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It was late Friday night, the day after his triumph over legal juggernaut Paul Weiss, that President Donald Trump issued his latest broadside against law firms.
You would be forgiven for missing it given the timing of its release. But it's worth paying attention to — as some lawyers in your life or on your screens are likely making clear by now.
First, let me clear up what this latest attack even entails. It began with Trump issuing executive actions punishing three firms — Covington & Burling, which did not react; Perkins Coie, which fought back and won a partial temporary restraining order; and Paul Weiss, which ultimately capitulated to a deal announced last Thursday, the terms of which are still a matter of some debate. But the president has now directed Attorney General Pam Bondi, in a memo issued Friday night, to seek sanctions “against attorneys and law firms who engage in frivolous, unreasonable, and vexatious litigation against the United States."
Other law firms are running scared — and lawyers I know are furious.
In the memo, Trump directed Bondi to do whatever is appropriate “to refer for disciplinary action any attorney whose conduct in Federal court or before any component of the Federal Government appears to violate professional conduct rules, including rules governing meritorious claims and contentions, and particularly in cases that implicate national security, homeland security, public safety, or election integrity.” And where she determines that conduct by a lawyer or law firm warrants sanctions or disciplinary action or where, based on her review of litigation against the federal government over the last eight years, she discovers “fraudulent” or “vexatious” litigation conduct, Trump directed her to recommend “additional steps that may be taken,” including the same suspension of security clearances or termination of contracts with the federal government that constituted the heart of his three earlier, law-firm specific executive orders.
Yes, some of Trump’s executive actions, as aimed at lawyers, seem to be purely performative. Revoking the security clearances of lawyers he has long complained about sounds punitive — until you realize this is the second time he has done it with respect to some of them. What's more, some of his allies concede that taking those clearances away for people like Manhattan District Attorney Alvin Bragg and New York Attorney General Letitia James is more symbolic than substantive.
Similarly, directing the Justice Department to seek bonds — essentially asking the court to make a plaintiff post a security deposit of sorts — every time a plaintiff wants a preliminary injunction or temporary restraining order against his administration? Scary in theory, but hardly so in practice, where judges control whether plaintiffs have to post any security, let alone a prohibitively expensive one that would deter litigation.
But the Friday night memo? Trump knows that his attacks on judges — who collectively have issued more than a dozen nationwide injunctions against his policies since his return to the White House — might be popular with his base, but aren’t exactly changing judicial behavior. Moreover, while judges decide cases, lawyers make them. And therefore once Paul Weiss offered Trump major concessions in exchange for the revocation of his executive action targeting the firm, other law firms are running scared — and lawyers I know are furious.
Part of what explains their disgust is what Paul Weiss represents in the firmament of law firms. It is a longtime affiliate of progressive organizations, a reliable home for former Democratic political appointees, and historically, a champion of various civil rights causes. And, as The New York Times has observed, it has been led for nearly two decades by one of the legal profession’s most prominent Democratic donors and organizers, Brad Karp.
Indeed, Karp's colleagues have included former partner Mark Pomerantz — who memorialized his pursuit of Trump's indictment by the Manhattan DA in a revealing book — and multiple former Democratic government officials who are current partners, including former Attorney General Loretta Lynch, former Homeland Security Secretary Jeh Johnson, and former U.S. Attorney Damian Williams.
If Karp — aided by this generation’s GOP superlawyer, Bill Burck — was so eager to cut a deal (and one that included a commitment to eliminating all DEI practices and policies, according to Trump), what hope is there for the rest of Big Law?
Judges have the power to declare what the law is and is not, but they can’t rule on cases that are never brought.
To be clear, the fear I hear is not about the topics that usually make law firms anxious. They’re not worried principally about average profits per partner (which at Paul Weiss has topped $7.5 million on the most recent reporting) or client retention. What worries them is how the Trump administration’s increasing disregard for the law can be contained if firms sideline themselves from the fight.
As one law firm partner reminded me, lawyers take for granted what most nonlawyers don’t understand: Judges have the power to declare what the law is and is not, but they can’t rule on cases that are never brought. And if law firms believe they’ll be investigated, or worse, simply for bringing cases that Trump considers frivolous, vexatious or in bad faith, they won’t bring them.
That’s OK, you might think. That’s what groups like the American Civil Liberties Union or Democracy Forward are for: to wage the major constitutional battles. But those groups and other so-called impact litigation groups have long partnered with law firms — and many of the landmark cases that even nonlawyers know by name have been law firm-led.
Take the battle for marriage equality. The watershed case of Obergefell v. Hodges? Argued by Ropes & Gray partner Howard Hallward-Driemeyer. Some years earlier, United States v. Windsor declared that a federal statute refusing to recognize same-sex marriages was invalid. And who shepherded that case to and through the Supreme Court? Then-Paul Weiss partner Roberta Kaplan.
Of course, then, as now, it is more common to hear public disdain of lawyers than it is to sing their praises. Even Shakespeare, in “Henry VI,” threw in a line that reeks of present-day schadenfreude: “The first thing we do, let's kill all the lawyers!” But 30 years ago, in a dissent, then-Justice John Paul Stevens reminded us that that line was “spoken by a rebel, not a friend of liberty.” Shakespeare, Stevens observed, “insightfully realized that disposing of lawyers is a step in the direction of a totalitarian form of government.”
The question is: Will we?