The diverging paths taken by three law firms targeted by the Trump administration show a major divide over how the legal community is responding to a White House ratcheting up the pressure.
The administration has stripped security clearances at a trio of firms, targeting one attorney at Covington & Burling and all attorneys with clearances at Perkins Coie and Paul, Weiss.
The orders for Perkins Coie and Paul, Weiss additionally barred their attorneys from entering federal buildings, which could include places like courthouses, as well as requiring federal contractors doing business with the firms to disclose the relationship.
The chair of Paul, Weiss said the move “could easily have destroyed our firm,” describing the Trump administration as bringing “the full weight of the government” down on it.
Actions have not been limited to those three firms.
Last week, the Equal Employment Opportunity Commission (EEOC) sent letters to 20 top law firms demanding information about their employment practices, a sign it plans to target their diversity, equity and inclusion (DEI) programs.
And over the weekend, President Trump signed another executive order critics say will have a chilling effect on those taking on litigation against the administration — encouraging the attorney general to refer attorneys for disciplinary action if it is determined they have filed “frivolous, unreasonable, and vexatious litigation”
Rachel Cohen, a former associate at Skadden who resigned over the firm’s failure to address the barrage of actions, described the moves as an “existential” matter for the profession.
“Law firms need to be united in condemning these actions and pointing out just how beyond the pale they are. And I think that they’re scared to do that for a variety of reasons. The first is that big law has a deep collective action problem,” said Cohen, who last week sent a firmwide email calling on Skadden to come up with “a satisfactory response to our current moment.”
“It does just all come around to, is this industry going to be silent when the president operates outside the balance of the law, or is it not?”
One attorney at a major law firm speaking on the condition of anonymity to discuss internal dynamics said that while the parallels to McCarthyism are obvious, firms are also facing “ruinous economic damage.”
“The president and those closest to him know that they have the ability to put more than a squeeze — a crush — on law firms, who have lawyers who speak out, advocate, organize, represent in a way which is unpleasant, undesirable for the administration,” the source said.
“So lawyers and law firms are wanting to keep their head down and represent as small a target as they possibly can be.”
Covington hasn’t taken many public actions since Trump moved to strip the security clearance of Peter Koski, who did pro bono work for former special counsel Jack Smith.
But Perkins Coie and Paul, Weiss have taken opposing paths, with the first suing and the second brokering a deal to do pro bono work for causes championed by the administration in exchange for Trump withdrawing the order.
Perkins Coie hired an outside firm with expertise in challenging the federal government and garnered an initial win in court. A judge cited the First Amendment in temporarily blocking the portion of the order limiting their attorneys’ access to federal buildings and requiring government contractors to disclose if they do business with the firm.
“The Order imposes these punishments as retaliation for the firm’s association with, and representation of, clients that the President perceives as his political opponents,” Perkins Coie, which worked for Hillary Clinton’s 2016 campaign, wrote in the suit.
“The retaliatory aim of the Order is intentionally obvious to the general public and the press because the very goal is to chill future lawyers from representing particular clients.”
U.S. District Judge Beryl Howell, an appointee of former President Obama, compared Trump to the Queen of Hearts in “Alice in Wonderland,” noting that the rash queen’s outbursts — “Off with their heads!” — are entertaining to read about but “cannot be the reality we are living” under our Constitution.
The Trump administration has since asked the judge to recuse herself.
Paul, Weiss said while it debated a legal challenge, doing so “would not solve the fundamental problem, which was that clients perceived our firm as being persona non grata with the Administration.”
“We could prevent the executive order from taking effect, but we couldn’t erase it. Clients had told us that they were not going to be able to stay with us, even though they wanted to. It was very likely that our firm would not be able to survive a protracted dispute with the Administration,” Chair Brad Karp wrote in an email to staff since reviewed by The Hill.
Karp said that the firm, not the Trump administration, would choose the $40 million in pro bono legal services it would provide, describing cases dealing with veterans and antisemitism as “areas in which we are already doing significant work.”
But Karp also described an environment in which he says the legal community failed to defend the firm.
“We were hopeful that the legal industry would rally to our side, even though it had not done so in response to executive orders targeting other firms. … Disappointingly, far from support, we learned that certain other firms were seeking to exploit our vulnerabilities by aggressively soliciting our clients and recruiting our attorneys,” he wrote.
Cohen said Paul, Weiss’s decision not to pursue a case, however, means it caved to the administration after its actions were already checked by the courts.
“Any other president — any other president — having received a temporary restraining order on this executive order would not have issued another one, targeting another law firm,” she said, using essentially the same language.
“It is to prove that they don’t care what the court says. And so then, for Paul, Weiss to roll over on that instead of saying we have a path clearly lined out in front of us … it is frankly, pretty unforgivable.”
The source with a major law firm said firms are clearly weighing the finances but called it a painful choice.
“The financial implications for a law firm can be nuclear, and therefore it’s a declaration of war against lawyers and law firms who have in some way offended somebody in the administration,” they said.
“The concerns of the law firms are legitimate. They’re not imagined from the perspective of a law firm and its management. They have mouths to feed. They have families of lawyers and paralegals and secretaries and messengers that have to be taken into account. And so it’s not as though it’s an easy call — it’s a painful call.”
Other actions have left the nation’s big law firms reeling over how to proceed.
The 20 law firms contacted by the EEOC are at their own decision point, even as some have suggested the firms could rebuff the commission.
There are also larger questions surrounding the latest order, which specifically called out pro bono work by firms on immigration cases as it threatened sanctions, disciplinary actions and “additional consequences” for attorneys on such case.
The attorney at a major firm called it another attempt to “pulverize” law firms.
“Every lawyer now who litigates on behalf of a client against the administration, against an agency, against some executive action, against some agency action, against some law enforcement action has to now run the risk of being quote, unquote, sanctioned by the Department of Justice. I mean, we’re talking Mussolini here,” they said.
To big law firms, it’s a direct attack on the pro bono legal services they provided after Trump’s 2016 victory, when they often challenged the new administration policies. It’s also sure to be a threat to nonprofits and advocacy groups large and small who routinely take Trump to court.
The threat of disciplinary action is no small matter either and comes as a number of figures with ties to Trump have moved to join the D.C. Bar.
Brad Bondi, the brother of the attorney general, is running to be president of the organization. Alicia Long, a career prosecutor who is now deputy to interim D.C. U.S. Attorney Ed Martin, a conservative firebrand himself, is running for treasurer.
Cohen noted her resignation letter came ahead of the latest executive order and said it was “unbelievably obvious” the flurry of action meant more executive orders were coming. She criticized firms for not taking the opportunity to “mobilize” over the weekend.
“It was unbelievably obvious to us, once we talked it through that that’s what was coming,” she said of conversations with some colleagues. “And it’s very challenging to get firms to act before the bad thing happens, or to get anyone to act before the bad thing happens.”
“I think that firms have an obligation — being made up of these lawyers at the top of their game who work unbelievable hours to make it into the upper echelons of a legal system in the United States — they have an obligation to protect that legal system itself.”
