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.
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.
It’s early days yet, but initial indications are that Jenner & Block is telling Mango Mussolini, “Go pound sand. See you in court.”
That’s consistent with my intuition—for what it may be worth—that in going after Jenner & Block, Trump has picked the wrong bunch of hombres to mess around with.
Paul Weiss
The New York Times piece is, as the saying goes, deeply reported. In other words, as I would have expected, Paul Weiss is leaking like a sieve.
I don’t want to be a Monday morning quarterback. I don’t want to make this situation into a medieval morality play. I don’t want to make the Paul Weiss imbroglio a simple story about courage versus cowardice. That said, several points occur.
One, despite all the leaking and all the reporting, I doubt that we’ll ever know, I doubt that the Paul Weiss partnership at large will ever know, what all the key players—the firm’s biggest clients and its biggest movers and shakers—said to one another, to bring about Mr. Karp’s surrender.
Two, I think the Paul Weiss brand will never be the same. I think that nobody is going to put Humpty Dumpty together again.
Three, I think the situation with the firm is very fluid. A giant law firm looks solid and powerful and invincible from the outside. Until, one day, maybe it isn’t.
A law firm’s assets consist of people. People have legs. They can walk out the door. When enough of them walk out the door, no more law firm. Ask Dewey & LeBoeuf. Ask Howrey LLP. Ask Thacher Proffitt & Wood. And many others.
Third, and closely related: the associates as well as the partners of Paul Weiss are highly skilled and highly employable. Every mother’s daughter and son of them could get an excellent job somewhere else. Tomorrow. They could be sitting at their new desks this coming Monday.
Fourth, while I’m not predicting the firm’s demise, I do think it will quickly become apparent that the firm has badly blotted its copybook and that its brand will never be the same.
Who wants to join a law firm that has the reputation for being a bunch of wimps?
If you have major legal exposure and need to hire someone to represent you, who wants to hire a law firm perceived to consist of a bunch of doormats?
Increasingly, it looks like Trump versus everyone else. It looks like Trump stands for kakistrocracy, corruption, and chaos.
It looks like a time for the legal community to ask, “Which side are you on, boys, which side are you on?”
Professor Perlstein is a distinguished constitutional scholar and a professor at Princeton. Her analysis parallels mine in important respects.
I commend her full article to your attention; I won’t attempt to quote or paraphrase all of it. I also strongly commend to your attention Paul Weiss’s side of the story.
The Need for Collective Action
Prof. Perlstein writes,
[W]here many ordinary judges, law school deans and public interest attorneys of both political parties have found the courage to push back against Mr. Trump’s anti-constitutional histrionics, Big Law has largely stayed silent or worse.
These firms face a classic problem of collective action: Every individual firm has an incentive to keep quiet, but if everyone stays silent, all will lose. The problem is understandable. It is also solvable. It requires firms to find the courage to act together.
A Joint Amicus Brief Supporting Perkins Coie as a Means of Collective Action?
The idea has been much mooted, and a draft joint amicus brief has reportedly been prepared. But, on reflection, I’m strongly inclined to think that
Perkins Coie’s legal case is rock solid, and the other big law firms could tell the courts nothing—nothing—that the courts don’t already know, and that
a joint amicus brief would do nothing to change the odds of Perkins Coie wins or loses in the courts.
The latter question will come down to whether a majority of the Supreme Court choose to follow the law, or whether they choose to join the Trump ass kissers.
Professor Perlstein evidently agrees that the reasons for collective action are largely symbolic. She says,
[An] excuse circulating among Big Law lawyers is that speaking out won’t make a difference either way. Perkins Coie, after all, won its case without the broad support of its peer institutions.
That argument misses the point. Coming to Perkins Coie’s defense isn’t a decision about litigation strategy. It is about standing up to the administration’s intimidation. Signing on to joint briefs is not the only way to do that. Fellow firms and their clients could contribute to a joint defense fund, to help defray the costs of litigation and lost business for those on the receiving end of Mr. Trump’s score-settling wrath.
