Clients are Fleeing Cowardly Law Firms, and Other Significant Legal Developments
Trump Isn’t Appointing Judges Because He Can’t Find People to Appoint
The Wall Street Journal Does a Deep Dive Into All the Big Clients Saying Ixnay to the Cowardly Law Firms
Wall Street Journal, The Law Firms That Appeased Trump—and Angered Their Clients:
Support for the law firms that didn’t make deals has been growing inside the offices of corporate executives. At least 11 big companies are moving work away from law firms that settled with the administration or are giving—or intend to give—more business to firms that have been targeted but refused to strike deals, according to general counsels at those companies and other people familiar with those decisions.
Among them are technology giant Oracle, investment bank Morgan Stanley, an airline and a pharmaceutical company. Microsoft expressed reservations about working with a firm that struck a deal, and another such firm stopped representing McDonald’s in a case a few months before a scheduled trial.
In interviews, general counsels expressed concern about whether they could trust law firms that struck deals to fight for them in court and in negotiating big deals if they weren’t willing to stand up for themselves against Trump. The general counsel of a manufacturer of medical supplies said that if firms facing White House pressure “don’t have a hard line,” they don’t have any line at all. …
Not long after Latham struck a deal in April, the firm’s chair, Richard Trobman, met with Morgan Stanley’s chief legal officer, Eric Grossman, people familiar with the meeting said. Grossman heard him out about the firm’s reasoning for striking a deal and acknowledged that companies have to do what is best for themselves.
Soon after that meeting, Grossman and other Morgan Stanley lawyers communicated to law firms targeted by the White House that hadn’t signed deals that they were looking to give them new business, the people familiar with the meeting said. …
A top legal executive at another company said she called partners at Paul Weiss before it cut its deal to reassure the firm she would remain loyal, even though doing so risked millions in government contracts. She was shocked when the firm chair Brad Karp announced a deal, she said, and her company has plans to move work away from Paul Weiss.
The day after Paul Weiss struck its deal, female general counsels gathered for a conference in Washington. During a panel at the Women’s General Counsel Network event, a lawyer stood up and said her company had taken steps that morning to pull its business from Paul Weiss. The lawyer received thunderous applause.
About two weeks later, McDonald’s told a court that star Paul Weiss lawyer Loretta Lynch was withdrawing as its attorney in a high-profile lawsuit accusing the fast-food giant of discrimination against Black-owned media companies. Lynch, who had served as attorney general under former President Barack Obama, had been involved with the case for several years. It is unusual for companies to shake up representation close to trial. …
Emotions have run high inside some firms that struck deals, particularly among younger lawyers. At Skadden, Simpson, Latham and Kirkland, some associates have quit over the deals. One associate leaving Simpson wrote in his departure email, shared on LinkedIn, that he refused to “sleepwalk toward authoritarianism.” Partners, too, have left some of the firms that made deals.
At Sullivan & Cromwell, some lawyers have bristled at the role that co-chair Robert Giuffra played in facilitating a deal for Trump to drop an executive order against rival firm Paul Weiss. Giuffra, one of Trump’s personal lawyers, participated by phone in an Oval Office discussion with the Paul Weiss leader, who was there to work out a deal.
The New York Times Does a Deep Dive Into the Legal Issues Raised by Trump’s Purported Invocation of the International Economic Emergency Powers Act
N.Y. Times, A Fiery Brief Fueled by Conservatives Helped Put Trump’s Tariffs in Peril
This is a legally sophisticated yet understandable exposition of the legal issues. Despite the Times’ headline, the article shows how there is a large degree of bipartisan agreement among legal scholars that Trump’s tariffs are unconstitutional.
That bipartisan agreement should help the Supreme Court if and when it rules against Trump on the tariffs.
And, apart from the legal niceties, there is the fact that the tariffs are sending the economy to hell in a handbasket.
In a Cemetery, Sen. Ernst Urges Medicaid Patients to Accept Jesus Before the Republicans Take Away Their Health Care, and They Did a Premature Death
Sleet Well Tonight: An Ignoramus and a Fool is in Charge of Homeland Security
N.Y. Times, Noem Incorrectly Defines Habeas Corpus as the President’s Right to Deport People:
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—”
“No,” Ms. Hassan interjected. “Let me stop you, ma’am. Excuse me, that’s incorrect.”
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.
Trump and Big Law: The Current State of Play
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”?
Because the so-called “agreements” are not legally enforceable and do not even purport to be legally enforceable. See, for example, Just Security, No, the President Cannot Enforce the Law-Firm Deals and Yahoo News, Trump’s Law Firm Deals Are Already Falling Apart.
Are any new “deals” in the works?
I believe not.
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?
In a previous post, I reported on Microsoft’s replacement of a capitulating law firm with a fighting law firm, in major ongoing litigation. More recently, the Wall Street Journal has written about how capitulating firm Cadwalader, Wickersham & Taft is in deep doo-doo. See Venerable New York Firm That Struck a Deal with Trump Is Losing Lawyers: Cadwalader avoided a punitive executive order, but the accord has left the firm in turmoil.
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?
Yes. That is a correct assessment.
It Begins: Xi Forces Trump to Negotiate Against Himself
Washington Post, Trump suggests lowering tariffs on China ahead of talks
The Post writes,
President Donald Trump said Friday that the United States could lower tariffs on China to 80 percent [instead of 145 percent] ahead of a meeting this weekend between his top aides and their counterparts from Beijing. …
The president’s apparent eagerness to get a deal reflects the mounting economic damage from the tariffs he has imposed thus far. China said its exports to the United States dropped 21 percent in April from a year before, and economists have forecast an increased likelihood of a U.S. recession. White House officials have grown alarmed by Chinese curbs on exports of rare earth minerals, used to make military drones, consumer electronics, electric cars and other important products.
Simpson Thacher and Jenner & Block—Big Law’s Answer to Goofus and Gallant—Show the Cost of Cowardice and the Economic Value of Courage
One Swallow Does Not a Summer Make—But I Think This is the Start of a Trend
N.Y. Times, Microsoft Drops Law Firm That Made a Deal With Trump From a Case
The Times writes,
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.
Irrefutable Proof That Trump is an Idiot
I Now Present Irrefutable Proof That Trump is an Idiot
The First 100 Days Illustrated
Facing MAGA 