With clear eyes, hard facts, critical thinking, new political strategy, empathy, and a soupçon of Schadenfreude
Dana Milbank (Washington Post), As Trump mayhem spreads, MAGA unity cracks: From the Wall Street Journal editorial board to Fox News, capitulation is on the way out.
Daily Kos, 14 Signs That The Tide is Turning in OUR Direction: GNR [Good News Roundup]
Unitarian Universalist Congregation of Atlanta, We Have Higher Executive Orders (forthcoming sermon for March 30, available at https://www.youtube.com/watch?v=Np1WthUnKks)
Comment: You don’t say!
N.Y. Times, Trump Suffers Day of Losses in His Retribution Campaign Against Law Firms
Comment: Just cry me a river.
Politico, If Trump Defies the Courts, It Will Backfire Badly
Comments: Despite the headline, the article mostly addresses this question: “Does the Trump administration plan to ignore or defy future court orders that it disagrees with—perhaps even an order from the Supreme Court?”
The author marshals arguments for the view that, at the end of the day, Trump will obey the courts, because he will understand and abide by his own self-interest.
The author might be right. I strongly suggest you read the piece.
I agree that, if Trump tells the Supreme Court just to pound sand, that will end the decades-long project to remake the courts into a powerful force for economic and social conservatism, all in the name of “federalism,” the Constitution, “originalism,” and “textualism.”
All hail James Madison!
But what the author does not say is that ending that decades-long Federalist Society project makes no nevermind if you plan a permanent rightwing dictatorship based on the exercise of ruthless force.
If you see our future as continuing a contest between two parties, then the Federalist Society project is important. If you see our future as fascist dictatorship, then the Federalist Society project is worth no more than a bucket of warm spit.
And let me add this: Trump is a doofus, and he has willfully surrounded himself with a coterie of doofi.
To me, the evidence strongly indicates that some of the doofuses are trying maneuver Orange Mussolini into a position where he will think he has not choice but to defy the Supreme Court.
“They’re all bending and saying, ‘Sir, thank you very much,’” Mr. Trump said, adding that they were asking, “‘Where do I sign? Where do I sign?’”
Jenner & Block, WilmerHale both file complaints, and both are granted temporary restraining orders by the close of business the same day.
The Sheep are Separating from the Goats
There are reports that Skadden Arps is about to do a deal with Trump along the lines of the Paul Weiss capitulation. I am feeling nauseous. But all is far from lost.
Jenner & Block is a large, Chicago-based firm with a number of offices. It is among the top 100 American firms in profit per partner. It heavily emphasizes litigation, including a serious amount of pro bono work—much of it for organizations Trump does not like.
When the firm got in Trump’s cross hairs, it responded, in words or substance, “Fuck You Very Much.”
The firm’s statement of today reads,
Today, Jenner & Block filed a lawsuit to stop an unconstitutional executive order that has already been declared unlawful by a federal court. We expect to prevail quickly.For more than 100 years, Jenner has stood firm and tirelessly advocated for our clients against all adversaries, including against unlawful government action. We once again go to court to do just that. To do otherwise would mean compromising our ability to zealously advocate for all of our clients and capitulating to unconstitutional government coercion, which is simply not in our DNA.
Jenner & Block’s complaint, filed on its behalf by Cooley LLP, is 64 pages long and alleges 13 constitutional violations.
WilmerHale is the union of the old DC-based Wilmer Cutler & Pickering and the old Boston-based Hale and Dorr. It has 1000+ lawyers, and is particularly prominent in litigation. It was recently ranked as number 31 among American law firms.
To represent the firm, WilmerHale retained renowed conservative attorney Paul Clement, of whom Wikipedia notes,
During his career, Clement has argued cases on behalf of many conservative causes, such as opposing gun control;[4][5] defending a ban on federal recognition of same-sex marriage;[6][7]advocating to enjoin the Affordable Care Act;[8][9] defending Republican gerrymandering in North Carolina;[10] and, as Acting Solicitor General, defending the Controlled Substances Act under the Commerce Clause,[11] as well as the Bush administration’s treatment of terrorism suspects.
