, with respect to criminal defendants, the executive order violates the Sixth Amendment right to counsel.
The government might say that our clients have the option of terminating their relationships with us and hiring other lawyers. But the Fifth and Sixth Amendments protect a client’s right to be represented by the lawyer of his choice, rather than being limited to lawyers whose viewpoints align with the government’s.
Moreover, the purported opportunity to hire other lawyers is illusory. The executive order calls out our pro bono representations of disfavored clients for the express purpose of deterring other law firms from taking on similar representations. What law firm would take on a pro bono case—or any case—if the consequence of taking that case would be a potential executive order attacking the firm? The order’s purpose and effect is to strip unpopular litigants of any access to legal representation from law firms, even if they have meritorious claims.
The executive order also violates the equal-protection component of the due-process clause. Abundant case law holds that the government may not single out particular entities for adverse treatment based on animus. That is exactly what the executive order does. It declares that our firm has done pro bono work and is affiliated with an ex-partner whom the administration doesn’t like, and therefore singles us out for adverse treatment.
In addition to violating multiple provisions of the Bill of Rights, the executive order is inconsistent with the Constitution’s structure and the separation of powers. There is no constitutional basis for this action. Article II states that the president “shall take care that the laws be faithfully executed.” What “law” is being “faithfully executed” here? No constitutional provision, statute, or regulation authorizes such an action. To the contrary, the concept of a “law” that authorizes the president to unilaterally retaliate against his political opponents without due process is antithetical to the American tradition.
The separation-of-powers concerns are obvious. The judicial system cannot function unless lawyers can defend their clients without fear of government retaliation. Every court has the authority to take appropriate action if a lawyer acts improperly in a particular case. Unilateral executive action retaliating against a law firm for representing clients—for the unapologetic purpose of deterring lawyers from making arguments in litigation with which the president disagrees—impedes the judicial process. Worse, the order deters suits on only one side of contentious social debates. If you want to represent clients whose views align with the government’s, you can litigate to your heart’s content. If you want to represent clients with opposing views, the government will come after you.
One final point on the legal questions. The government must have known that the executive order would fail in court—not only is it plainly unconstitutional, but a federal judge had already enjoined the virtually identical executive order directed at Perkins Coie. Yet it was issued anyway. Why? I have to conclude the government has made an assessment that any law firm would be so cowed that it would refuse to litigate regardless of the merits of its claim. The implicit message of the executive order is: Even if you win, the justice system cannot save you. At its core, the executive order is a bet on our justice system’s failure.
The multimillion-dollar settlements other law firms have reached with the government are wrong. I am not saying this because I valorize impact litigation by large law firms, which I recognize does not inherently advance the public interest even if it may sometimes be worthwhile. Instead, the problem is this: When a law firm agrees to dedicate many millions of dollars to “support the Administration’s initiatives” via “mutually agreed projects,” it cedes control over a piece of the law firm to the government. “Mutually agreed” means the government has to agree. But law firms are private organizations. The partners own the firm. The partners, not the government, decide what pro bono cases to take. I view it as unacceptable to have to turn over a piece of our firm to the government in exchange for lifting unconstitutional government restrictions.
Worse, the consequences of settlements between a law firm and the government cannot possibly be confined to millions of dollars in “mutually agreed” pro bono work. All aspects of the firm’s legal work will be irrevocably compromised.
Look at the president’s statement after one of the recent settlements. He announced: “The President continues to build an unrivaled network of lawyers.” He is correct. Any law firm that settles effectively joins the government’s “unrivaled network of lawyers.”
I am also struck by the president’s remarks last week:
Have you noticed that lots of law firms have been signing up with Trump? $100 million, another $100 million, for damages that they’ve done. But they give you $100 million and then they announce that, “but we have done nothing wrong.” And I agree, they’ve done nothing wrong, but what the hell, they give me a lot of money considering they’ve done nothing wrong. And we’ll use some of those people, some of those great firms, and they are great firms, too, they just had a bad moment. But we’re gonna use some of those firms to work with you [the coal industry] on your leasing and your other things, and they’ll do a great job. I think they’re going to do a fantastic job.
As well as the White House press secretary’s statement, also last week:
Big Law continues to bend the knee to President Trump because they know they were wrong, and he looks forward to putting their pro bono legal concessions toward implementing his America First agenda.
These statements accurately describe both the intent and the effect of the settlements: to conscript private law firms into doing the government’s work, or at least not to do any work that the government might perceive as inconsistent with its interests.
If you asked me to summarize the key to a free society while standing on one foot, I would say: “a robust private sector that is truly independent of the government.” Free enterprise cannot be free when the government demands that private organizations conduct “mutually agreed projects”—or else face government retribution. And this concern is heightened in the context of private law firms. All criminal litigation, and much civil litigation, pits private citizens against the government. The justice system cannot function unless those private citizens are vigorously represented by counsel—which cannot happen unless that counsel is genuinely independent of the government.
In joining this “unrivaled network of lawyers,” law firms forfeit their identity as independent organizations. Remember that the purported “deals” are not, in fact, deals. There is no binding contract. They are written in pencil. The president retains the same legal authority to impose a new executive order at any time.
As a result, I don’t understand how a law firm that enters into one of these non-deals can ever represent clients in any legal work that involves the government. Every time its lawyers file a brief, they will think: On the one hand, I have to represent my client, but on the other hand, I have to make sure not to undo the deal.
