With clear eyes, hard facts, critical thinking, new political strategy, empathy, and a soupçon of Schadenfreude
Posts about the situation we are in–the good facts, the bad facts, and the terrible facts. Facts that, if taken on board, will let us “know ourselves, know the other side” and go on to win those hundred battles.
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.
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.
A deeply researched article on the goings on at Paul Weiss, based on lots of things, including the thoughts of the firm’s managing partner, who tries to tell his side of the story.
Wall Street Journal, Why Law Firm Paul Weiss Pleaded Its Case With Trump, and Not With a Court: Firm’s decision to cut deal with Trump shocked legal industry bracing for more executive orders.
Open Letter on the Rule of Law from Big Law Firm Associates
Washington Post, New Trump memo seen as threat to lawyers, attempt to scare off lawsuits
Here are some questions. (As I said, I’ll give my personal answers in later posts; others may have different answers than mine.)
Is the “agreement” between Trump and Paul Weiss legally enforceable—and does it even purport to be legally enforceable?
What did Paul Weiss actually “agree” to do?
What lies did Trump tell about the “agreement”?
In addition to the points in the agreement, what points are missing? In other words, what hound dogs are not barking in the night?
When the managing partner of Paul Weiss walked out of his meeting with Mango Mussolini, did the said managing partner think, “Man o man, did I just snooker Trump”?
What did Trump actually want from the “agreement,” and did he actually get the thing that he actually wanted?
Did Mr. Karp, Paul Weiss’s managing partner, overlook the forest for the trees?
Big law firms like Paul Weiss compete in three important dimensions. (1) They compete for the business of rich clients with legal issues. (2) They compete for associates (salaried junior lawyers); central to their business model is hiring able associates, paying them a lot of money—i.e., buying their time at wholesale—and then marking up their time to sell at retail, at exorbitant hourly rates. (3) They compete to steal partners with good “books of business” from other firms, and they strive to keep the partners they have from walking out the door. How will the Trump “agreement” impact Paul Weiss’s ability to engage effectively in these three modes of competition?
Paul Weiss probably expects to hire several dozen new associates from the graduating law class of 2025. How will the Trump “agreement” affect the thinking of those potential new hires? How will it affect their incentives to join—or not to join—Paul Weiss? How many of the 2025 law grads who have Paul Weiss offers are actually going to show up at the firm this summer? How many will decide to look for work elsewhere?
Would it be in the collective self-interest of the big firms to take the “Trump factor” out of their competition for corporate business, their competition for able associates, and their competition for partners?
In the next two weeks or so, is Paul Weiss likely to turn around and modify its position?
If a lot of the big firms decide, on reflection, that they would collectively be better off to stand together against Trump, what steps might they take to implement that decision?
In the next two weeks or so, is it likely that many of the big law firms will come to the epiphany that they need—in their own stone cold self-interest—to take collective action to support the rule of law?
Is Perkins Coie likely to win or lose in its lawsuit against Trump—and would one or more amicus briefs likely affect the outcome substantially?
President Lizard Brain seems to think he can head off the lawsuits against him—there are now well over a hundred, and he’s losing most of them—by punishing the lawyers who represent plaintiffs with legal positions adverse to him. But is there in fact there a constitutional right to sue? And does a litigant have a legal right to counsel of their choice? And is it lawful for the government to punish someone for exercising a constitutional right?
Is collective action against Trump by the major law firms a matter of life and death for democracy and the rule of law, or is it more like Kabuki theater?
If rule of law is ultimately to be preserved, what three factors will achieve the preservation?
And apart from that, how did you enjoy the play, Mrs. Lincoln?
Stephen I. Vladeck (N.Y. Times), The Courts Alone Can’t Save Us
My strong sense is that Trump’s mental illness has advanced to the stage where his situational awareness is severely, severely diminished. As so many have noted, he does indeed have an authoritarian playbook. But it’s not the playbook of a rational wannabe authoritarian.
