Stand up to Trump’s assault on law firms

President Donald Trump has promised his supporters to seek retribution against those who have sought in the past to do him harm. At the top of that list were the lawyers who sought to punish him for his conduct from 2016-20, fought in court his failed challenges to the 2020 election results, investigated and sought to prosecute him for his conduct on Jan. 6 and beyond, and prosecuted those who assaulted the Capitol.

Now that we are well into the third month of President Trump‘s second term, he has not surprisingly turned his attention to multiple law firms that now house or once housed individual lawyers he wishes to punish and to firms that he perceives have embraced DEI initiatives.

The first out of the box was Perkins Coie, singled out in one of Trump‘s executive orders for sins committed years ago before and during Trump‘s first term. After the firm was turned down by a few others to represent it, Williams & Connolly stepped forward and obtained a temporary restraining order against 90% of the presidential executive order.

U.S. District Judge Beryl Howell who granted the TRO said “I am sure that many in the profession are watching in horror at what Perkins Coie is going through.” Howell spontaneously said that “ it sends little chills down my spine.”

Like most of the similar law firm executive orders, subsequently issued by the president, the Perkins Coie executive order suspended top-secret access of Perkins lawyers, prevented the firm’s lawyers from entering any federal buildings including courthouses, and threatened to bar or inhibit their representation of any federal contractors.

Why, we may ask, did the Perkins Coie executive order “send chills down the spine” of Howell? Perhaps because punishment of law firms by the government for the clients they have represented, the views they have expressed, or the lawyers with whom they are or have been associated creates serious issues for the rights to speak freely and assemble and to associate, all of which are protected by the First Amendment.

Such orders implicate rights protected by the due process clause and impinge on our tradition of leaving attorney discipline to the states. Perhaps chills ran down Howell’s spine because she remembered that centuries ago John Adams earned his most notorious lawyer stripes by defending British redcoats in court against a government bound to punish them for shooting colonists — only later to be elected president.

Next out of the gate was the New York firm of Paul Weiss. The parade of executive orders has in the last few days extended to Jenner & Block and Wilmer Hale and Skadden Arps.

In a controversial move, the Paul Weiss firm settled the potential controversy over its executive order by ponying up $40 million in support of Trump-approved causes and otherwise doing penance for the supposed sins that annoyed the president. The quick settlement by Paul Weiss angered many, including 1,700 big-firm associates who signed an open 1,000-word letter to all big firms that were likely to be targets.

The chairman of Paul Weiss defended the firm’s surrender by asserting (over the denials of those accused) that some other big firms shamefully tried to steal their top partners and clients.

Skadden Arps has reportedly settled by spending $100 million in support of Trump-favored causes, and Jenner & Block and Wilmer Hale have sued and obtained TROs based on violations of the First, Fifth and Sixth Amendments. That makes three federal judges who have blocked enforcement of the law firm executive orders.

We strongly urge law firms targeted by executive orders to stand strong and obtain the judicial relief to which they are entitled. We encourage other firms to stand up, like Williams & Connolly and Paul Clement, and represent the targeted firms. We condemn those firms who would seek to steal lawyers and clients from targeted firms. And we encourage those who are tempted to pay the demanded ransom to first read the open letter from the 1,700 big-firm associates.

And if and when the White House changes hands, we are confident that no law firm will be punished for its ties to the Federalist Society.

The rule of law demands as much.

Editorial Advisory Board member Debra G. Schubert did not participate in this opinion.

EDITORIAL ADVISORY BOARD MEMBERS

James B. Astrachan, Chair

James K. Archibald

Gary E. Bair

Arthur F. Fergenson

Nancy Forster

Susan Francis

Julie C. Janofsky

Ericka N. King

George Nilson

Catherine Curran O’Malley

Angela W. Russell

Debra G. Schubert

Jeff Sovern

H. Mark Stichel

The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the board attempt to develop consensus on issues of importance to the bench, bar and public. When their minds meet, unsigned opinions will result. When they differ, or if a conflict exists, majority views and the names of members who do not participate will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.