Notes on Trump's Campaign Against Big Law Firms
Key Takeaways
Weaponization of Presidency: Donald Trump leveraged presidential power to intimidate and sanction large law firms, compelling some to commit substantial pro bono work to avoid penalties.
Profit Over Principle: Large law firms, being profit-driven and risk-averse, quickly settled due to fears of significant financial harm and client loss, prioritizing business stability over ideological resistance.
Skepticism on Doomsday Scenarios: Claims of firms facing collapse were largely unsubstantiated, as major law firms have historically demonstrated resilience, and alternative scenarios (like partner departures) are more realistic than outright failure.
Targeted Pro Bono and DEI: The Trump administration specifically attacked firms' pro bono activities (especially immigration asylum cases) and Diversity, Equity, and Inclusion efforts, providing no evidence for claims of lawyer misconduct.
Chilling Effects and Rule of Law: These executive orders created a chilling effect, potentially leading firms to reduce politically sensitive client work and controversial pro bono services, raising concerns about the integrity of the rule of law and lawyers' freedom from government reprisal.
Introduction to Trump's Campaign Against Big Law Firms
Author Credentials: Ankush Khardori is a senior writer for POLITICO Magazine and a former federal prosecutor at the Department of Justice, specializing in financial fraud and white-collar crime. He also has private sector experience in complex commercial litigation and white-collar corporate defense. His column, "Rules of Law," critically examines national legal affairs and their political dimensions.
The Campaign: Donald Trump has initiated a controversial campaign to punish and intimidate large law firms, leveraging the presidency to target perceived enemies.
Key Settlements:
Paul, Weiss, Rifkind, Wharton & Garrison: Agreed to commit in free legal work "to support the Administration’s initiatives."
Skadden, Arps, Slate, Meagher & Flom: Heightened the commitment to .
Purpose of Settlements: These deals allowed the firms to avoid sanctions imposed by Trump’s executive orders, which included:
Revocation of government security clearances for the firms’ lawyers.
Prohibitions on entering federal buildings.
Litigation Against Orders: Three other law firms—Perkins Coie, Jenner & Block, and WilmerHale—filed lawsuits challenging the orders and have secured early court victories. A judge in the Perkins Coie case described the order as casting "a chilling harm of blizzard proportions across the legal profession."
Why Law Firms are "Surrendering" Quickly
Unprecedented Pressure: Trump's use of presidential power to target specific law firms is without precedent, creating significant uncertainty.
Temperamental Conservatism: Large law firms are inherently conservative by nature, making them risk-averse when faced with unknown consequences.
Profit-Driven Motive: The fundamental purpose of large law firms is to generate substantial profit; they are generally not driven by virtue, principle, or self-sacrifice.
Potential Harm from Executive Orders: If the executive orders are not judicially blocked, they pose concrete threats:
Litigation Work: Although few large firms require security clearances for their primary business, a ban on entering federal buildings would prevent lawyers from accessing courthouses or meeting with federal prosecutors and regulators, severely curtailing litigation capabilities.
Client Relations: The broader and more significant threat is that clients with any government-facing business might hesitate to use these firms, leading to a reduction in revenue and shrinking profits.
Scrutiny of "Going Out of Business" Claims
Skepticism Warranted: The claim by Paul, Weiss's head that the firm was in danger of collapse without a deal is met with skepticism.
Precedent: The three firms currently challenging the orders have not collapsed.
Historical Resilience: Large law firm collapses are exceedingly rare. During the financial crisis, major firms, including Paul, Weiss, successfully navigated the economic downturn with minimal layoffs.
Hypothetical Doomsday Scenario: This would involve a wave of departures by highly profitable partners, leading to dwindling revenue and a financial spiral.
More Realistic Scenario: Key partners might leave to avoid losing clients who require federal government approvals (e.g., for mergers).
Financial Stability: Paul, Weiss partners are financially secure, and the firm is one of the world's most profitable. Any departures might merely result in a less profitable, but still operational, firm.
The Business Imperative Over Political Principles
Realism for Liberals: Liberals should not be surprised by the firms' actions.
For-Profit Enterprises: Large law firms, especially the most successful ones, operate as distinctly for-profit entities, prioritizing "business imperatives, not political principles."
Pro Bono Work: While commendably associated with liberal causes, pro bono work constitutes a "very small fraction" of a firm's overall activities.
Client Base: The vast majority of their clients are wealthy, powerful, entrenched, and corporate entities.
Client Priorities: These clients value their lawyers' effectiveness, not their political, social, or civic views.
Deconstructing Firm Ideologies
Limited Ideological Variation: Most "white shoe firms" do not possess a strong, uniform cultural ideology, with Perkins Coie being an exception.
Work Environment: These are generally "dull places" where high compensation offsets tedious work. Lawyers are typically too busy or disengaged to discuss personal lives or political views.
Media Ideological Coding: The media often inaccurately codes firms based on:
Campaign Fundraising: High-profile fundraising efforts by individual lawyers.
Government Service: Perceptions about the small number of lawyers who have served in Democratic or Republican administrations (the majority of private practice lawyers do not work in government).
Political Diversity: The elite law firm world is diversified. Firms like Jones Day, Quinn Emanuel, and Kirkland & Ellis have had lawyers in prominent Republican administration roles.
Strategic Bipartisanship: From a business standpoint, strong ideological affiliation with only one political party can be detrimental. For government-facing business, clients prefer firms with credibility and understanding across both Democratic and Republican administrations. For example, WilmerHale and Skadden hired lawyers from the first Trump administration. Paul, Weiss has had former partners leading the DOJ's Antitrust Division under Joe Biden and the Federal Trade Commission during the first Trump administration.
Associate Dissatisfaction and Firm Stability
Associate Reactions: Some associates have expressed dissatisfaction through social media and open letters following the settlements.