The point is for Big Law to do something — anything — as a group to demonstrate that they will continue to place their obligations to their clients and to the law above their fear of the bully. Solidarity can prove that point. And it can shore up the hope we all retain that the world’s strongest economy and oldest democracy will not both, simultaneously, fall.
The excuses made for Big Law’s silence are of course not limited to Big Law. The same collective action problem no doubt informs the discussions taking place inside the corner offices of the firms’ corporate clients, in the boardrooms of major media enterprises, at the gatherings of university trustees. The solutions to such problems are limited. But one tried and true approach remains clear: joining forces to fight back.
A Side Note on Law Firm Collective Action: The Bar Associations’ Statement
A joint statement by the New York City Bar Association and many other bar associations calls for rejecting “any efforts to use the tremendous power of the government against members of the legal profession for performing their duties.”
Note that the leadership of the New York City Bar Association includes many lawyers with leading law firms.
Collective Action? Yes, But Bring in the Business Roundtable and the United States Chamber of Commerce Along with the Top 200 Law Firms
Like many ideas, collective action is a wonderful idea, provided it works. I don’t think it will work unless and until the American business elite comes to its senses and realizes that Trump is, in truth, a tyrannical madman. You are not going to jollify him. You are not going to mollify him with minor bribes, like paying a few million dollars in bogus “settlements” of bogus lawsuits he has brought. He is, instead, a mortal danger to your businesses. And he is a mortal danger to you. Yes, you can bribe him on Monday. But he won’t stay bought. On Wednesday, you’ll have to do it all over again.
You have got to reach the point where you wake up and smell the coffee. Let the DOGE cuts wreak havoc on Trump voters. Let the tariffs wreak havoc on the economy. And then take collective action.
So, we’ve got a law firm with 200 partners, 1,000 associates, and annual revenue of $2.6 billion. We’ve got a president eager to violate every law on the books, to extort the law firm without mercy, and to bend it to his will. (Why? You may well ask. The answer is because the president is scared shitless that the courts are going to try to resist his tyrannical impulses—and he’s trying to frighten all the lawyers because he’s not sure he’ll succeed in frightening all the judges.)
You’ve got a law firm facing an existential threat to its existence. You’ve got a firm that tries to organize collective action to defend itself, but without success. You’ve got a firm that considers injunctive relief in the courts, thinks it could get that injunctive relief, but also thinks it would go belly up anyway.
In these circumstances, the head of the firm goes to meet Mango Mussolini, they talk for three hours or so, and they reach a deal.
And what, pray tell, were the terms of that deal? Well, on one side, President Mussolini abandoned his threat to squash Paul Weiss like a bug.
And what did Paul Weiss do in return? Find a slightly indirect way to share, maybe half a billion dollars with Orange Jesus?
No, as its consideration, Paul Weiss gave bupkis.
In the chairman’s telling,
First, we reiterated our commitment to viewpoint diversity, including in recruiting and in the intake of new matters. Second, while retaining our longstanding commitment to diversity in all of its forms, we agreed that we would follow the law with respect to our employment practices. And third, we agreed to commit $10 million per year over the next four years in pro bono time in three areas in which we are already doing significant work: assisting our Nation’s veterans, countering anti-Semitism, and promoting the fairness of the justice system.
Such a deal.
Such a deal.
What is Wrong with this Picture?
From one perspective, Paul Weiss made out like bandits. But what’s the problem? What is wrong this this picture?
I assume that what Trump really wanted—and what he certainly got—were a lot of headlines along the lines of “Great Big Bad Law Firm Bends Knee to Trump and Kisses His Fat Ass.”
And certainly, for a long, long time to come, Paul Weiss will be known as the first big law firm to knuckle under.
Remember that a key aspect of competition for a firm like Paul Weiss is competition to recruit able you associates—so that you can sell their time at retail for $1,000 or more per hour.
