HIGHLY SENSITIVE AND CONFIDENTIAL
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To: Management Committee, Dewey Cheatem & Howe LLP
From: Alphonse Thaddeus Vanderbilt-Morgan, Chair, Corporate Department
John Maximus Rambo, Chair, Litigation Department
re: possible participation by Dewey Cheatem as amicus in the Perkins Coie case
Question Presented
The Management Committee has asked for our joint advice on the question whether our firm should join with others as an amicus curiae in support of plaintiff in Perkins Coie v. United States Department of Justice.
Answer to Question Presented
After consulting with our colleagues and with each other, we concur in advising the Management Committee that the firm should not, at the moment, join in the amicus curiae brief.
We see the current situation as evolving rapidly. Our firm should establish a task force to monitor the situation, carefully assess alternatives, and be prepared to move when the time comes.
Analysis
In formulating our response to the Management Committee’s inquiry, we have placed most emphasis on the following eight factors (which we have not tried to rank order in importance.
1. Inevitable Litigation Victories by Perkins Coie (#66), Jenner & Block (#51), and WilmerHale (#31). (Throughout this memo, numbers in parentheses are a firm’s rank order in profits per partner.)
Constitutional case law establishes beyond peradventure of doubt that the government may not deprive a person or organization of a benefit in retaliation for that person or organization’s exercise of its constitutional rights. Moreover, the legal filings by the three law firm plaintiffs demonstrate clearly that they, and potentially their clients and other affiliates, were denied due process of law by President Trump’s unilateral and unsupported decision that they were guilty of some fault.
Each of the three firms has, with lightning speed, asked for and received a temporary restraining order. There is absolutely no reason to expect a more favorable outcome for the Administration as the cases move through the courts.
In our judgment, the case for the Trump Administration is indefensible—so bad, in fact, that do not know what Justice Department attorneys may argue on behalf of the Administration without jeopardizing their own standing at the bar.
Of particular note, people or agencies charged with unconstitutional retaliation generally try to confuse the issue by offering some pretext for their behavior. Here, however, whoever was preparing documentation in support of the Administrations executive orders against the three firms seems to have gone out of their way to create a written record that conclusively demonstrates the unconstitutionality of the orders.
2. Futility of an Amicus Brief by Other Firms. The three plaintiff law firms are very well represented: Perkins by Williams & Connolly (#89), Jenner by Cooley LLP (#23), and WilmerHale by the prestigious conservative boutique firm Clement & Murphy. Peer firms like ours have no additional legal insight to bring to bear on the situation, nor would a firm such as ours have some useful insight into the facts that might help a court to decide any of these three cases.
Our best judgment is that possible amicus briefs by other law firms, not presently involved in the lawsuits, would have zero likelihood of influencing the ultimate outcome of any of the cases.
3. Symbolic Support for the Plaintiff Law Firms and for the Rule of Law. We agree with those who have emphasized the need for joint action to support the rule of law. But we believe this is best done by the legal profession collectively, acting through the American Bar Association and other bar groups such as the New York City Bar Association. The ABA, the NYCBA, and many others have forcefully condemned the Administration’s challenges to the rule of law.
Our able young partner Mahmoud Sadiq serves on the NYCBA’s Board of Directors, and our senior partner Ophelia Orotund sits in the ABA House of Delegates. Both have supported resolutions condemning threats to the rule of law. We encourage them to continue along that path.
In short, our firm’s public position on the rule of law should already be clear to all concerned.
4. Potential Downsides of Going Out of Our Way to “Poke” President Trump. A small number of our clients, including two large and important clients, have been in touch with members of the firm to express concern if we “stick our heads up.”
Within the partnership, two senior deal makers, Ainsley Smart and Alexander Hurlbutt, have expressed particular concern. Our sense is that Ms. Smart and Mr. Hurlbutt would be reluctant to move elsewhere, but you never can tell for sure. Among our partners, the strongest opponent of anti-Trump action is the head of our Washington Office, Jayson Opponlander, who hopes to steal business from WilmerHale and from Covington & Burling, which Trump has targeted and which may be in negotiation with him.
By contrast with our Corporate Department, the instinct of many of our litigation partners is to stand up for the rule of law.
Finally, those involved in recruiting and retaining our associate work force advise that just standing pat probably will not affect us much, one way or another, in the current situation. But that could change as events evolve.
5. Piggybacking Off of Current Litigation by Perkins etc. Unless we join as an amicus againstPresident Trump, we do not see any big risk that our firm might become a target of his ire. But if that should happen, the relevant case law on which we will rely in defense us is already being created in the three pending cases.
6. Planning for a Hypothetical Trump Executive Order Against Dewey Cheatum. In our judgment, points one through five suffice to support our conclusion that the firm should not join an amicus brief at this time. That said, in our judgment, it is vital for the firm to begin to plan what do in the event of possible executive order against us. We believe a task force should be formed to, among other things,
- monitor developments in the three firms’ lawsuits versus the Administration,
- monitor client reactions to the split among the major law firms, and
- closely watch the effect on associate recruitment—will Scadden (#12) and Paul Weiss (#21) keep on getting the pick of the litter? Or will their brands suffer from a reputation for cowardice and weakness, leading to difficulty in recruiting associates?
Pending the monitoring of future developments, we have no definitive recommendation at the moment as to how the firm should respond to a hypothetical executive order against us.
7. Special Attention for DEI. We have a strong DEI program. Its purpose—and, we believe, its effect—is not to discriminate against anyone, including heterosexual white males. Its purpose is to make sure that the best and the brightest feel comfortable at our firm, regardless of gender, sexual orientation, religion, or ethnicity. We want the best people we can get, and we want their best efforts.
If necessary, we can and will defend the legality of our program in court.
While we do not recommend modifying our DEI program at this time, we nevertheless think the proposed new task force should take soundings to determine whether any of our partners, associates, or other employees feels like a victim of discrimination. If so, the firm should look into the matter and determine whether any action is required.
8. The View from 30,000 Feet. Finally, our proposed task force should monitor not only developments like associate recruitment and client sentiment but also the big picture.
From where we sit today, it looks as if President Trump and his advisers have initiated an aggressive authoritarian project. That project’s goals and techniques appear similar to Victor Orbán’s—except that President Trump seems to be trying to accomplish in ten weeks what Orbán did in ten years. Moreover, Orbán took care to promote the economic interests of his supporters while Trump seems to want to harm everyone.
In short, on the available evidence, President Trump literally does not know what he is doing.
Implication: over the long run, firms that appear supportive of President Trump, or that appear subservient to him, are likely to suffer a significant reputational loss, and conversely.
Accordingly, our firm must be ready to take appropriate action at the appropriate time.
Facing MAGA 