The Perkins Coie offices in D.C. (Andrew Kelly/Reuters)
For a month, President Donald Trump has been picking off his enemies among America’s top law firms. They have been vulnerable in part because they didn’t stand together. But some leading firms are now fighting back aggressively in what could be one of the epic battles of Trump’s presidency.
Trump’s campaign against the major law firms has tested the guardrails of the Constitution as much as any other action since Inauguration Day. Trump has declared his motive: He wants revenge against lawyers who investigated him during and after his first term and the firms that supported them. His assault threatened some of those firms’ very existence and drove two legal giants to make humiliating settlements to escape his wrath.
The story of how Trump mounted this attack on “Big Law,” as the major firms are often described, is a case study in how executive power can be used to punish enemies of the president. Trump has seemingly turned the law upside down: To fight against what he claims was “weaponization” of justice against him, he has used his presidential power as a sledgehammer.
Trump’s method has been intimidation by executive order. He has targeted about a half-dozen prominent firms directly and threatened the rest of the bar with sanctions if lawyers conduct “frivolous, unreasonable, and vexatious litigation” against his policies. And he has denounced judges who block his actions, describing them as “Radical Left Judges” and “Lunatics” who should be impeached.
Paul Clement, a former solicitor general in the Republican administration of President George W. Bush, summarized how dangerous Trump’s “personal vendettas” were in a brief filed Friday to defend WilmerHale, one of the targeted firms. He described Trump’s orders as an “unprecedented assault … on [a] bedrock principle” and an “undisguised form of retaliation for representing clients and causes he disfavors.”
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What makes this tale especially painful is that for weeks, some frightened white-shoe law firms acted to protect their own economic interests rather than standing firm on principle. Self-interest made them weak. Even now, most top firms haven’t signed an amicus brief to support the firms Trump has attacked.
Trump’s battle against the legal establishment began Feb. 25, when he issued an order stripping security clearances for lawyers at Covington & Burling who were representing Jack Smith, former special counsel. Smith had brought two indictments against Trump, one alleging that he encouraged the Jan. 6, 2021, riot at the U.S. Capitol and the other for alleging that he mishandled classified documents at his Mar-a-Lago estate. In Trump’s view, Smith’s prosecution was “an egregious misuse of judicial authority for political ends.”
The Covington & Burling ban was mild compared to what came after. On March 6, Trump struck at Perkins Coie to punish what he called its “dishonest and dangerous activity.” The firm had represented his opponent in the 2016 campaign, Hillary Clinton, and hired the investigators who compiled a report alleging that Trump had ties with Russia. Trump didn’t just strip Perkins Coie’s clearances, he banned the firm’s lawyers from entering federal building or engaging with the government. Lawyers tell me that some big Perkins Coie clients quickly fled to other firms.
The legal world shuddered, but Perkins Coie fought back with help from brave lawyers at Williams & Connolly, a famously hard-nosed Washington firm. They filed suit on March 11 to reverse the order, arguing that it was “an affront to the Constitution” and that its “plain purpose is to bully those” who disagree with the president. In a show of solidarity, 14 attorneys from Williams & Connolly signed the complaint.
A few brave souls publicly spoke up for the embattled firms. William R. Bay, president of the American Bar Association, complained to NPR on the day the suit was filedthat “lawyers or law firms are being targeted for suing the government or representing someone the government doesn’t like.” Twenty state attorneys general filed an amicus brief supporting Perkins Coie the next day. And the Wall Street Journal editorialized that week that Trump was seeking “to intimidate elite law firms from representing his opponents.”
But there were as many profiles in capitulation as courage. After Trump targeted Paul Weiss on March 14, Brad Karp, managing partner of the firm, met with the president to work out a March 20 settlement in which the firm agreed to spend $40 million on pro bono suits aiding Trump and other concessions.
Critics mocked the firm for making a deal with Trump. But Karp explained in a letter to his partners that if he hadn’t settled, the order “could easily have destroyed our firm.” Karp said he had been “hopeful that the legal industry would rally to our side.” Instead, he said “other firms were … aggressively soliciting our clients and recruiting our attorneys.”
Law firms hoping to profit from competitors’ misfortunes should have recalled the famous warning Benjamin Franklin is said to have given the Founders as they nervously debated whether to sign the Declaration of Independence in July 1776: “We must all hang together, or most assuredly, we shall all hang separately.”
Trump moved on to his next targets. On Tuesday, he issued an executive order against Jenner & Block and on Thursday against WilmerHale. Their supposed crimes involved helping with the Justice Department’s investigation into collusion with Russia after the 2016 election. Jenner & Block had welcomed back its partner Andrew Weissmann, one of the Russia prosecutors. And WilmerHale had been the legal home for Robert S. Mueller III, before and after he led the investigation. In 2017, WilmerHale had represented Trump’s daughter Ivanka and his son-in-law Jared Kushner. But no matter, it was under the gun.
After Trump’s latest putsch, some firms are still cowering. About three weeks ago, Donald Verrilli, a former solicitor general now at the Los Angeles firm Munger Tolles & Olson, began drafting an amicus brief in support of the big firms. His brief is likely to be filed this week, but I’m told that most of the nation’s top 100 firms haven’t yet signed on.
Some leaders of the bar see the threat. The ABA and more than 75 bar associations signed a protest letter. A similar letter was signed by 80 law school deans — but not the deans of the nation’s three most prestigious law schools: Harvard, Yale and Stanford.
The battle was fully joined late last week when Jenner & Block and WilmerHale went to court to challenge Trump. Jenner & Block messaged its clients Friday that submitting to Trump “would mean … capitulating to unconstitutional government coercion, which is simply not in our DNA.” WilmerHale’s suit, written by Clement, was emphatic: “The President’s sweeping attack on WilmerHale (and other firms) is unprecedented and unconstitutional.”
Yet even last week, Skadden Arps, one of the biggest and richest firms, decided to bend the knee. After a post by Elon Musk warning, “Skadden, this needs to stop now,” the firm agreed on Thursday to spend $100 million for pro bono causes Trump supports as part of its effort to forestall an executive order. The price of capitulation had more than doubled since Paul Weiss’s settlement.
Unless people are compelled to act in their common interest, they will rarely do so. That was the gist of a celebrated 1965 book by economist Mancur Olson, “The Logic of Collective Action.” The legal world, in which cautious advocacy is normally the rule, is learning that it must fight together for its life.