The Assault on Big Law and Lawyers
President Donald Trump has threatened to upend the practice of law and the rule of law forever in a series of executive orders. Unless you’re a lawyer or familiar with “Big Law”, the names on the recent executive orders are likely just that — names. Perkins Coie, Paul Weiss, WilmerHale, etc.
As law students and lawyers around the world know, these are some of the crème de la crème of the profession. A collection of some of the top law firms that provide legal advice to some of the biggest companies on the planet.
Trump’s executive orders seek to change that in an unprecedented way. Never has an American President targeted a series of law firms simply because they represented or hired an adversary of his from a previous investigation or litigation. The recent WilmerHale Executive Order, for example, targeted their behavior of hiring two lawyers who worked on the Mueller Investigation. As you may recall, that investigation concluded that Trump had engaged in behavior that could be prosecuted, but Robert Mueller declined to do so because of a DOJ policy prohibiting the indictment of a sitting president.
The executive orders read like many of Trump’s tweets — “The dishonest and dangerous activity of the law firm [Perkins Coie] has affected this country for decades.” That dishonest and dangerous activity? Representing Hillary Clinton in 2016 and George Soros (although the Perkins Coie Executive Orderfailed to note that Perkins Coie hires many Republicans and represents them too).
In general, the executive orders suspend security clearances for the targeted law firms, which effectively prevents them from representing many government contractors who handle classified information. All government contractors must also disclose whether they work with the targeted firms, potentially blacklisting them from all government-related work. They go on to blacklist any former employees of targeted law firms from working for the federal government.
Shutting off these law firms from all government-related work (including even entering federal buildings in some cases), and also penalizing their former employees for past work at the firms, is not some minor slap on the wrist. For many of these firms, it’s existential.
Not only does it prohibit their ability to do government-related work, but it also compromises the faith many of their clients have in them. Why hire a law firm to represent you if they have an adversarial relationship with the federal government? Good luck ever securing federal government approval from any of those affected firms (these law firms regularly seek federal government approval for mergers & acquisitions, stock offerings, new drug applications, etc.). And good luck keeping your rainmaking lawyers under those conditions.
It’s not surprising that some firms like Paul Weiss tried to negotiate with the Trump administration. They agreed to do $40 million worth of pro bono work for causes supported by the White House. Somehow, they think this will put them in Trump’s good graces and settle the nerves of all their clients.
It highlights the larger problem with these executive orders. They are not mere existential threats to the targeted firms, whether they negotiate with Trump or not. They are existential threats to the rule of law and American democracy.
This assault is about more than big law and lawyers
President Donald Trump has a rule of law problem. In order to implement the agenda he wants, he must work within the confines of the law. He can’t simply stop the Social Security checks from flowing (that would require Congressional action) or remove birthright citizenship (that would likely require a Constitutional amendment).
As he fights with judges, at times openly defying their orders like when he sent immigrants to an El Salvadoran prison, he has decided to assault the rule of law on all fronts. That includes the lawyers who work in America’s system of laws every day.
To deter these lawyers from ever going against him or his MAGA followers in the future, what better way than using the full weight and force of the federal government to silence them? Most companies need some degree of federal government review and approval in order to operate in interstate commerce. By blacklisting specific law firms that have been adversaries of Trump in the past, it will not only punish them, but send an alarming message — anyone who defies the Trump administration may be targeted and experience Trump’s version of justice.
Law firms like Paul Weiss may be inclined to cooperate. But if they agree to go along with Trump by committing to $40 million in nonprofit work now, nothing is stopping Trump from saying it’s not enough once the bounty has been paid. Like a mafia boss shaking down a target for “protection” money, Trump could easily extort Paul Weiss for more with nobody to stop him.
Unless the law firms fight back. Some, like Perkins Coie, Jenner & Block, and WilmerHale, have decided to fight. They realize the stakes here.
This is about more than short-term business and losing clients or rainmaking lawyers. This threatens the entire practice of law as we know it. Lawyers will no longer have the freedom to practice law in accordance with the law. They will be thinking about political ramifications. They will be trying to guess whether certain representations or legal actions may anger President Trump or someone close (hi, Elon!).
The practice of law will become a game of favors for the federal government. Tribute offerings like Paul Weiss’s $40 million in pro bono work are only the beginning. Other firms might try to book hotel rooms at the local Trump property to show their support. The potential favors and tributes are endless.
At their core, these executive orders targeting law firms violate fundamental constitutional rights. Namely, free speech and due process. It’s hard to view them as anything but attempts to coerce the firms from representing anyone who might oppose Trump. In a democracy based on blind justice under the law, which I witnessed firsthand as a juror recently, these actions by Trump are anathema to the constitutional principle that clients have a right to counsel regardless of their political views.
