To Dodge A Fight With Trump, Law Firms Cut Deals. Now The Deals Are Creating A Fight With Trump.

from the so-how-did-the-caving-work-out-for-you? dept

A few weeks ago, David Lat went on the Serious Trouble podcast and mentioned that things actually hadn’t turned out that poorly for the craven big law firms that had caved to Donald Trump’s ridiculous attacks on any law firm he didn’t like. The law firms that fought back keep winning in court, as it’s obviously ridiculous and unconstitutional to punish law firms because you don’t like the clients they’ve defended. And, to some extent, Trump’s legal strategy has succeeded in creating a chilling effect. Lat had earlier reported how the Big Law firms are mostly missing from the many, many legal challenges against Trump’s nonsense policies.

Of course, many of the “settlements” involved promises of pro bono work in support of MAGA/Trump causes, though it’s unclear if any of that has really turned up. There had been some talk last year that Trump’s personal lawyer, Boris Epshteyn, had tried to get those firms to help Trump negotiate his bullshit trade deals, though it’s unclear if that went any where.

Epshteyn’s involvement is interesting, because it has also been reported that he was the one who actively negotiated the craven “settlement” deals by the law firms that caved, despite not being a federal government employee.

That’s become a real problem for the firms. The American Bar Association had sued the White House last year to try to stop these attacks on law firms. Given the reporting on Epshteyn’s involvement (again, not as a government employee), the ABA has been demanding copies of communications involving Epshteyn.

This appears to have made the DOJ nervous (gee… wonder why?) and it has taken the somewhat strange step of issuing subpoenas to a bunch of the law firms, including most of the ones that “settled” with the administration, while also demanding that some of their top people sit for depositions. And all these big law firms who decided to ditch any principled stand and to agree to a deal with Trump are now put in the awkward position of deciding if they now need to fight the administration they already caved to… or reveal information they’d probably prefer not to reveal.

Mr. Epshteyn serves as Mr. Trump’s personal lawyer but negotiated the deals with the firms. Mr. Bannon has publicly praised the deals, saying that he hoped Mr. Trump’s executive orders against the law firms would destroy them.

In response to the demands the Trump administration hand over documents, the Justice Department has asked a federal judge to quash the requests. So far, the judge has not ruled. But in the meantime, the Justice Department subpoenaed the nine law firms that cut deals with Mr. Trump — and four that have fought the executive orders in court — for the same information the association was seeking from the administration.

The government’s subpoenas marked an escalation of the battle surrounding the lawsuit, and aim to put the law firms’ leaders under the same kind of pressure that the bar association’s subpoena put on Mr. Epshteyn, according to people familiar with the matter.

The subpoenas ask for all communications the firms had with Mr. Epshteyn and “any communications concerning the implementation, enforcement or monitoring of” agreements between the firms and the White House, according to the subpoena reviewed by Times.

Apparently, the strategic idea is that by issuing subpoenas to these law firms (again, most of whom already caved and basically admitted that they’re toadies of the administration), perhaps they’ll step in to the fight and help the DOJ try to block the sharing of Epshteyn’s communications. And that creates a fairly uncomfortable choice for these supposedly big, powerful law firms.

The demands have caught the firms flat-footed, unsure of how to respond. Faced with that uncertainty, they have hired high-powered Washington lawyers to represent them as they gear up to face the Justice Department….

Oh gosh, these big powerful lawyers who used to fight the government now have the government putting them in such an impossible position… that they have to hire other lawyers to figure out what to do? Please, someone fetch me the smallest violin.

Meanwhile, the firms that caved and promised to support Trump’s MAGA agenda are worried that if they fight these bogus subpoenas, they’ll be right back to square one, facing a new bullshit executive order that they were too chickenshit to stand up and fight against earlier:

But the Justice Department’s demands have placed the firms that made deals with Mr. Trump in a particularly difficult position, leaving them uncertain how to respond, according to the two people. Some firms fear that if they oppose the administration they will be hit with an executive order, one of the people said.

Maybe, next time, don’t cave. Don’t abandon all principles. Don’t meekly give in to a bully who was never going to leave well enough alone.

While some of the subpoenas went to the law firms that have fought back against Trump, it seems much easier for them to come out and fight the subpoenas, if they choose to do so. Or, hell, they could just cough up Epshteyn’s approaches to get them out there anyway.

When dealing with an authoritarian bully, never obey in advance, never give in when you can stand up for your rights. Those big law firms — Paul Weiss, Kirkland & Ellis, Latham & Watkins, Skadden Arps, Willkie Farr, Milbank, A&O Shearman, and Simpson Thacher — caved and now face even further embarrassment. There’s one other firm that’s in a weirder position. Cadwalader (NY’s oldest law firm) was another big law firm that caved, but… just recently merged with Hogan Lovells, which has not caved. And Hogan Lovells is claiming that Cadwalader’s promises to the Trump admin don’t apply to the merged firm. Good luck with that!

Either way, it’s hard to feel much sympathy for the position the Trump admin is now putting these firms in. They had a chance to show backbone when it actually mattered, and they folded. Immediately. Now they get to hire more lawyers to figure out how to avoid ratting out the guy they folded for. Lat may have been right that things “hadn’t turned out that poorly” — but ask again in a few months, once these firms are done choosing between betraying Trump or betraying themselves.

Filed Under: boris epshteyn, caving, donald trump, executive orders, law firms

Companies: a&o shearman, hogan lovells, kirkland & ellis, latham and watkins, milbank, paul weiss, simpson thatcher, skadden arps, wilkie farr