Big Law Is Standing Down When It Comes to Standing Up to Trump

Since the start of President Donald Trump’s second term, challengers have filed numerous lawsuits to oppose actions taken by his administration, echoing the wave of suits filed during Trump’s first term against policies such as the travel ban. But there’s a big difference between 2017 and 2025: This time around, when it comes to opposing the Trump administration in court, Big Law is largely absent.

Large law firms represented plaintiffs in 15% of cases challenging Trump executive orders between January and mid-September of this year, according to The Washington Post. In contrast, during the comparable period in Trump’s first term, big firms represented plaintiffs in roughly 75% of such cases.

That’s a huge shift. So, who’s picking up the slack? Small and midsize firms have stepped up to the plate: Almost 90% of firms suing the administration during Trump’s second term through mid-September employ fewer than 500 lawyers, per The Post. Organizations such as the American Civil Liberties Union and Democracy Forward are also playing an active role, as well as state attorneys general.

But these actors, which don’t have the same resources as Big Law, are struggling to keep up. Their lawyers are working nights and weekends on lawsuits arising out of Trump administration policies—and they turn away many cases because of an inability to staff them.

Elite litigation boutiques have risen to the occasion in challenging the administration. But they’re not a perfect substitute for Big Law, especially in large and complex cases that require many lawyers and staff members to litigate properly (to say nothing of optimally).

As Paul Clement of Clement & Murphy, a former Kirkland & Ellis partner, told me in a podcast interview, “boutiques are pretty good at certain things”—for example, appellate litigation—but “it’s harder for the boutique law firms to do some of the really intensive trial work that requires huge commitments of capital and labor to get right. It’s much easier for Big Law to do that.”

What’s behind Big Law’s apparent change of heart? I suspect that fear is a factor. Beginning in late February, the Trump administration began targeting large law firms with punitive executive actions, including executive orders that would have made it difficult for these firms to represent clients before the federal government.

These orders never took effect. Four firms won court battles to block them, and a fifth firm, Paul Weiss, struck a deal with the administration to get out from under its order.

But the orders’ legality (or lack thereof) didn’t stop them from exercising an in terrorem effect on Big Law. After Paul Weiss reached an agreement with Trump, eight other firms reached similar settlements with the administration—reflecting Big Law’s focus on the bottom line, in the eyes of many commentators.

“The firms that capitulated didn’t just capitulate to the government,” Peter Zeughauser, a partner at the Zeughauser Group consultancy, said to me. “They also capitulated to their highest-earning partners and the Trump supporters among their biggest clients.”

Most large firms neither sued nor settled with the government. But the leaders of these firms were aware of the executive orders issued against their peers—and I’m guessing that some of these leaders decided that their firms would refrain from taking cases adverse to the administration, to avoid incurring Trump’s ire.

“Firms that focus on their own survival will do what they can not to fall out of the administration’s good graces or not to call attention to themselves,” said Professor Nancy Rapoport of UNLV William S. Boyd School of Law, author of a law review article about the executive orders. “Firms that are more concerned with ‘why should the government tell me whom to represent’—and the legitimate role of government more broadly—are more likely to not shy away from the pro bono work that might be unpopular with the government.”

The possibility that the Trump administration has successfully deterred Big Law from taking on the government in court raises concerns about the rule of law, at least to some observers.

“We take an oath to uphold the Constitution and the rule of law, and this is clearly antithetical to that,” said Professor Bill Henderson of Indiana University. “And you know what the problem is? It’s costly. We’re not used to paying a price for our freedom. We’re not used to paying the price for constitutional democracy. And we’ve deferred payment.”

“The real existential threat posed by the capitulating law firms is to the rule of law,” Zeughauser told me. “It is a threat to our duties to uphold the rule of law, to disclose conflicts of interest, and to provide pro bono services—not to the Department of Commerce, but to those who cannot afford a lawyer.”

David Lat, a lawyer turned writer, publishes Original Jurisdiction. He founded Above the Law and Underneath Their Robes, and is author of the novel “Supreme Ambitions.”

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