The firm might pretend it is defending its clients zealously. It might file legal briefs making all manner of legal arguments. But what if a lawyer uncovered information that made the government look bad? There would be massive pressure to look the other way. Maybe the lawyer would try to offer some explanation to his client as to why it’s strategically best to set the issue aside. But there would always be a question mark in the client’s head: Is my lawyer saying this because he believes it—or is the lawyer saying this because he’s trying to preserve his law firm’s settlement with the government?
Crucially, the executive orders against all of the affected firms explicitly call out the firms for the positions they took in litigation. As such, to preserve the deal, a firm that settles with the government has a strong incentive to pull punches in litigation. In every case in which the government has an interest, the firm has a conflict of interest.
Many lawyers at the settling law firms disagree with their firm leadership’s decision to settle. But agree or disagree, they are subject to the same conflict of interest. Partners at law firms have fiduciary duties not only to their clients, but also to one another. They also have strong personal interests in not doing anything that would undermine the firm’s delicate position.
When I say that a settling firm can’t represent clients in work involving the government, I’m not just talking about litigation against the government. I’m talking about any practice—regulatory, contract negotiation, anything—involving the government. Firms can and do have productive and respectful relationships with the government. Neither law firms nor businesses can function if they are constantly at odds with regulators. But in any interaction with the government, a private law firm can always maintain the implicit position that, if things go south, the law firm can defend its client in court. A law firm committed to a “deal” with the federal government can’t say that anymore.
And the conflict-of-interest concern goes beyond cases involving the government. The concern extends to any representation of any kind in which the government has an interest.
In any matter in which the government is interested—even a matter that does not directly involve the government—a law firm that settles will serve two masters. One is the law firm’s client. The other is the government. Suppose your law firm represents a client in a high-stakes lawsuit. On the other side of the case is a company that the government favors—either because it has explicitly come out in support of the government or because the government has politely persuaded it to undertake “mutually agreed projects.” How can you possibly represent your client zealously?
I also have more fundamental objections to the settlements.
Look at some of the litigants who have stood their ground to vindicate First Amendment rights for the benefit of not only themselves, but everyone. In West Virginia State Board of Education v. Barnette, from 1943, the plaintiffs were 8-year-old Marie Barnette and 11-year-old Gathie Barnette, Jehovah’s Witness schoolchildren in West Virginia who refused to salute the flag based on their interpretation of the Book of Exodus. In Tinker v. Des Moines Independent Community School District, from 1969, the plaintiffs were 15-year-old John Tinker, 13-year-old Mary Beth Tinker, and 16-year-old Christopher Eckhardt, schoolchildren in Iowa who were suspended when they wore black armbands to protest the Vietnam War. These people were children, from religious or ideological minorities, who must have faced extreme pressure, hostility, discrimination, and fear as their cases winded their way through the courts. They prevailed and secured constitutional rights that Americans now take for granted. If those litigants can stand their ground, the nation’s largest law firms can too.
Challenging the executive order follows from the oath lawyers take to support the Constitution when we join the bar. The Constitution does not mean much unless the rights it protects are exercised. By bringing suit, law firms exercise their own constitutional rights. They also protect the constitutional rights of their clients to retain counsel that will defend them zealously. And they set a precedent that will make it easier for other, similarly affected firms to bring their own lawsuits, thus advancing constitutionalism across the legal profession.
Further, the executive order creates a chilling effect that will make it difficult for litigants with disfavored viewpoints to find counsel. Those litigants have the constitutional right to petition for redress of grievances like everyone else, and they cannot exercise that right unless they can find a lawyer willing to defend them. Bringing suit—and contributing to a legal culture in which law firms are willing to defend themselves—protects those litigants’ access to the courts.
I don’t think any lawyer, even lawyers at the firms that settle, thinks these executive orders are constitutional or that the settlements are virtuous. Instead, they view settling as a necessary evil designed to protect the firm’s fortunes. But that perspective reflects a profoundly cynical view of a law firm’s own clients. The theory behind settling is that what clients really want is a law firm that folds in the face of unconstitutional coercion, ostensibly to get into the government’s good graces, rather than a firm that stands up for its right to remain independent from the government. Law firms should have more faith in the people they represent than that.
Settling demonstrates cynicism not only about a firm’s clients, but also about the justice system. Three law firms have sued, and all have quickly obtained temporary restraining orders. Yet other law firms are preemptively capitulating anyway.
Such settlements reflect a view that prevailing in litigation and obtaining a court order will lead to no real relief, and all that matters is public perception regardless of the outcome of judicial proceedings. I don’t think law firms, of all institutions, should be so dismissive of our justice system. And that cynical attitude by law firms will contribute to cynicism by the public. How can citizens not be cynical when they see these highly sophisticated and successful firms, ostensibly devoted to protecting the rule of law and being brave warriors for their clients, fold instantly?
By contrast, bringing suit reflects optimism in our justice system’s ability to right legal wrongs when litigants bring meritorious claims. If the executive order is a bet on the failure of our justice system, then bringing suit is a bet on its success. I will always place my chips on the side of the American justice system, and I hope other law firms do the same.
This article was adapted from a post on Adam Unikowsky’s Substack, Adam’s Legal Newsletter, which he writes in his personal capacity.
The post Why My Firm Is Standing Up for the Constitution appeared first on The Atlantic.
