Harvard has two lawsuits pending against Team Trump. The first one challenges the draconian cuts in federal research grants—said by Team Trump to be justified by the university’s purported “antisemitism,” its purported discrimination against white people, and a hodgepodge of other bellyaches, some vague and hard to pin down. I wrote about it on April 22.
The Harvard legal team elected not to ask for a temporary restraining order and preliminary injunction, but instead to demand a highly, highly expedited summary judgment process. Judge Burroughs’ order of April 28 indicates that Team Trump agreed to the schedule, leading up to oral argument on July 21—and presumably a district court decision by the end of the summer.
That means that teams of lawyers are reviewing evidence that probably runs to hundreds of thousands of pages and distilling it into legal briefs and accompanying exhibits.
In a normal case, one could expect the process to take several years. Here, it is scheduled to take only several months.
I count 17 lawyers on the Harvard legal team. It’s a little top heavy, but, that said, there are a lot of spear carriers, too. They have been getting very little sleep these past few weeks.
Been there, done that.
And a related point: wholly apart from the fact that Team Trump’s legal position eats shit, I very strongly suspect that the government’s legal team is being outmanned, outthought, and outgunned by Team Harvard.
But we shall see.
The Lawsuit about Foreign Students
As you may know, this is a separate lawsuit. On May 22, Secretary Kristi Noem—that’s the person who doesn’t know what habeas corpus means—revoked Harvard ability to have any foreign students. Harvard obviously saw that one coming a mile away. The next day, May 23, it filed a new lawsuit, asked for a temporary restraining order, and received its TRO within just a few hours.
That was just a few days ago. I assume that a preliminary injunction will soon be granted, that the First Circuit Court of Appeals will rule promptly In Harvard’s favor, and that the case will reach the Supreme Court next fall.
In the meantime, though, it’s reasonable to expect that a fair number of the 6,800 foreign students normally to be found on campus—often as teaching assistants and lab assistants—will take flight.
A Change in the Harvard Legal Team
For the second case, Harvard modified its team. Once again, Steven Lehotsky, of Lehotsky Keller Cohn LLP—revered litigator for Federalist Society causes—signed the complaint and identified a number of his partners and associates as helpers in the case. Once again, one partner each from Quinn Emanuel and King & Spalding are on the case. But Ropes & Gray is out, in the new case, replaced by a team of very heavy hitters from Jenner & Block.
As far as I can tell, Ropes & Gray is still on the first case, the one about grants. I expect their lawyers are overwhelmed with that case. Also, the head of the Ropes & Gray team has an excellent reputation, but he seems to know a lot about white collar crime, not constitutional law.
With luck, the new folks on Team Harvard from Jenner & Block will well and truly give ‘em hell.
And Finally, a Few Random Facts
There are about 320,000 living alumni of Harvard University. They tend to be richer than average. An estimated 18,000 of them are believed to have more than $30 million in wealth. Of those 18,000 very wealthy alumni, the average net worth is said to exceed $300 million.
Four top litigation partners at Paul, Weiss have walked out the, together with their associates, their paralegals, their secretaries, and their book of business. In my experience, this sort of thing happens all the time at the big firms, even without cowardly deals capitulating to a would-be tinpot dictator. I wish I were persuaded that the walkout was over the Trump deal—and that it presages severe harm to the Cowardly Nine firm—but if wishes were horses, we’d all take a ride.
And if you don’t like my hot take on the matter, then ask perplexity.ai “Does the departure of four litigation partners at Paul Weiss mean anything?” Their AI chatbot’s opinion is quite different from mine.
How Many Federal Officials Can Trump Fire?
According to statutory law, a president cannot fire, without cause, a member of the National Labor Relations Board or of the Merit Systems Protection Board. Trump did it anyway. The lower courts told him to reinstate the two individuals, pending a final decision on the merits. Over the dissent of the three liberals, the rest of the court ordered that, until the case is decided on the merits, the two fired officials can stay fired.
The legal issues are a teense complex, and if you’re interested, check out this article from SCOTUSblog.
My hot take: A majority of the Supreme Court seems to be getting ready to shitcan a century of precedent, and to destroy the independent status of heretofore independent agencies like the Federal Trade Commission.
What Else Happened to Team Trump in the Courts Last Week?
Nothing good for Trump. Harvard filed a new lawsuit against Team Trump, challenging the Administration’s refusal to allow any foreign students next year. The judge granted Harvard a preliminary injunction so fast that he barely had time to read the papers.
