Covington Revenge Deepens Worries of Defending Trump Targets (1)

President Donald Trump’s decision to punish Covington & Burling for representing former Special Counsel Jack Smith will feed some firms’ worries about letting lawyers volunteer to represent former Justice Department attorneys.

Private attorneys seeking to represent DOJ workers being forced out or investigated had already faced pushback from their firms’ executive committees over concerns such work will hurt their brands and cut into billings, according to interviews with 12 attorneys.

Some firm leaders, citing corporate clients threatening to walk if they get crosswise with Trump, have rejected outright or put up roadblocks to partners seeking approval to represent DOJ lawyers, FBI agents, and other civil servants who’ve faced various forms of attack, three lawyers familiar with the decisions told Bloomberg Law. That was before Trump’s executive order Tuesday pulling the security clearances of Covington lawyers and vowing to cancel any government business with the firm.

“I continue to see as I reach out and recruit lawyers to help me that there is an absolute battle in many of the firms between playing a role or staying out of it,” said Mark Zaid, a national security lawyer who’s been helping Trump’s perceived foes at DOJ and other agencies match with pro bono counsel from large and small shops.

Zaid last month sued on behalf of FBI agents to halt the administration from releasing identities of those involved in Trump-related investigations. He said the problem is pronounced at law firms that have well-established Washington offices and are governed by out-of-town managing partners.

There are Democratic and Republican partners at firms who are “gung ho and really want to play a role in challenging this administration,” but they’re getting pushback from leadership, Zaid said. It’s typically over the unprofitable time suck of pro bono matters and the potentially negative public relations impact on existing and prospective clients, added Zaid, who himself had his security clearance pulled by Trump earlier this month.

The attorneys declined to name law firms due to the sensitive nature of internal deliberations.

‘Wakeup Moment’

The tension within firms is only expected to grow as the administration continually fires, reassigns, and probes career workers.

Individual attorneys want to enter what they see as a nonpartisan battle to preserve democracy by filing merit systems complaints for terminated federal employees, representing Jan. 6 prosecutors under investigation from DOJ and Congress, or participating in litigation to halt Trump policies. Firms’ senior decisionmakers, however, agonize about the sustainability of representing current and former government employees opposite the administration, according to multiple attorneys.

Such strain isn’t new, but one Big Law partner said he’s never witnessed this level of concern in which firm leadership worries they could jeopardize their economic future by protecting the rule of law.

The lawyer, speaking on condition of anonymity to avoid facing retaliation, said his firm is fully behind his pro bono representation of civil servants, at least for now, but that the Covington development may very will change the calculus.

Others supporting DOJ workers said they feel surprisingly encouraged about the number of Big Law attorneys who’ve gotten permission to work on these matters for free or for reduced contingency fees.

“I am seeing from individual attorneys who are former DOJers a real wakeup moment with the Thursday night massacre” in which multiple prosecutors resigned over leadership’s order to dismiss charges against New York’s mayor, said Erica Newland, who leads Protect Democracy’s civil service protection project. “They are enraged and understand the existential nature of the threat for both the culture and norms of the Department of Justice.”

Zaid said that some Big Law partners have found a workaround when firm leaders block their involvement. They’ve continued supporting the cause in the background, while letting lawyers from other firms sign court filings, he said. This can protect the reputation of white collar defense partners when later advocating for corporate clients, such as in urging DOJ to decline prosecution.

Other lawyers said the anxiety isn’t only felt by leadership. Some Big Law partners said they’re balancing a calling to support former colleagues at DOJ with their concerns that doing so may disadvantage their clients when they mount appeals to the department to close a case without charges.

Trump-Aligned Firms

Adding to firm leaders’ concerns is that a few competitors have warmed up to Trump, a significant turnabout from when much of Big Law shunned the president following the Jan. 6 Capitol insurrection.

A team of defense lawyers at Sullivan & Cromwell have taken over as Trump’s lawyers to appeal the president’s criminal conviction for hiding a $130,000 payment to adult film star Stormy Daniels. Jones Day, after previously winding down its Trump business, began to inch its way closer to Trump’s orbit before the election, and is now pitching itself to companies and executives as the go-to white collar practice to convince DOJ to ease up enforcement.

Sullivan & Cromwell adding Trump as a client raised eyebrows at other firms known for representing corporations under DOJ investigation. The risks of losing current or future clients to Trump-aligned firms has been squarely on the minds of executive committees grappling over whether to bless pro bono work for Trump’s DOJ targets, said several attorneys, who like other people interviewed were granted anonymity to speak candidly.

Working on these cases pro bono complicates matters because it puts the onus of the bill onto the firm ultimately, said New York Law professor Stephen Gillers. Some firms don’t want to cultivate any type of partisan reputation out of fear of turning off existing and new clients.

“On the other hand, some firms may want to be known as a Trump or Biden firm because of the potential client pool that will attract,” he added. “So it goes both ways.”