The effort by the Trump administration to penalize major law firms descended into black comedy this week. Last year, four judges ruled that the executive orders targeting the firms were unconstitutional, and months ago the Department of Justice announced plans to appeal.
But on Monday, the Justice Department told the court that it was dropping the appeal; then, on Tuesday, the administration lawyers said they wanted to pursue the appeal after all. The about-face was embarrassing, but it obscured a larger truth of this lamentable episode: President Trump had already won this fight months ago, when the American legal profession — especially its largest and richest law firms — lost. And that’s not funny at all.
The story began last March, when the president issued an executive order imposing sanctions on Perkins Coie, including a ban on its lawyers’ even entering federal buildings, as punishment for the firm’s practice of representing Democratic officials and other critics of Mr. Trump. Similar orders followed, targeting three other law firms: Jenner & Block, WilmerHale and Susman Godfrey.
Hundreds of law firms joined forces and signed a friend-of-the-court brief arguing that the executive orders were unconstitutional, writing that “those orders pose a grave threat to our system of constitutional governance and to the rule of law itself. The judiciary should act with resolve — now — to ensure that this abuse of executive power ceases.”
But what was most notable about the brief was which firms didn’t sign it in support of Perkins Coie. Faced with this existential challenge to the nature of law practice, many of the biggest firms, including such eminences as Cravath, Swaine & Moore, Sidley Austin, and Wachtell, Lipton, Rosen & Katz, preferred to stay silent and leave the defense of their colleagues in the bar to lawyers with less money but more principles.
But worse was to come. When the Trump administration threatened to impose a similar sanction on Paul Weiss, that firm, once a storied name in American law, became the first to surrender to the plainly illegal demands of the administration. After a meeting in the Oval Office with President Trump, Brad Karp, the chair of the firm at the time, decided to grovel and agreed to provide $40 million in pro bono services to the administration as a kind of penalty for its nonexistent wrongdoing.
Paul Weiss became the (red) face of the controversy, but the firms that followed its example may have debased themselves even more. At least Paul Weiss was dealing with an immediate threat of a damaging executive order. Eight other major firms raised white flags to the White House without even being attacked. In quick succession, Kirkland & Ellis; Latham & Watkins; Skadden Arps, Milbank; Willkie Farr & Gallagher, Simpson Thacher & Bartlett, A&O Shearman and Cadwalader, Wickersham & Taft made similar capitulations, and they promised the president a total of nearly $1 billion in legal services. (Kirkland and Latham in 2024 were the first- and second-highest grossing firms in the country, with annual gross revenue of about $9 billion and $7 billion, respectively.)
Fortunately, the judiciary has risen to the occasion. After Perkins Coie, represented by Williams & Connolly, challenged its sanction in court, Judge Beryl Howell, in an aria of an opinion, shut down the executive order and vindicated the courage of those who stood up for what was right. “In a cringe-worthy twist on the theatrical phrase ‘let’s kill all the lawyers,’” she wrote, the executive order “takes the approach of ‘let’s kill the lawyers I don’t like,’ sending the clear message: lawyers must stick to the party line, or else.” The three other penalized firms also won their cases.
By attempting to drop its appeals of these losses in court, the Department of Justice was bowing to reality: the executive orders were plainly unconstitutional and thus doomed on appeal. After the sudden one-eighty, the government lawyers may pursue that legal suicide mission, but the result is preordained. Sooner rather than later, the executive orders will almost surely be consigned to the legal dustbin where they belong.
Still, the likely loss in court should not obscure the nature of Mr. Trump’s triumph in this episode: He forced the largest and purportedly most powerful law firms in the country to demean themselves and bow before him. They proved to be such cowards that they surrendered when the president didn’t even have the law on his side.
Where will all this leave the nine capitulating firms, besides looking ridiculous? They will face the humiliating prospect of delivering on pledges that even the Trump administration tacitly admitted (for several hours, anyway) that it had no right to ask for in the first place. Whether the firms ultimately decide to keep their promises to the government of free services or back out, their clients might wonder about the legal judgment of those who agreed to such awful terms.
To be sure, the firms had their reasons. The nine rely more heavily on corporate work than litigation, and thus their clients had much to fear from a federal government that had veto power over some of their deals, like mergers and acquisitions. Plus, the pay for the top lawyers in these firms can run into the eight figures, and that kind of money can buy a host of rationalizations.
The message of this dismal chapter has broader application than just to law firms. Throughout President Trump’s second term, his administration has presented the same extortionate choices to a variety of targets, including universities and companies, as well as law firms: agree to our unconstitutional demands and sacrifice your principles, or fight back and suffer our wrath in the form of lost patronage and dollars.
At the moment, universities like Harvard and companies like Anthropic are facing the same kinds of choices as the law firms did. Harvard really needs federal research money, and Anthropic really wants federal contracts. Surrender looks — and perhaps even is — the path of least resistance.
But giving in to bullies has its own costs, not least because bullies are never satisfied with just a single capitulation. This is especially true when, as in the case of the law firms, the bully — that is, the Trump administration — was obviously playing a weak legal hand from the start. It’s clear now that the law firms gave in when they didn’t have to, and you don’t have to be a lawyer to see that was a foolish choice indeed.
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