Limited Impact: However, author doubts any "major near-term effects" on Paul, Weiss, Skadden, or the wider legal industry.
Reasons for Limited Impact:
High Compensation: First-year lawyers at large firms can earn over , indicating that financial considerations are a primary motivator.
Nature of Work: Associates are not primarily seeking "fun or endless intellectual stimulation"; the work is largely similar across peer firms.
Professional Repercussions: Taking a public stance could lead to negative professional consequences, which often explains the anonymity of associate criticisms.
Recruitment Implications: While firms that settled might face some difficulty recruiting from top law schools, numerous qualified graduates from other "perfectly good law schools" are available and willing to work at these firms.
Trump's Targets: Pro Bono Work
Immigration Asylum Cases: The Trump administration's criticism of firms' pro bono activities predominantly focuses on immigration asylum cases.
Presidential Memorandum: A presidential memorandum issued by Trump, which didn't name specific firms, directed Attorney General Pam Bondi to explore sanctions against firms for alleged misconduct in litigation against the government.
Allegations: The memo claimed that "the immigration bar, and powerful Big Law pro bono practices, frequently coach clients to conceal their past or lie about their circumstances when asserting their asylum claims," aiming to "circumvent immigration policies enacted to protect our national security and deceive the immigration authorities and courts into granting them undeserved relief."
Targeting Junior Attorneys: The memo also encouraged considering sanctions against law firm partners based on the "ethical misconduct of junior attorneys," who often lead pro bono asylum cases.
Author's Assessment: While Trump administration officials often criticize asylum protections and the U.S. legal system is vulnerable to false claims, the memo provided "no evidence" for the assertion that lawyers are systematically coaching clients to lie.
Trump's Targets: DEI Efforts
Persistent Problem: The legal profession has shown minimal progress in Diversity, Equity, and Inclusion (DEI) for minorities and women.
Limited Progress: Despite significant public pushes after the #MeToo movement and the death of George Floyd in , improvements have been "relatively little."
Statistics (National Association for Law Placement data):
Non-white equity partners:
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:
Women equity partners:
:
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Irony: Trump's executive orders cite firms' DEI efforts, which themselves have been largely ineffective.
Lack of Industry-Wide Resistance
Unlikely Unity: It is improbable that law firms will band together to resist Trump's actions.
Early Hesitation: Large firms in New York and Washington initially struggled to unite after the executive order against Perkins Coie, hoping their firms would not be targeted.
Strategic Silence: Firms often resisted taking a public stand to avoid attracting negative attention from the Trump administration or defending politically unpopular competitors. This "strategic silence" appears to have been effective, as CNN has reported the White House is "winding down its efforts" to target specific firms, with only "a small number" of additional orders expected.
Legal and Ethical Implications: Extortion?
Possibility of Illegality: The situation carries the possibility that federal laws are being broken.
Federal Extortion Law: It is a federal crime for public officials to engage in extortion, applicable to officials at federal, state, and local levels.
Third-Party Beneficiary: Even though Trump is not the direct beneficiary of the pro bono work, Department of Justice (DOJ) guidance clarifies that the law applies if the "corrupt payment went to a third party."
Instigator Liability: Both parties in such deals could be held accountable if they are "truly the instigator of the transaction."
Bribery Law: Similar arguments could be made under federal bribery law, though the distinction between bribery and extortion can be complex.
Practical Hurdles:
DOJ Action: The current Justice Department is unlikely to act.
Presidential Immunity: Trump enjoys broad criminal immunity, even after leaving office.
Firm Risk: While law firms theoretically face greater risk from a future administration's DOJ, such action is considered "highly unlikely."
Relevance of the American Bar Association (ABA)
Irrelevance in this Context: For the purposes of these executive orders, the ABA is likely irrelevant.
Republican Stance: During the Trump years, Republicans characterized the ABA as liberal partisans due to its critical ratings of Trump's judicial nominees.
Nuance on Ratings: The author notes that the ABA's critical ratings were not necessarily incorrect. For example, Lawrence J.C. VanDyke, a Trump nominee rated "not qualified" by the ABA but confirmed to the Ninth Circuit, later engaged in controversial conduct (filming himself handling handguns to explain a dissent).
Limited Influence: Ultimately, an ABA statement is "unlikely to actually change a meaningful number of people’s minds," and Trump or the White House are not expected to care.
Chilling Effects on the Legal Profession
Targeting Logic: Trump's executive orders have specifically targeted firms that have worked for the Democratic Party or had partners involved in Trump-related criminal investigations.
Conceivable Effects (at the margins):
Reduced Political Client Work: Law firms may become less willing to represent political clients.
Hiring Decisions: Firms may hesitate to hire former government lawyers involved in politically controversial cases, or even lawyers anticipated to do such work in the future.
Pro Bono Retraction: A broader effect could be firms pulling back on pro bono work that might be controversial with the Trump administration or the Republican Party, particularly immigration-related cases.
Threat to the Rule of Law and Public Perception
Fundamental Principles: In a democratic society, lawyers should not fear government reprisal for their clients or colleagues' political associations. Private parties should be free to choose their legal representation without government bias or interference.
Practical Fallout (Modest):
Limited Impact on General Public: The targeted firms are among the most successful globally, serving a small segment of society. Most individuals and businesses cannot afford their rates and rely on local or smaller firms.
Overall Effect: The practical consequences of these actions on the broader legal landscape are likely "relatively modest."
Public Perception: There is a potential negative influence on the public's perception of the legal profession, particularly among those on the political right.
Existing Unpopularity: The legal profession is already "wildly unpopular," with public polls ranking lawyers below bankers in terms of honesty and ethical standards.
Small Comfort: As a comparison, lawyers currently "outperform members of Congress" in public perception.