Another judge granted Jenner & Block’s request for a preliminary injunction against Trump. And a third judge ruled that Trump had acted illegally against the United States Institute of Peace.
A Reminder About a Fundamental Rule of Constitutional Law
At a Senate hearing, Senator Maggie Hassan, Democrat of New Hampshire, asked Ms. Noem about the issue. “Secretary Noem,” she asked, “what is habeas corpus?”
“Well,” Ms. Noem said, “habeas corpus is a constitutional right that the president has to be able to remove people from this country and suspend their right to—”
Ms. Noem’s answer, which echoed the Trump administration’s expansive view of presidential power, flipped the legal right on its head, turning a constitutional shield against unlawful detention into broad presidential authority.
Some people react to Trump-related Supreme Court decisions the way they react to baseball games. This season Team Trump was down 4 to 2 to Team Resistance, but yesterday Team Trump won, so now he’s only down 4 to 3.
If this is the way you think, then I have two pieces of advice: First, stop thinking this way, and try to figure out what’s actually going on in these court cases.
Second, if you reject my first piece of advice, then don’t count this as a Team Trump loss, because this particular game is far from over.
Hint: Only Justice Jackson disagreed with yesterday’s order. The other two liberals went along with it.
This is a clue.
Here is what the controversy appears to be about. Current law affords any President discretion—and listen up, I said “discretion”—to grant temporary protected status to immigrants who cannot safely return to their country. Recently, Team Trump exercised that discretion to pull protected status from several hundred thousand Venezuelans. Team Trump cited no evidence that conditions in Venezuela had changed for the better. Instead, their discretionary decision was based on factually unsupported bullshit about Tren de Aragua, etc., etc., etc., etc.
Now, what is a court supposed to do with this shambolic mess? Should it rule that a president lacks legal power to exercise lawful discretion if his reasoning is bullshit and arrant nonsense? Or is that approach a bridge too far in terms of constitutional separation of powers?
Yesterday, the Supreme Court decided to kick the can down the road for a mile or two. In July, the Ninth Circuit Court of Appeals is going to hear the case “on the merits” (as we shysters say). And in the meanwhile, individual Venezuelans about to be deported are entitled to a judicial hearing. So observed the Supreme Court in passing.
I’m not a mind reader, but I assume that’s why Justices Kagan and Sotomayor went along with the majority.
So this particular game isn’t over—at least not yet. But I think that the interference-with-presidential-discretion argument may, in the end, carry the day. It’s always problematic to create a legal rule that says, “You are hereby forbidden to act like an asshole and a jerk.” The courts may deem in prudent to retreat to a rule that says “You are hereby forbidden to exercise legal authority that you clearly don’t have.”
And that would mean disaster for more than a million Venezuelans, Haitians, Nicaraguans, and Cubans now residing in the United States–people whose lives may be shattered on the alter of judicial restraint.
Yesterday, May 16, the Supreme Court issued another ruling in the case of the Venezuelan people than Trump wants to deport to a gulag in El Salvador; read the opinion here. I posted about this case on April 19,April 20, and April 22.
The May 16 decision consists of (1) an eight-page unsigned (“per curiam”) opinion on behalf of the Chief Justice, the three Trump-appointed justices, and the three liberal justices, (2) a two-page concurring opinion by Justice Kavanaugh, and (3) a 14-page dissenting opinion by Justice Alito, joined by Justice Thomas.
Although the majority, per curiam opinion did not use words such as “bad faith,” “fibbing,” or “too cute for words” in describing the Justice Department’s position, it clearly implied that the government attorneys were prevaricating with the Supreme Court about the government’s plans to whisk the plaintiffs away—and then claim the Court had no jurisdiction as to individuals located in a foreign country.
The Court ordered, once again, that the Venezuelans should stay in this country pending further legal proceedings, and it remanded the case to the Fifth Circuit Court of Appeals for further consideration of how due process should work under the Alien Enemies Act, along with a variety of other considerations.
Justice Kavanaugh agreed with the majority’s analysis but would have kept the case in the Supreme Court and have the Court eschew further shilly-shallying, and just decide the damn case.
In his dissent, Justice Alito enlarged ad nauseam on the multiple ways in which the majority’s truncated, expedited procedure is in tension with the way things are normally done. As indeed they are. No shit, Sherlock. The government was lying to the courts, frog-marching the poor Venezuelans out of the country, and employing every bad faith trick in the books to use the normal, deliberative rules of the law of civil procedure in order to forestall real due process for immigrants.
Let’s look at the situation from 30,000 feet. What do we see?
