The Trump administration is ordinarily quick to appeal its losses. When courts in recent weeks blocked President Trump’s tariff plans and his takeover of National Guard troops in California, government lawyers filed appeals within hours. The administration has also filed 19 emergency applications with the Supreme Court since the president took office.
But administration lawyers have done nothing to challenge a series of stinging rulings rejecting Mr. Trump’s efforts to punish prominent law firms for what he called “conduct detrimental to critical American interests” by representing clients and causes not to his liking.
The administration’s unconventional litigation strategy is telling, said W. Bradley Wendel, a law professor at Cornell who is an authority on legal ethics.
“They knew that these were losing positions from the beginning and were not actually hoping to win in court, but rather to intimidate firms into settling, as many firms did,” he said. “Now that they have racked up the four losses in district courts, it is not surprising that they are not appealing, because I don’t think they ever thought these were serious positions.”
Three rulings permanently blocked Mr. Trump’s executive orders in cases brought by law firms that chose to fight: Perkins Coie, Jenner & Block and WilmerHale. A judge has temporarily blocked a fourth executive order, against Susman Godfrey, and will almost certainly strike it down.
But many more firms chose to capitulate to Mr. Trump’s demands in the face of threats to lift security clearances, cancel contracts and bar entry to government buildings. Among the firms that promised to provide a cumulative total of many hundreds of millions of dollars in pro bono representation to causes favored by the administration were Paul Weiss, Skadden and Latham & Watkins.
Harold Koh, who is a professor at Yale Law School and its former dean, said the administration’s lawless attacks had been rewarded.
“The Trump administration probably feels like it has already succeeded beyond its wildest dreams,” he said. “It never expected such capitulation. Through blatantly unconstitutional actions, it extracted deals from nine leading law firms for approaching $1 billion in coerced pro bono legal services and has chilled litigation and public opposition from law firms nationwide.”
In a speech in April, Mr. Trump also seemed a little surprised by how successful his tactics had been.
“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,” the president said. “But they give you $100 million and then they announce, ‘We have done nothing wrong.’ And I agree: They’ve done nothing wrong. But what the hell. They’ve given me a lot of money, considering they’ve done nothing wrong.”
Precisely what the firms that settled have agreed to do is a bit mysterious. Though the deals were struck by some of the most sophisticated lawyers in the nation, they do not appear to have taken the form of conventional contracts.
In response to a congressional inquiry, lawyers at the firm Allen Overy Shearman Sterling, which settled for $125 million, said, for instance, that “the complete terms of the agreement” were contained in a social media post from Mr. Trump.
A federal judge, Beryl A. Howell, questioned a lawyer for the government about the matter at an April 23 hearing. “Are the precise terms of the deals cut with the law firms and President Trump written down or memorialized in some way?” she asked.
The lawyer, Richard Lawson, said he did not know much beyond “what I have read in the papers.”
Two weeks later, having had a chance to look into the matter, Mr. Lawson was asked a similar question by Judge Loren L. AliKhan in a different case.
“Do you know if the agreements with the firms that entered into agreements are written agreements?” the judge asked.
“I know of nothing beyond, I think, the generally publicly available information,” Mr. Lawson said.
The judges who have ruled on the executive orders said they were plainly unconstitutional. Just last year, they noted, the Supreme Court unanimously ruled that the First Amendment does not tolerate the use of government power to punish or suppress views the government disfavors.
Still, Professor Koh said, the administration’s litigation strategy, and notably its failure to appeal its losses, has been cynical but effective.
“Its legal arguments have been resoundingly rejected by all lower courts who have ruled, so why appeal and have that illegality confirmed?” he asked. “It could only weaken the administration’s posture.”
“All the more reason,” he added, “why the nine firms who ‘settled’ should now renounce the coerced deals and make clear that they still control their own pro bono case selection.”
Adam Liptak covers the Supreme Court and writes Sidebar, a column on legal developments. A graduate of Yale Law School, he practiced law for 14 years before joining The Times in 2002.
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