Mr. Clement’s complaint on behalf of WilmerHale runs to 57 pages, describes in great detail the eleven constitutional violations of his client’s rights, and is a masterpiece.
Also worthy of praise is the brief in support of a temporary restraining order by Williams and Connolly, on behalf of Perkins Coie. Follow the links and read ‘em both.
CHICAGO, March 26, 2025 — We the undersigned bar organizations stand together with and in support of the American Bar Association to defend the rule of law and reject efforts to undermine the courts and the legal profession.
In particular, as outlined by the ABA:
We endorse the sentiments expressed by the chief justice of the U.S. Supreme Court in his 2024 Year End Report on the Federal Judiciary, “[w]ithin the past year we have also seen the need for state and federal bar associations to come to the defense of a federal district judge whose decisions in a high-profile case prompted an elected official to call for her impeachment. Attempts to intimidate judges for their rulings in cases are inappropriate and should be vigorously opposed.”
We support the right of people to advance their interests in courts of law when they have been wronged. We reject the notion that the U.S. government can punish lawyers and law firms who represent certain clients or punish judges who rule certain ways. We cannot accept government actions that seek to twist the scales of justice in this manner.
We reject efforts to undermine the courts and the profession. We will not stay silent in the face of efforts to remake the legal profession into something that rewards those who agree with the government and punishes those who do not. Words and actions matter. And the intimidating words and actions we have heard and seen must end. They are designed to cow our country’s judges, our country’s courts and our legal profession.
There are clear choices facing our profession. We can choose to remain silent and allow these acts to continue or we can stand for the rule of law and the values we hold dear. We call upon the entire profession, including lawyers in private practice from Main Street to Wall Street, as well as those in corporations and who serve in elected positions, to speak out against intimidation.
If lawyers do not speak, who will speak for our judges? Who will protect our bedrock of justice? If we do not speak now, when will we speak? Now is the time. That is why we stand together with the ABA in support of the rule of law.
American Bar Association
Alameda County (California) Bar Association
Alexandria (Virginia) Bar Association
Allegheny County Bar Association (Pennsylvania)
American Immigration Lawyers Association
Appellate Lawyers Association
Arab American Bar Association of Illinois
Association of Professional Responsibility Lawyers
Bar Association of Erie County (New York)
Bar Association of Metropolitan St. Louis
Bar Association of San Francisco
Berks County (Pennsylvania) Bar Association
Boston Bar Association
Boulder County (Colorado) Bar Association
Chicago Bar Association
Chicago Council of Lawyers
Cleveland Metropolitan Bar Association
Columbus (Ohio) Bar Association
Connecticut Bar Association
Contra Costa (California) County Bar Association
Detroit Bar Association and Foundation
Erie County (Pennsylvania) Bar Association
First Judicial District Bar Association (Colorado)
Hawaii Women Lawyers
Hennepin County (Minnesota) Bar Association
Hispanic National Bar Association
Hudson County (New Jersey) Bar Association
Illinois State Bar Association
International Society of Barristers
Kansas Bar Association
Kansas City Metropolitan Bar Association
Kansas City Metropolitan Bar Foundation
Lawyers Club of San Diego
Long Beach (California) Bar Association
Los Angeles County Bar Association
Louisville Bar Association
Maine State Bar Association
Maricopa County Bar Association
Massachusetts Bar Association
Massachusetts LGBTQ Bar Association
Middlesex County (New Jersey) Bar Association
Milwaukee Bar Association
Minnesota State Bar Association
Monroe County (New York) Bar Association
Muslim Bar Association of Chicago
Nassau County (New York) Bar Association
National Arab American Bar Association
National Arab American Bar Association – Michigan Chapter
National Asian Pacific American Bar Association
National Association of Women Lawyers
National Conference of Bar Presidents
National Filipino American Lawyers Association
National LGBTQ+ Bar Association
National Native American Bar Association
New Jersey Women Lawyers Association
New Mexico Black Lawyers Association
New York City Bar Association
New York County Lawyers Association
North County (California) Bar Association
Board of Governors of the Oregon State Bar
Palestinian American Bar Association
Passaic County (New Jersey) Bar Association
Philadelphia Bar Association
Queens County (New York) Bar Association
Ramsey County (Minnesota) Bar Association
San Diego County Bar Association
San Fernando Valley (California) Bar Association
Santa Clara County Bar Association (California)
South Asian Bar Association of North America
State Bar of New Mexico
Virgin Islands Bar Association
Board of Governors of the Washington State Bar Association
Women’s Bar Association of the State of New York
Worcester County (Massachusetts) Bar Association
WSJ Editorial Board: A Shock to the GOP From MAGA Country: A county that went for Trump by 16 points swings to Democrats.