Does Trump have any legitimate basis for these executive orders?
One of the reasons Trump was elected in 2024 was due to his perceived victimization of “lawfare.” It’s a term many of his supporters used to describe what they perceived as unreasonable attacks against Trump by the “Biden Justice Department.” I have written in the past about many of the cases against Trump, and while I’m sympathetic to arguments against the New York prosecution (the only one he was found guilty of), there were many legitimate reasons for bringing each of those previous cases and at least letting a jury decide.
Regardless, one executive order against the law firm Jenner & Block, cited “lawfare” as a reason for it falling within Trump’s crosshairs.
“Jenner & Block LLP (Jenner) is yet another law firm that has abandoned the profession’s highest ideals, condoned partisan “lawfare,” and abused its pro bono practice to engage in activities that undermine justice and the interests of the United States.”
It’s a classic Trump marketing tactic. Ascribe a catchy name to a complicated and nuanced issue, and let your supporters run wild with it. But will anyone stop to question whether this action against Jenner & Block is actually the most partisan form of retribution? Especially when it’s not accompanied by any constitutional or statutory justification.
One of the few laws the Trump administration cited in its executive orders against law firms were civil rights laws. The executive orders generally noted that the targeted law firms “discriminate based on race.” Unless he has damning evidence he didn’t mention, it will be hard to use that as a justification for these executive orders. Race can be one of multiple factors in a private firm’s holistic review process for hiring (see Grutter v. Bollinger). There’s no evidence that the targeted law firms implemented race quotes or other prohibited hiring practices that may have violated civil rights laws.
These are ancillary arguments, however, to Trump’s main point — that as President, he has the executive authority to regulate companies as he sees fit. Trump generally states at the outset of each executive order, in the broadest possible manner:
“By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered . . .”
The challenge for Trump is that the Constitution is supposed to apply to him too. Which means that Trump, even as President, cannot infringe on the free speech, due process, or any other constitutional rights of others.
Without more legal justification, these executive orders from the Trump administration should be struck down on constitutional grounds. They infringe on the rights of the targeted law firms to practice law freely and to be afforded appropriate due process in defending their ability to represent federal government contractors or even enter government buildings.
If allowed to proceed, the authoritarian implications of these executive orders are chilling.
The authoritarian implications of this assault on big law and lawyers
In China, businessmen like Alibaba’s Jack Ma have suddenly disappeared. In Russia, oligarchs meet their demise under suspicious circumstances. These events usually follow one or two things: (1) someone like Jack Ma accumulating too much power and celebrity; and/or (2) a businessman publicly defying or criticizing the Chinese Communist Party or the Kremlin.
This is not supposed to happen in the United States. Lawyers, entrepreneurs, and the like are not supposed to fear retribution or reprisal for working with someone that the current person in the White House dislikes or even hates. It’s one of the reasons why entrepreneurism, innovation, and technological advancement have thrived in the United States for decades while the rest of the world has mostly played from behind.
U.S. laws and its system of government have historically guaranteed a reasonable degree of certainty. You can make fun of the president and not disappear off the streets the next day. You can do business with whomever you please so long as you operate within the confines of the law. Even if you have politically unpopular ideas or motives, you can still express them so long as you’re not breaking any laws.
Donald Trump’s executive orders against law firms threaten this entire system of democratic governance. If allowed to stand, they will send a chilling message, not only throughout the legal industry but for any business operating in America.
Be on Trump’s good side or else.
American society may not like lawyers. We’re an easy lot to make fun of and hate. We poke at your words. We question everything. I get it — it can be really annoying.
But society needs us just as it needs entrepreneurs. It needs lawyers to be able to operate freely, whether that’s representing the defendant charged with first-degree murder or the law firm that has fallen under Trump’s ire.
If you think you’re safe because you’re not a lawyer at one of these big law firms who admittedly do not extract much sympathy from society, don’t be so sure. I will leave you with this famous poem from Martin Niemoeller, which you can find at the Holocaust memorial in Boston, Massachusetts.
“They came first for the Communists, and I didn’t speak up because I wasn’t a Communist.
Then they came for the Jews, and I didn’t speak up because I wasn’t a Jew.
Then they came for the trade unionists, and I didn’t speak up because I wasn’t a trade unionist.
Then they came for the Catholics, and I didn’t speak up because I was a Protestant.
Then they came for me, and by that time there was no one left to speak up.”
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