If there are any brilliant law grads yearning for careers as Trump’s towel boys, I am sure they will relish the golden opportunity to come work for Paul Weiss.
As to the brilliant law grads who still have some self-respect, not so much, or so I would think.
My daughter Pollyanna called this morning to cheer me up. She made some good points. Here are five of them.
First, collective action by Paul Weiss and other large corporate law firms is not necessary to save the rule of law, nor is it sufficient to save the rule of law in the United States.
Nor is it sufficient. Survival of the rule of law requires, first of all, resolute action by the federal judiciary generally and by at least five Supreme Court justices in particular, and then, secondly, widespread support on the public’s part for resistance to tyranny. That alone will suffice.
Second, to the extent that specialized legal learning about the constitutional case law is needed to defend the rule of law, the big law firms largely do not have that expertise. They know a lot about securities law, environmental law, tax law, antitrust law, and intellectual property law.
Constitutional law, not so much.
Third, while it’s regrettable that Paul Weiss temporized, that’s not at all surprising. That’s what generally happens when someone is faced with a new and unexpected situation, with strong incentives pulling in wildly different directions.
But, fourth, the situation remains fluid.
Paul Weiss and its peers are in the business of hiring junior lawyers with sterling credentials—Harvard Law Review and the like—paying them very large salaries, and parceling out their time, hour by hour, at $1,000 or more, for services rendered to gigantic corporations.
Apparently, a good portion of corporate America is still sleep walking, looking to the Trump administration for those sweet, sweet tax cuts and deregulatory policies, and still imagining that his talk about tariffs and invading Canada, etc., is all bullshit.
Paul Weiss as we know it cannot exist without a lot of corporate clients paying it $2.6 billion a year.
On the other hand, Paul Weiss as we know it cannot exist without a continuing supply of very able young lawyers. A lot of them are very upset indeed. And, I would bet good money, a fair number of the partners are not happy, either.
Fifth and finally, if you look closely at what Paul Weiss actually “agreed” to do, it looks like Trump did not get very much apart from headlines along the lines of “Big Law Firm Capitulates.”
The firm “agreed” to supply $40 million in legal services—not money, but the “value” of the legal services—to pro bono clients as mutually agreed between Trump and the firm. $40 million is 1/65 of the firm’s annual earnings. And the firm is “paying,” not in cash, but in services.
Back of the envelope calculation: If the contributed pro bono services are “worth” on average, say, $1300 per hour, then the $40 million figure works out to 30,769 hours per year. If Paul Weiss’s 1200 lawyers bill on average 2,000 hours/year to their paying clients—and that may be low—then, collectively, they’re billing 2.4 million hours. The promised Trump pro bono 30,769 hours represent 1/78 of the estimated total current billable hours.
Chicken feed.
The firm also “agreed” not to turn away business based on the prospective client’s political affiliation. Fine. They probably shouldn’t do that anyway.
And the firm seems to have discussed with Trump having some sort of a look-see about its employment practices.
In short, the firm’s “obligations” seem trivial, ambiguous, and, to a significant degree, illusory. I’ll bet Mr. Karp of Paul Weiss walked out of his meeting last week with Trump thinking that he had just yanked the wool over Orange Mussolini’s eyes, good and proper.
This week, though, things probably look more complicated.
President Trump took a broad swing at the [legal] industry Friday night after three earlier orders punishing Paul Weiss and two other firms. In a presidential memorandum, he broadly accused law firms of abusing the legal system to challenge his policies, stymie immigration enforcement and pursue partisan causes. He instructed Attorney General Pam Bondi to seek sanctions in court against lawyers and firms who engage in “frivolous, unreasonable and vexatious litigation.”
Trump also directed Bondi to launch a broad review of conduct by lawyers in litigation against the government over the last eight years to determine whether additional firms should face the same type of punishments he has issued already, most notably the termination of government contracts held by firm clients.
Administration officials already have built a list of more than a dozen law firms they might target with executive orders, and Trump has expressed eagerness in signing more of them, according to people familiar with the planning.
