Big Law Has Won Three Cases. But Trump Is Ahead in the Long Game

Even though President Donald Trump has lost every case brought by law firms suing over his executive orders against them, he likely has achieved a primary objective—inflicting injury and intimidating major law firms so they will be less likely to challenge his executive actions.

Surely the lawyers advising the president told him that his executive orders were blatantly unconstitutional and wouldn’t survive court challenge. But he went forward to exact retribution and let those who draw his ire know they would face grave consequences. It is a strategy straight out of the bully’s playbook.

Trump issued executive orders targeting five major law firms: Perkins Coie, Paul Weiss, Jenner & Block, WilmerHale, and Susman Godfrey. In each instance, the executive order imposed sanctions that, if allowed to stand, likely would put the law firms out of existence. No law firm could withstand what Trump imposed: suspending security clearances for their lawyers, ending federal government contracts with businesses represented by the firms, and barring lawyers in the firms from access to federal buildings—including federal courts.

Every executive order was explicit in stating its purpose as political revenge. The executive order for Perkins Coie began, “The dishonest and dangerous activity” of Perkins Coie “has affected this country for decades.” What was its offense? In 2016, it represented Hillary Clinton.

The executive order against Paul Weiss was based on one of its former lawyers being part of the Manhattan District Attorney’s Office legal team that prosecuted and convicted Trump.

Likewise, the executive orders targeting WilmerHale said it was because WilmerHale hired former special counsel Robert Mueller and two of his deputies after they completed their investigation into Russian interference in the 2016 election and possible obstruction of justice by Trump and his associates. Jenner & Block was targeted because it also hired a lawyer that worked on the Mueller investigation.

The executive order against Susman Godfrey said the firm was being punished because it “spearheads efforts to weaponize the American legal system and degrade the quality of American elections.” The law firm brought a defamation suit on behalf of Dominion Voting Systems against Fox News that resulted in a $787.5 million settlement.

Three of the four firms that sued have received a permanent injunction and the fourth case is pending, with a temporary injunction in place. The judges explained that the executive orders violate the First Amendment by punishing the law firms for their lawful advocacy, deny due process of law for imposing sanctions without any procedures, and undermine the right to counsel.

Each judge was forceful in condemning the Trump executive order. In the Perkins Coie case, Judge Beryl Howell declared: “No American President has ever before issued executive orders like the one at issue in this lawsuit,” and that “in purpose and effect, this action draws from a playbook as old as Shakespeare, who penned the phrase: ‘The first thing we do, let’s kill all the lawyers.’” Howell said the executive order against Perkins Coie is “an unprecedented attack” on the “foundational principles” of the American judicial system.

In the lawsuit brought by Jenner & Block, Judge John Bates said “Going after law firms in this way is doubly violative of the Constitution,” finding it infringed Jenner’s rights to free speech and sought to “chill legal representation the administration doesn’t like, thereby insulating the Executive Branch from the judicial check fundamental to the separation of powers.”

Trump is on a losing streak and that will surely continue when the judge in the Susman Godfrey case rules on the request for an injunction. But looking at it that way ignores how Trump likely believes he’s already won. Nine law firms—including Paul Weiss, Milbank, Simpson Thacher, and Skadden—have given in to Trump and pledged nearly $1 billion in free legal services to causes the White House supports.

Their capitulation is shameful. We all learned on the playground that giving into a bully only makes it worse. Today the bully demands $1. If you give in, tomorrow he’ll demand $5. If every law firm had stood up to Trump’s bullying ways, they all would have won, and this would have been over quickly.

Trump’s tactics have succeeded in other ways as well. The law firms that have fought back have suffered, apparently losing clients who would rather not be represented by firms in the president’s crosshairs.

Trump is also accomplishing something more: Targeting law firms chills them from bringing challenges against his policies and actions. The message is clear. If a law firm angers him, he will exact retribution and put the firm in serious jeopardy. We worry, as all should, that this will cause law firms to refrain from bringing lawsuits to stop unconstitutional presidential acts.

What now? If additional law firms are targeted, they must sue and not capitulate. As professors, we hope our students, in choosing employment opportunities, will consider which firms fought back and spoke out, as opposed to which gave in and were silent.

The lawyers defending the Trump executive orders should face consequences for making frivolous and harmful arguments in courts. And most of all, we hope our profession will be united in saying: Lawyers never should be punished for their lawful, zealous advocacy.

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

Erwin Chemerinsky is dean at the University of California, Berkeley School of Law.

David Faigman is the chancellor and dean at the University of California College of the Law, San Francisco (formerly UC Hastings).

Nancy Gertner is a retired United States District Court judge, and senior lecturer at Harvard Law School.

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