First, Team Trump’s legal strategy—along will all the legal tactics that flow from that strategy—is to replace rule of law with a Ptemkin village that looks, from the outside, something like rule of law, but is not in fact rule of law.
Second, that legal strategy is doomed to failure unless a critical mass of the judiciary—and particularly a critical mass of the justices of the Supreme Court—are prepared to go along with it. (Sure, Trump could just order the police to arrest or kill all the members of the Supreme Court, and if the police obey the order, then Trump would win. But in that situation, the outcome would not be a legal Potemkin village, but rather a legal wasteland.)
Third, Team Trump seems to have thought that Justices Alito and Thomas, plus the three Trump-appointed justices would embrace the Potemkin village approach. Well, if that’s what Team Trump thought, then it appears they were right about Alito and Thomas but wrong about Kavanaugh, Gorsuch, and Barrett.
The real news here—the Man Bites Dog element—is that the three Trump-appointed justices did not bark in the night at Trump’s command.
Logical conclusion: the days are hastening on to the place where Team Trump is either going to have to back down on multiple legal fronts or it is going to have to declare, in words that are clear to the least intelligent folks among us, that the rule of law is over.
If it choose the latter option, it will be subject to vehement objections by all the Trump justices appointed in the first term–as well as a great many of the Trump Judes appointed to the courts of appeal and to the district court.
The unvarnished assault on the rule of law will come at a time when Walmart is running out of cheap goods, then Americans are being injured in multiple ways by cuts in government services, when small businesses are going out of business, and when Walmart is running out of cheap imported goods.
The immediately preceding post gave links to sources that summarize how major law firms have reacted to Trump’s nonsense. Here, using FAQs, I give an account of the current state of play.
Among the law firms that have been targeted by Trumps, how many have sued, and how are the lawsuits going to date?
On March 6, Trump issued an executive order against Perkins Coie—“Where Innovation Meets Infrastructure”—because he was butt hurt that the firm had previously represented Hillary Clinton. Five days later, on March 11, the law firm sued. On May 2, less than two months later, the district judge issued a 100+ page order permanently enjoining Trump from carrying out his threats.
Presumably, Team Trump will appeal the decision, but that has not happened as of this writing.
Why did the district judge in the Perkins Coie case reach a final decision in record time?
Because Team Trump had no cognizable defense.
Or, as we used to say back in New York, their only argument is the so-you-caught-me defense.
What about the other law firm lawsuits?
WilmerHale filed its case on March 28, and procured a preliminary injunction—not a permanent injunction—on April 24. Team Trump can still appeal the PI ruling, if it so chooses, or it may decide to wait until the decision on a permanent injunction.
Jenner & Block also filed on March 28. Judge Howell, the judge in the Perkins Coie case, rejected Jenner’s attempt to get the case assigned to her as a “related case.” The lawsuit was then bounced to Judge Bates, who granted a temporary restraining order the same day.
Fast footwork, that.
There was a hearing on April 28 on Jenner’s request for a final ruling it its favor, but the judge has not yet issued his decision. Presumably, he is writing his opinion—with due attention to the 100+ page ruling in the Perkins Coie litigation.
Meanwhile, a temporary restraining order against Trump remains in effect.
Susman Godfrey was the last of the four, filing its complaint on April 11. A temporary restraining order was entered and remains in effect. On May 8, Judge AliKhan held a hearing on the question whether Team Trump should be enjoined permanently, but no decision has been released as of this writing. However, back on April 15 when he issued the TRO, the judge described Trump’s action against the Susman firm as a misuse of presidential authority and a “shocking abuse of power.”
This would be a clue about how the good judge is likely to rule.
Apart from the four law firms that have sued Team Trump, which other firms have been targeted by punitive executive orders?
In alphabetical order they are:
Covington & Burling
Elias Law Group
Milbank
Paul, Weiss, Rifkind Wharton & Garrison
Skadden, Arps, Slate, Meagher & Flom
Willkie Farr & Gallagher
Have all of these firms reached “deals” with Trump?
No. Covington and Elias have not. Milbank, Paul, Weiss, Skadden, and Willkie all have capitulated.
Have other big law firms bowed down under the mere threat of a punitive executive order?
Yes, indeed. In alphabetical order they are:
Allan Overy Shearman Sterling
Cadwalader, Wickersham & Taft
Kirkland & Ellis
Latham & Watkins
Simpson Thacher & Bartlett
So, all together, nine big law firms have signed “deals” with Trump?
Correct.
