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.
Facing MAGA 