The Editorial Board writes,
Democrats have been lost in the wilderness since Donald Trump’s victory, but if Tuesday’s special election shocker in Pennsylvania is any harbinger, the MAGA Republican ascendancy is perishable. In Lancaster County, which went for Mr. Trump last year by 16 points, Democrats flipped a state Senate seat that the GOP had occupied for decades. …
[N]ationalizing relatively sleepy local races can be politically effective, and Democrats hope to do the same thing next week in Wisconsin’s state Supreme Court election, and in two special elections for open U.S. House seats in Florida.
Voter turnout in such races can be considerably smaller than in November, so the results aren’t always predictive. …
Still, Republicans might want to take this surprise loss in MAGA country as a warning. Mr. Trump’s tariff threats are whipsawing financial markets and the broader economy. The Conference Board said Tuesday that its survey of consumer confidence showed a drop in March, for the fourth consecutive month. Even voters who like the GOP’s policy agenda could be jolted by the impression of chaos in Washington, plus Mr. Trump’s recent focus on retribution.
Democrats got pummeled last year because they followed out-of-touch leaders down ideological rabbit holes. Republicans will suffer if they do the same thing in reverse.
The Guardian, ‘A capitalistic cowardice’: big law firms being threatened by Trump face pressure to speak out
Letter to Paul Weiss from 140 Alumni
Financial Times, Donald Trump widens war on legal industry with order targeting Jenner & Block
Yahoo News, Jenner & Block signals it will stand its ground after being targeted in Trump’s war on Big Law
It’s early days yet, but initial indications are that Jenner & Block is telling Mango Mussolini, “Go pound sand. See you in court.”
That’s consistent with my intuition—for what it may be worth—that in going after Jenner & Block, Trump has picked the wrong bunch of hombres to mess around with.
The New York Times piece is, as the saying goes, deeply reported. In other words, as I would have expected, Paul Weiss is leaking like a sieve.
I don’t want to be a Monday morning quarterback. I don’t want to make this situation into a medieval morality play. I don’t want to make the Paul Weiss imbroglio a simple story about courage versus cowardice. That said, several points occur.
One, despite all the leaking and all the reporting, I doubt that we’ll ever know, I doubt that the Paul Weiss partnership at large will ever know, what all the key players—the firm’s biggest clients and its biggest movers and shakers—said to one another, to bring about Mr. Karp’s surrender.
Two, I think the Paul Weiss brand will never be the same. I think that nobody is going to put Humpty Dumpty together again.
Three, I think the situation with the firm is very fluid. A giant law firm looks solid and powerful and invincible from the outside. Until, one day, maybe it isn’t.
A law firm’s assets consist of people. People have legs. They can walk out the door. When enough of them walk out the door, no more law firm. Ask Dewey & LeBoeuf. Ask Howrey LLP. Ask Thacher Proffitt & Wood. And many others.