And why are you putting quotation marks around “deals”?
What’s the story with Covington & Burling and the Elias Group, both of which were targeted by executive orders and neither of which has a “deal” with Team Trump?
Covington is a major law firm headquartered in Washington, D.C., has a significant lobbying operation, and recruits politically prominent individuals from both parties. Its best known current partner is Eric Holder, the former Attorney General.
As far as is publicly known—and that’s an important qualification,
Team Trump has not taken any serious enforcement action against Covington, which continues to go about its ordinary business,
Covington has not lost clients or lawyers,
Covington has neither sued Team Trump nor issued any fire-breathing declarations against Trump, and
There are no ongoing negotiations.
And why is nothing happening (as far as is publicly known)? Maybe (1) Covington, being the well-connected firm that it is, has some threat to hold over Trump’s head. Or maybe (2) Covington has done something valuable for Trump, but not told anyone about it. Or, perhaps most likely (3) with both sides knowing that Covington could walk down to the courthouse any day of the week and get an injunction, both sides decided to see how the four pending cases play out, once they reach the Supreme Court, and will then reconsider their position.
The Elias Law Group, a small, progressive firm focusing on voting rights and other public interest issues, has just told Team Trump to go to hell.
In view of all the foregoing, what are we to make of the claim by the head of Paul, Weiss that he had to capitulate because his firm faced an “existential threat”?
It’s reasonable to conclude that the head of Paul, Weiss showed poor situational awareness, exercised bad judgment, and demonstrated an attitude at odds with his duty as a legal professional.
The nine capitulating law firms have, in the aggregate, “agreed” to provide over $900 million (in value) in pro bono legal services to causes mutually agreed with Team Trump. How does that stand?
Each of the nine firms has “agreed” to provide pro bono services in identified general areas, like “promoting justice” or “opposing antisemitism.” And Trump has made some public noises about the kinds of legal services he has in mind. But, as far as is publicly known,
None of the nine firms is currently providing pro bono services to anyone, pursuant to their Trump “deals,” and, indeed,
There are no reports that Team Trump has asked a specific firm to take on a specific pro bono client.
Have the nine capitulating law firms suffered negative effects such as client departures, attorney resignations, and reduced recruitment of the ablest law school graduates?
There have been reports of some resignations by attorneys at other capitulating firms, but, thus far, as far as is publicly known, concrete harms have been limited.
But push will shortly come to shove. To take one example: Kirkland & Ellis expects to welcome more than 500 “summer associates” (rising third-year law students) next month, at its various offices, and probably an equal number of law graduates this fall (after they have taken their bar exams).
Of those anticipated hires, how many will actually show up?
Maybe all of them, or maybe not. I don’t know. But I do know that, for those young men who descend on the K&E home office in Chicago, when the visit the men’s room they will find two kinds of hair spray and two brands of mouthwash. Their breath will smell of roses, but, otherwise, the stink will be pungent and lasting.
Finally, is the real effect of the nine capitulations something that isn’t written down on paper, namely, the cowardly law firms’ decision to stay away from clients and causes that Trump doesn’t like, both paid and pro bono?
I have been asked for a summary of how law firms responded to Trump’s threats.
There appear to be two indices.
One tracks the “AmLaw 200”—the top 200 firms, as determined by the American Lawyer. It’s found here. The 200 law firms are listed in order of their gross worldwide revenues. But, to give additional context, the rightmost column gives information on each firm’s average profit per equity partner. For example, a firm with a very large number of lawyers may rank high in gross income but lower in profit per average partner.
This first index is called the “Biglaw Spine Index,” a demonstrates the correlation between high revenue and profits and willingness to capitulate.
Another comprehensive index, prepared by Georgetown Law students, will be found here.
Meanwhile, over 800 law firms are said to have signed on to amicus briefs like this one in the lawsuit brought by WilmerHale.
The Constitution has this to say about the presidential oath of office:
Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation: – “I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”
The Constitution has this to say about the role of the courts:
The Judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior … The Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution [or] the Laws of the United States …
When big law firms attacked by President Trump decided to make a deal with him rather than fight, many did so because their leaders feared that clients would abandon a firm caught on the administration’s bad side.
Now that logic may be getting less compelling. A major company, Microsoft, has dropped a law firm that settled with the administration in favor of one that is fighting it. …
On April 22, several attorneys at the law firm Simpson Thacher & Bartlett informed the Delaware Court of Chancery that they would no longer be representing Microsoft in a case related to the company’s 2023 acquisition of the video game giant Activision Blizzard, according to court filings.