Perhaps through confirmation bias, this afternoon I call your attention to Amanda Taub’s essay, which draws a sharp contrast between Trump’s approach and that of the dictators presiding over Hungary and Turkey.
Trump—and his MiniMes like Rep. Hageman of Wyoming—seem to think that their own base are a bunch of masochists.
An authoritarian playbook based on madness and sadism toward your own supporters is a dog that won’t hunt.
Trump is right. The one person who can defeat Donald Trump—the one person who is going to defeat Donald Trump—is none other than Mango Mussolini himself.
All Hail Mango Mussolini, savior of the Republic.
No doubt as to who the Big Bad Wolf is.
Notice, please, that the Big Bad Wolf has only two ways of getting what he wants. The first is that he huffs and he puffs and he blows things down.
Huffing and puffing works fine on the First Little Pig, who built his house from straw—and even on the Second Little Pig, who chose wood as his building material. But huffing and puffing has no effect on the Third Little Pig, who used bricks to build his house.
The Big Bad Wolf’s second and last technique is telling lies. We don’t know whether the lies would have worked on the first two pigs, because they succumbed to the huffing and puffing—and got eaten—even before the Wolf had to resort to mendacity.
As to the Third Little Pig, not only does he build a brick house—and thus survive all the huffing and puffing—but he also responds to the Wolf’s bullshit with effective counterstrategy. And, so, at the end of the day, it’s the Big Bad Wolf who gets eaten, not the Third Little Pig.
One might say that the Third Little Pig knows his Sunzi:
Know yourself.
Know the enemy.
Hundred battles.
No peril.
As I said, we know who the Big Bad Wolf stands for.
The First Little Pig stands for the Republican members of the House and Senate. They are afraid of their constituents. Many of them are unintelligent and gullible. The others, the ones who understand what’s going on, do not have the character and moral courage to do their jobs. As the poet said, the best lack all conviction while the worst are full of passionate intensity.
And so, the house made of straw stands for our first branch of government, the United States Congress.
The Second Little Pig and his house of wood stand for those parts of our institutions that are made of somewhat sterner stuff than the house of straw, but that still succumb to the huffing and puffing. Think of Jeff Bezos as the Second Little Pig and the Washington Post as the wooden house.
The Third Little Pig and his brick house stand for those of us who’re going to survive this shitstorm. We go into battle armed with skill, flexibility, and moral conviction. In the end, it will be the Big, Bad Wolf who winds up in the pot. Not us.
To begin with, and for what little it’s worth, I want to be recorded as deploring the instinct to try to win a difficult argument by resorting to ad hominem slurs—“He’s a coward!”—against folks who disagree with you. It’s entirely illogical. It is an extraordinarily poor way to think yourself out of a hard problem. And it gives aid and comfort to the enemy.
So please don’t do it.
If you think Chuck Schumer’s analysis is wrong, fine, but explain why.
If you think my points are wrong, fine, but explain why. Don’t hurl ad hominem slurs.
Now to the main points, which are five.
First, a shutdown would have given extraordinary new powers to the president. See, for example, N.Y. Times, The Democratic Divide: Would a Shutdown Have Helped or Hurt Trump?
Second, as sure as God made little green apples, Trump and his minions would have used those extraordinary powers as tools to wreck the federal government.
Third, and relatedly, the extraordinary legal powers that the law purports to confer on the president during a shutdown would have been used to give what lawyers call the “color of law” to Trump’s wrecking ball. Our side is winning in court on Trump’s abuse of power. We don’t want to give ourselves another legal hoop to jump through.
Fourth, a government shutdown would have supplied Trump and his minions with a splendid “argument” to further confuse an already confused public. “It’s not Trump who’s causing your pain,” they would scream, “it’s those damn Democrats who shut down the government.”
With no government shutdown, ALL THE CHAOS IS ON TRUMP AND HIS ENABLERS.
Fifth, because of points one, two, three, and four, there would be little incentive for Trump and the Republicans to negotiate to get out of the shutdown.
A shutdown is to the Trumpistas as the briar patch was to Brer Rabbit.
Facing MAGA 