Lawyers Face Hard Choices About Taking Cases That Irk Trump

President Donald Trump’s recent actions targeting attorneys at two major international law firms demonstrate the prominent role that lawyers can play in containing and perhaps frustrating the Trump tsunami that has rolled through Washington, D.C., and the world over the last two months.

In recent days, Trump has issued an order targeting attorneys and employees at Covington & Burling who worked on the Jack Smith case, revoking their security clearances, and barring them from federal work. An executive order attacking the firm of Perkins Coie went even further, revoking the clearances of attorneys there, canceling contracts with the firm, limiting their access to federal buildings, and directing federal employees to limit their contact with the firm.

Trump’s beef with the firm dates back to 2016, when two lawyers there (both of whom have left the firm) played roles in contracting a firm to investigate possible ties between the Russian government and Trump’s first presidential campaign. Trump’s assault on lawyers doesn’t stop there—federal prosecutors who worked on the investigation of Mayor Eric Adams were reportedly recently placed on leave.

The first thing we do, let’s investigate all the lawyers.

The president isn’t going after his rivals as promised on the campaign trail, but the lawyers of his rivals. In doing so, he sends a clear message to those who might be thinking about representing clients opposing Trump or his friends—fight me, and I’ll come after you too.

Picking fights with lawyers is tricky business. As a whole, they’re smart. Some may stay quiet out of fear of retribution, but many are fighters. You can’t control them by threatening to run someone against them in a primary. They’re not beholden to constituents or haunted by the political downfall of Liz Cheney.

They know their rights, and they fight their battles in their home court—a courtroom in front of a judge who is also lawyer—and who also enjoys substantial protections against retribution. When attacked, lawyers will often work for free to defend themselves and the causes they believe in. In fact, given the loud silence that speaks volumes coming from both sides of the aisle on Capitol Hill, lawyers and judges may be the most formidable opposition that Trump now faces to this agenda.

Covington and Perkins Coie will undoubtedly fight back. That said, it’s not clear how Covington and Perkins Coie will fare in their legal challenges to Trump’s executive orders. As vindictive and unfair as Trump’s actions may appear to be, it’s also true that presidents enjoy wide powers in the area of national security. They enjoy tremendous latitude in deciding who should get government contracts. There are no obvious due process protections when it comes to maintaining a security clearance or accessing a restricted federal building.

But there’s a bigger issue in all this mayhem—for centuries, lawyers have enjoyed considerable freedom from consequences in deciding who they will represent, even if the defendant is accused of the most heinous crimes. Everyone is entitled to a good defense and fair trial—the sins of a client rarely rub off on the lawyer, whose work even in helping the guilty retains an air of nobility.

Trump’s actions change all that, and lawyers now have to think about their brand, and the prospect that one day they might have to change seats at the table, from the representor to the represented, if they choose the wrong side. Do you take cases attacking the actions of the Trump administration, or defending them? Do you work with companies that have lined up on the left, or the right? In today’s environment, some law firms may try to stay above the fray and take cases on both sides—good luck. Or stay away from the fray altogether, in the safety of cases that have no real political implications. Or they can dive in, motivated by principle, choose a side, and accept that they will become the darling of one end of the ideological spectrum, and a pariah of the other.

The decision about where to stand is a big decision with long range consequences and potentially “bet the firm” risks. There will be “MAGA” law firms, and “opposition” law firms. Within a firm, how do you pick a side? It’s a decision that is challenging in today’s mega-firm environment, with thousands of lawyers with diverse political perspectives working in countries around the world. One of your lead partners might have strong ties to the new administration, and there’s big money to be made. Some of your young associates might be enthusiastic about the prospect of making America great again by lining up and doing the work. Colleagues in Canada, Mexico, and Europe might be up in arms about seeing the firm go in that direction. Others are worried about what being associated with a firm who takes such cases will mean for their careers long term, and the potential for retribution if the firm takes the wrong case. There’s a new case on the table at the partner meeting—it may pass the “conflicts” check but maybe not the moral conflict check. Take the case?

And then there are the Department of Justice lawyers. I was a young DOJ lawyer, just out of a clerkship, when the political appointee for my branch came down the hall with a file and asked me if I wanted to take the case. It was a constitutional challenge to President Ronald Reagan’s plan to drug test federal employees in sensitive positions such as air traffic controllers, or customs agents intercepting narcotics. It was a big case, fraught with politics and a civil rights debate; it was a case that would stick with me for the rest of my career, for better or worse, and define my brand as a lawyer. I took the case because I believed deeply that it was doing right, doing justice.

Right now, there are probably political appointees at the DOJ walking through the halls with files. Maybe it’s a case from the ironically named Weaponization Working Group. Maybe they ask, or maybe they simply say—here’s your case. A case that might align with your values or might not. A case that will follow you and even define your career, a case that could one day put you under the microscope, make you a target, dictate where you will and won’t be able to work. You take the case, or you resign. Choose wisely.

Rob Chesnut consults on legal and ethical issues and was formerly general counsel and chief ethics officer at Airbnb. He spent more than a decade as a Justice Department prosecutor and he writes on in-house, corporate, and ethics issues.

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