Trump v. Big Law

Something strange has been happening lately. Law firms have been in the news. This is not normal. Law firms are meant to operate in the background, behind the people who are making news. But in this case, when the people who drive media coverage are targeting you, you get to join them on the front page.  

I’ve been following this but didn’t intend to write anything about it because I assumed most people were not interested. Who wants to read an article from a law firm about law firms? Dull. But a number of people have reached out to me asking what is going on and what I make of it, so here I am on a Wednesday morning, about to share with you all what really is happening between the Trump administration and all these law firms and my two cents. 

What is the Trump administration doing? 

Starting in February, the Trump administration started making statements about their intent to curtail the government access of certain major law firms. How did they identify the firms? Presumably Trump pulled out his little list (likely started as a child—Mark S., pinched me during recess, April 6, 1953, intended punishment: total life destruction) of people who have wronged him. At this point, that list includes a multitude of law firms that have represented someone who investigated Trump (Jack Smith, Robert Muller), someone who ran against Trump (Hillary Clinton), someone who prosecuted people who engaged in an insurrection (the January 6 lot), or someone who doesn’t like him (George Soros).  

Now, how can a President punish a law firm? This is something most of us have probably never even considered, so it’s a fair question. Trump did a few things. First, he revoked the security clearance of certain individuals in these firms, making it impossible for them to take on cases where such a clearance was required. Second, he directed the federal government to terminate any contracts with these firms. Third, he directed government agencies to refuse to hire anyone who had ever worked at these firms. And fourth, he indicated lawyers from these firms should be barred from entering any federal buildings, which would make lobbying difficult (many major law firms also have lobbying practices). 

How have law firms responded? 

The targeted law firms fall into two camps: those that have fought and those that have settled (I want to use another word here, but let’s stay neutral and stick with settled). Let’s start with the settlers. Nine major law firms—Skadden Arps, Paul Weiss, Willkie Farr, Kirkland & Ellis, Latham & Watkins, Milbank, Cadwalader, Shearman, and Simpson Thacher—have opted to settle with the Trump administration rather than fight.  

What does a settlement look like when there was no lawsuit? In essence, the firms made agreements with the administration that they would do things the administration wanted and, in exchange, the administration would revoke the executive orders. What did they agree to do? This is the difficult part. These law firms have each agreed to provide tens of millions of dollars of free legal support to Trump causes and agreed to end any programs that encourage diversity, equity, and inclusion. That’s right. Combined, these firms are going to be providing nearly a billion dollars in free legal services at Trump’s direction. And no more DEI programs or policies. What does that even mean? No more inclusion here! Only pro-exclusion policies at Skadden! 

Let’s get back to those free legal hours though. Typically this type of work is called “pro bono”—law firms perform services for free in service of the good. That doesn’t really work here, primarily because these services are not free! They are being provided as payment as part of a settlement (does that also mean the Trump causes have to pay taxes on them . . . ?). If you really think about it, the firms have basically made a billion dollar donation to the Trump campaign. I say campaign because he’s repeatedly alluded to intending to stay in office after this term expires. It’s already becoming clear that Trump is taking a very broad view of these agreements, insinuating that these firms will have to work on administration trade deals and possibly defend administration officials in court proceedings. Who is surprised by this? No one. 

Did these firms really have to do this? 

No. Four of the targeted firms—Perkins Coie, Jenner & Block, Wilmer, and Susman Godfrey—have chosen to fight these orders in court. Perkins Coie promptly had their first victory when the district court judge entered a restraining order that directed the administration to reverse course while the matter was resolved in the courts. What did the Trump administration do? They tried to get the judge disqualified. Denied. Perkins Coie has now filed a motion for summary judgment, trying to resolve this promptly on the legal merits. They are arguing that the executive order violates the First Amendment, Due Process Clause, and the constitutional right to counsel, along with a few odds and ends. We frequently hear the First Amendment bandied about by people who are getting criticized for saying terrible things (you can’t tell me what to say . . . First Amendment! True, but that same First Amendment also protects the right of people to say you’re an idiot and a liar . . . First Amendment!). In this case, we are reminded that the First Amendment prohibits our government from taking action against people solely due to their words and associations. This is a good thing. 

How do I feel about all this? 

In some ways it’s clearcut. This is wrong. It is wrong. And no one is in a better position than a group of lawyers to make that argument. Plus, the terms of the settlements make me ill and ashamed of this industry. This is values signaling at its worst. 

At the same time, these are businesses with employees. Some have come out and said they are doing this because they don’t want to suffer the economic harm, which would undoubtedly cause them to lay off staff. Sure. I get that. But the truth is that the main people who would be harmed are the equity partners who make absolutely enormous amounts of money. The other truth is that these settlements are ultimately going to do more harm than good. The Big Law model relies on the constant churn and replacement of junior talent, each year onboarding a new cadre of law firm graduates. They compete for these graduates with all the other Big Law firms, most of which offer the same salaries. When the next bright young mind from the University of Michigan (yes, favorites) is looking at the array of Big Law options before them, who do you think they’re going to choose? Skadden (and it’s $100 million in Trump legal work) or Perkins Coie (and their principled defense of the rule of law)? You don’t have to be a Wolverine to answer that one.