Third, and closely related: the associates as well as the partners of Paul Weiss are highly skilled and highly employable. Every mother’s daughter and son of them could get an excellent job somewhere else. Tomorrow. They could be sitting at their new desks this coming Monday.
Fourth, while I’m not predicting the firm’s demise, I do think it will quickly become apparent that the firm has badly blotted its copybook and that its brand will never be the same.
Who wants to join a law firm that has the reputation for being a bunch of wimps?
If you have major legal exposure and need to hire someone to represent you, who wants to hire a law firm perceived to consist of a bunch of doormats?
Increasingly, it looks like Trump versus everyone else. It looks like Trump stands for kakistrocracy, corruption, and chaos.
It looks like a time for the legal community to ask, “Which side are you on, boys, which side are you on?”
Deborah Perlstein (N.Y. Times), They Are America’s Most Powerful Law Firms. Their Silence Is Deafening.
Professor Perlstein is a distinguished constitutional scholar and a professor at Princeton. Her analysis parallels mine in important respects.
I commend her full article to your attention; I won’t attempt to quote or paraphrase all of it. I also strongly commend to your attention Paul Weiss’s side of the story.
Prof. Perlstein writes,
[W]here many ordinary judges, law school deans and public interest attorneys of both political parties have found the courage to push back against Mr. Trump’s anti-constitutional histrionics, Big Law has largely stayed silent or worse.
These firms face a classic problem of collective action: Every individual firm has an incentive to keep quiet, but if everyone stays silent, all will lose. The problem is understandable. It is also solvable. It requires firms to find the courage to act together.
The idea has been much mooted, and a draft joint amicus brief has reportedly been prepared. But, on reflection, I’m strongly inclined to think that
The latter question will come down to whether a majority of the Supreme Court choose to follow the law, or whether they choose to join the Trump ass kissers.
Professor Perlstein evidently agrees that the reasons for collective action are largely symbolic. She says,
[An] excuse circulating among Big Law lawyers is that speaking out won’t make a difference either way. Perkins Coie, after all, won its case without the broad support of its peer institutions.
That argument misses the point. Coming to Perkins Coie’s defense isn’t a decision about litigation strategy. It is about standing up to the administration’s intimidation. Signing on to joint briefs is not the only way to do that. Fellow firms and their clients could contribute to a joint defense fund, to help defray the costs of litigation and lost business for those on the receiving end of Mr. Trump’s score-settling wrath.
The point is for Big Law to do something — anything — as a group to demonstrate that they will continue to place their obligations to their clients and to the law above their fear of the bully. Solidarity can prove that point. And it can shore up the hope we all retain that the world’s strongest economy and oldest democracy will not both, simultaneously, fall.
The excuses made for Big Law’s silence are of course not limited to Big Law. The same collective action problem no doubt informs the discussions taking place inside the corner offices of the firms’ corporate clients, in the boardrooms of major media enterprises, at the gatherings of university trustees. The solutions to such problems are limited. But one tried and true approach remains clear: joining forces to fight back.
A joint statement by the New York City Bar Association and many other bar associations calls for rejecting “any efforts to use the tremendous power of the government against members of the legal profession for performing their duties.”
Note that the leadership of the New York City Bar Association includes many lawyers with leading law firms.
Like many ideas, collective action is a wonderful idea, provided it works. I don’t think it will work unless and until the American business elite comes to its senses and realizes that Trump is, in truth, a tyrannical madman. You are not going to jollify him. You are not going to mollify him with minor bribes, like paying a few million dollars in bogus “settlements” of bogus lawsuits he has brought. He is, instead, a mortal danger to your businesses. And he is a mortal danger to you. Yes, you can bribe him on Monday. But he won’t stay bought. On Wednesday, you’ll have to do it all over again.
You have got to reach the point where you wake up and smell the coffee. Let the DOGE cuts wreak havoc on Trump voters. Let the tariffs wreak havoc on the economy. And then take collective action.
Facing MAGA 