Lawyers Must Not Stay Quiet in Face of Trump Attack on Firms (1)

As the dean of two major law schools, I always told first-year students about the legal profession’s essential role in our democracy—and reminded them at graduation three years later. During the intervening years, our faculty worked to give future lawyers the tools they needed to serve this role effectively and responsibly.

I often wondered how the message came across, and whether the students viewed the legal profession’s claimed relationship to our democracy as pompous, self-serving hot air. The first two months of the Trump administration have quelled any doubts I may have had about the vital importance of that relationship.

It’s no surprise the Trump administration has placed the ethos and values of the legal profession in its crosshairs. It started by eliminating many of the career lawyers at the Department of Justice, before moving on to axing the inspectors general at more than a dozen government agencies, overhauling the leadership of the Judge Advocate General’s Corps across the military, and removing the chief counsel for the IRS.

Government lawyers are the first line of defense in preventing abusive, illegal actions by the government they serve. Former DOJ attorneys such as Danielle Sassoon, Kevin Driscoll, John Keller, Hagan Scotten, and Denise Cheung sounded the alarm by resigning rather than executing the actions Trump officials told them to carry out.

The White House expanded its attack on the legal profession to the private bar, targeting Covington & Burling, Perkins Coie, and Paul Weiss because of representations they undertook that the Trump administration viewed as hostile to the president.

President Donald Trump issued a memo revoking the security clearances for Covington lawyers representing former special counsel Jack Smith and directing his administration to terminate any contracts it has with the firm.

He went a step further in an extraordinary executive order, revoking security clearances, government contracts, access to information, and physical access to government buildings for lawyers associated with Perkins Coie and sought to punish the clients of firms for engaging them.

He later issued a similar order targeting Paul Weiss, though late Thursday he announced that he rescinded the order after Paul Weiss agreed to a number of demands, including dedicating $40 million in pro bono legal services to support administration goals—a development almost as disturbing as the original order.

Despite the caveat “to the extent consistent with law” repeated throughout the pronouncements, these actions violate due process and the First Amendment rights of both the firms and their clients. They are unlike anything we have seen since the McCarthy era in the 1950s.

It’s telling that the administration is broadcasting its retribution. The public fight with these three highly respected law firms is designed to intimidate the entire legal community through the implicit threat of future blackballing and by intimidating clients into pressuring law firms to cooperate with the administration. Corporate clients right now are likely grilling their counsel about whether they engage in pro bono or other litigation disfavored by Trump.

Despite the likelihood Perkins Coie will prevail in court, the message has been sent.

Even if courts declare it unlawful for the government to formally blackball law firms, lawyers and clients will fear that if they challenge this administration, they will be treated unfairly during interactions with federal agencies that are the bread and butter of their practice. One client recently dropped Paul Weiss as his defense counsel, saying Trump’s order “may negatively affect his ability to obtain a favorable review of his case.”

The firms that have the greatest expertise and experience litigating against the government are most at risk. The administration’s public demonstration of vindictiveness will have ripple effects, regardless of the outcome of litigation challenging it. Given Paul Weiss’ prominence, the success of the administration’s bullying and shakedown is stunning and will reverberate through the legal profession.

If the federal government lawyers, whose job it is to put the kibosh on illegal action are neutered, and the private sector lawyers are browbeaten into submission, the only lawyers left are those working in public interest, or for state and local governments. These sectors have great value, but they have limitations and vulnerabilities when it comes to standing up for the rule of law.

The public interest community is tiny compared to the other sectors and depends on philanthropic donations. State and local government lawyers have major constraints on the types of cases they can bring. They can sue on behalf of the polity they represent, but they aren’t in the business of representing individuals or entities subject to illegal conduct by the federal government.

The Trump administration is testing these limits by defending challenges from state attorneys general by arguing states have no standing to sue.

Without the support of federal government lawyers and the private bar, the checks on government abuse are greatly weakened. The checks and balances that the courts intend to provide don’t come into play if there are no lawyers willing to bring cases.

For all the lawyers who have stood up for the ethics and integrity of their profession, there have been others who have worked to undermine it. We are waiting to see whether our profession is characterized by the likes of Sassoon, Driscoll, and Scotten, or by the appointees who implemented the president’s plans to erode the rule of law.

I’m heartened to see reports that nearly 300 associates from the nation’s largest firms have signed a letter calling on firm leaders to stand up to Trump’s actions. However, the most powerful voices in the private bar have mostly remained silent, and Paul Weiss’ decision to placate the administration rather than challenge blatantly illegal action is deeply troubling.

Lawyers, especially those in leadership positions, need to rise to the challenge and play their role in defending our democracy, and not fold under threat of retaliation. I hope—as did the educators and leaders of the bar after the Watergate scandals—that we’ve been effective in conveying the values of our profession. And I hope law students, past and present, have absorbed those values.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Matthew Diller is dean emeritus and professor of law at Fordham University School of Law and former dean of the Benjamin N. Cardozo School of Law.

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