Simpson Thacher reached a deal with the White House last month in which the firm committed to perform $125 million in free legal work for causes acceptable to the Trump administration. In a joint statement with other firms making similar agreements, Simpson Thacher said the pro bono work would be on behalf of “a wide range of underserved populations.”
On the same day that the Simpson Thacher lawyers filed paperwork withdrawing from the Microsoft case, at least three partners at the firm Jenner & Block informed the court that they would be representing Microsoft in the case. Jenner is fighting in court to permanently block a Trump administration executive order targeting its business. …
In some cases, a client may worry that a law firm that has reached a deal with the White House has a conflict of interest that prevents it from aggressively representing the client. For example, the client may be a defendant in a lawsuit brought by the federal government and worry that a settling law firm would be reluctant to stand up to the administration.
Other clients may have broader concerns. A senior partner at another firm that does not have an agreement with the White House said his firm was beginning to attract clients from firms that had settled with the administration. The partner, who was not authorized to discuss client matters publicly, said prospective clients had indicated that they had lost confidence in settling firms for not standing up to an attack on the rule of law.
Some firms challenging the administration have sought to capitalize on this frustration, suggesting that their pushback reflects a commitment to fight on behalf of their clients as well.
The window of opportunity that allowed President Trump to overwhelm his adversaries with an onslaught of executive orders dismantling core American institutions is closing.
How does a stymied autocrat deal with defeat? As the opposition gains strength, frustrating the nation’s commander in chief, how will Trump respond?
It is unthinkable to imagine him graciously acknowledging defeat, changing direction and moving on.
Will he claim victory in defeat? Will he try to provoke his adversaries into violence in order to invoke the Insurrection Act?
Trump’s unpredictability makes it impossible to answer these questions with any certainty, but as his actions in the first three months of his second term demonstrate, Trump’s choices veer to the extreme. …
If, in the face of adversity, Trump and his allies attempt to overturn democracy, what are their chances? I asked Herbert Kitschelt, a professor of international relations at Duke and the 2025 recipient of the prestigious Johan Skytte Prize in political science, that question, and he provided a nuanced reply by email: “No scientific, evidence-based investigation can currently provide a factually grounded prognosis” on “whether and how Trump and the Christian evangelical-nationalist-Southern wing of the Republican Party might break the democratic Constitution of the United States,” he wrote.
Instead, Kitschelt argued, it is possible to “outline the forces that may impinge on whether this process will take place or not.”
Kitschelt then specified the four factors working in favor of the establishment of “an authoritarian coalition in the United States”:
U.S. technological innovativeness and productivity gains — more so than in other advanced capitalist countries — have generated anxiety among many occupational groups.
The U.S. has a weak welfare state — in terms of pensions, health care, unemployment insurance, aid to families with children, public education — when compared to just about any other advanced capitalist country.
America is the most inegalitarian advanced Western country, in terms of income and wealth. That induces rich people to promote politicians who distract the economically worse off from questions of economic distribution and focus their attention on issues of political governance, culture war, racial and ethnic hierarchies and nationalist claims to global supremacy.
Unlike any other Western democracy, America has a deeply antidemocratic, intolerant, illiberal religious strand.
Kitschelt went on to describe conditions in the United States that “are adverse to the victory of an authoritarian coalition” and are, in contrast, favorable to democracy:
America’s civil society: If it awakens from its current shock and slumber, signs of which are already emerging, it is likely that it will become a powerful force to uphold democracy.
Most importantly: American capitalism, large segments of the U.S. business class, whether in finance, I.T. and A.I., U.S. manufacturers in global production chains (vehicles, aerospace, pharma, etc.) and U.S. culture industries are averse to a MAGA & Tea Party authoritarian coalition. Populism undercuts property rights and the rule of law, rendering it impossible to make rational, profit-generating, long-term business investments.
A severe economic crisis, which Kitschelt believes is probable, given current trends, would sharply undermine Republican prospects in the 2026 congressional elections, which might prompt Trump and his allies to “realize that they cannot win a free and fair election and actually might face a defeat in the midterms severe enough to precipitate the impeachment of both president and vice president.”
The question then becomes, in Kitschelt’s view:
Will evangelical-nationalist clero-fascism — with other MAGA and Tea Party currents in tow — be capable of converting America into an electoral autocracy faster than U.S. civil society and large parts of the business sector will be able to mobilize a defense of American democracy and to stiffen the spine of the U.S. judiciary to preserve American institutions?
Facing MAGA 