Trump’s latest pronouncement landed particularly hard in an industry that was still processing Paul Weiss’s decision to cut a deal with the White House rather than challenge the administration in court. Trump on Thursday rescinded his order against the firm after it agreed to provide $40 million in pro bono legal services to support the administration’s initiatives, such as assisting veterans and fighting antisemitism.
Several law-firm chairs and senior partners said they were working to calm clients and employees, with younger associates increasingly calling for lawyers to take a stand against Trump. Some firm leaders said their clients—and their fellow partners—were split on whether they would rather their firms take a deal if targeted or fight it out in court. A number of firms were trying to draw distinctions to clients between their work and the activities of the firms that Trump has punished already. Corporate lawyers with a connection to the Trump administration have been tapped to open communication lines with the White House, and several firms were seeking to engage lobbyists, people familiar with the discussions said.
Paul Weiss chairman Brad Karp spoke with other firms’ leaders in recent days and told them he found the deal with the White House distasteful but said he had little choice but to take it, according to people familiar with those conversations.
“Clients had told us that they were not going to be able to stay with us, even though they wanted to,” Karp told firm lawyers and employees in an internal email Sunday viewed by the Journal. “It was very likely that our firm would not be able to survive a protracted dispute with the Administration.”
One firm, Perkins Coie, which was hit with a Trump executive order on March 6, continued to lead the fight against the administration over the weekend.
“Now more than ever law firms and lawyers across the political spectrum have to stand up for our timeless values,” David Perez, a Perkins Coie partner said on LinkedIn. The Paul Weiss agreement, he said, emboldened Trump “to ratchet up his attack on one of the strongest checks on his power: lawyers and the rule of law.”
Perkins Coie sued the administration on March 11 and won a restraining order against the administration, with a judge saying the executive order was likely unconstitutional. But while the firm is winning in court, it is struggling to manage the fallout behind the scenes.
Perkins is losing clients who fear Trump’s wrath, and a number of top companies that work with the firm have called other firms about representation, people familiar with the matter said. One of the people said some competing lawyers have made sympathetic calls to Perkins to say they aren’t trying to steal the firm’s clients and would step aside if those clients wanted to return to Perkins after the situation calmed down.
An effort across a number of firms to file a court brief in support of Perkins continues to flounder because not enough firms are willing to sign it, for fear of antagonizing the administration, people familiar with those negotiations said.
San Francisco-based Keker, Van Nest & Peters urged law firm leaders “to resist the administration’s erosion of the rule of law.”
“Our liberties depend on lawyers’ willingness to represent unpopular people and causes, including in matters adverse to the federal government,” the firm said. “An attack on lawyers who perform this work is inexcusable and despicable.”
Trump’s campaign in part has been focused on paying back opponents. Perkins, for example, worked with Hillary Clinton’s presidential campaign and an opposition-research firm that compiled a discredited dossier against Trump. Covington & Burling, another firm hit with an executive order, provided legal counsel to former special counsel Jack Smith. And Trump cited Paul Weiss’s previous ties to Mark Pomerantz, who also worked on the Manhattan district attorney’s investigation into Trump and his business.
But the president’s Friday memorandum also signaled Trump’s broader frustrations with lawyers challenging his initiatives in court—and winning. His administration is currently locked in a showdown with a Washington federal judge over Trump’s invocation of wartime powers to deport alleged Venezuelan gang members. A number of the president’s other initiatives have been put on hold by the courts, including the termination of thousands of government employees and limits on birthright citizenship and transgender rights.
Public-interest legal organizations and smaller firms have been leading many of those cases.
Sid Davidoff, a New York lawyer who was famously on President Richard Nixon’s “enemies list,” said industry leaders were caving to pressure.
“You have some top notch firms, significant legal minds, and they’re just being whipped,” Davidoff said. “I guess they are trying to protect their bottom line, but it’s really upsetting.”
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.
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?
Facing MAGA 