The Trump Administration Just Admitted Its War On Law Firms Was A Bluff. The Cowards Who Folded Already Paid The Price.

from the profiles-in-cowardice dept

We’ve said it over and over again on this site: when you stand up to the bully, the bully backs down. When you capitulate, you get nothing but a permanent stain and an invitation for more abuse.

And here we are again.

The Wall Street Journal is reporting that the Trump administration plans to abandon its defense of the executive orders sanctioning law firms that dared to represent clients the president didn’t like. The Justice Department is expected to drop its appeals of four separate trial-court rulings that struck down Trump’s actions against Perkins Coie, Jenner & Block, WilmerHale, and Susman Godfrey.

The fact that these attacks were legal losers is no surprise. We called this out as unconstitutional nonsense when Trump first started targeting law firms. The courts agreed, with judge after judge striking down the orders as unconstitutional retaliation. But it was at least a little surprising that the Trump admin just gave up on this fight, rather than continuing its losing streak. As the WSJ reports:

An ideological mix of judges ruled against the administration, saying the executive orders undermined bedrock principles of the U.S. legal system. In one decision, Judge Richard Leon, an appointee of President George W. Bush, said blocking the sanctions was necessary to preserve an “independent bar willing to tackle unpopular cases, however daunting.”

In another decision, Judge Beryl Howell, an appointee of President Barack Obama, said even more cuttingly, “This action draws from a playbook as old as Shakespeare, who penned the phrase: ‘The first thing we do, let’s kill all the lawyers.’”

So the firms that fought back—the ones that read the Constitution and believed it still meant something—won a total, complete victory. The administration folded. The executive orders are dead.

But, the story of the firms that fought and won is actually the less interesting part of this saga. The far more consequential story is about the firms that didn’t fight. The ones that looked at a blatantly unconstitutional executive order and decided the smart play was to grovel.

Led by Paul Weiss, nine large law firms decided to cut deals with the administration rather than challenge what was an obviously hollow legal threat. They promised nearly $1 billion in pro bono work for causes favored by the administration. They effectively paid a cowardice tax—tribute to a bully who, it turns out, had no actual leverage over them.

And what did they get for it?

While the administration lost its battle in court, the executive orders nonetheless put a lasting chill on the industry. Fear of the orders prompted nine large firms to make deals with the president, promising nearly $1 billion in pro bono work for causes favored by the administration. Many of the same firms that took a leading role opposing the Trump administration in court during his first term have shied away from taking on pro bono cases adverse to the government.

That “lasting chill” the WSJ describes is real, but it was from the law firms themselves, not the executive orders. By capitulating, those firms validated the threat and made it seem scarier than it ever actually was. Every firm that cut a deal told the world: “This threat is credible enough that we—supposedly the top lawyers in the country—would rather surrender than fight.” And by doing so, they made it harder for every other firm to stand up. They didn’t protect themselves. They weakened the entire profession.

As we said at the time, lawyers had one chance to pick which side of history they wanted to be on. Many chose poorly. And the consequences were immediate and tangible: even Trump-friendly companies refused to work with the firms that caved, because who wants to be represented by lawyers who demonstrated they’d fold under the flimsiest of pressure?

UCLA law professor Scott Cummings put it well in the WSJ piece:

“This affected the interest of big law firms doing what they normally do, to stand up for people without representation…. In that sense, Trump achieved something important that will linger.”

But I’d frame this differently than Cummings does. Trump didn’t “achieve” this. Paul Weiss and the other capitulators achieved it for him. Trump threw a blatantly unconstitutional punch, and instead of letting the courts block it (which they did, easily, for every firm that fought), these firms dove out of the way and handed him their lunch money. The “achievement” here belongs to institutional cowardice, not executive cunning. And that distinction matters, because it means the chilling effect on legal representation wasn’t an inevitable consequence of Trump’s power, but a choice.

This isn’t the first time we’ve seen this dynamic play out. Just a couple of months ago, the Trump administration quietly dropped its appeal in its effort to withhold education funding from colleges they deemed too “woke.” The administration had threatened to pull billions in funding from states and schools that refused to sign documents attesting they’d eliminated DEI programs. A federal judge struck it down on multiple grounds, including that it threatened educators’ free speech. The administration appealed… and then abandoned the appeal entirely.

The case was brought by the American Federation of Teachers, the American Sociological Association and a school district in Eugene, Ore. Randi Weingarten, president of the A.F.T., said the case was the most important of the 22 lawsuits that her union had filed, along with partner groups, against Mr. Trump in his second term, because of the precedent it would establish for limiting executive power.

“You cannot, by executive fiat, rewrite 60 years of educational opportunity,” Ms. Weingarten said in an interview, referring to the civil rights laws that protect students from racial discrimination in schools.

The American Federation of Teachers fought and won. But universities like Columbia and Cornell had already surrendered. They cut their own deals, gutted their own programs, and reorganized their institutions to appease an administration whose legal threats were, once again, built on sand. And just like with Paul Weiss, the capitulation didn’t buy them safety. Columbia folded and then the administration still threatened its accreditation.

Because that’s how bullies work. Giving in doesn’t satisfy them. It emboldens them.

The pattern across both stories is pretty clear. The Trump administration launches a legally dubious attack. Some institutions panic and fold. Others stand firm, go to court, and win. Then the administration quietly abandons the fight. And the institutions that folded are left sitting there, having paid a price—in money, in reputation, in institutional integrity—for a threat that was never going to survive judicial review.

The nearly $1 billion in “pro bono” commitments those law firms made is particularly galling now. That’s a billion dollars pledged to administration-favored causes, extracted through what amounted to a protection racket built on an unconstitutional executive order that the government itself just admitted it can’t defend. It doesn’t even matter if those law firms ever actually pony up that pro bono representation. The damage is already done. They told the world — and every future authoritarian who might be taking notes — that major American law firms can be rolled if you just threaten them loudly enough.

Meanwhile, the firms that fought are walking away with their reputations intact, their principles uncompromised, and a stack of lower-court rulings affirming what was obvious from the start: what the administration tried to do was unconstitutional. And critically, the administration quit before those cases could work their way up to a Supreme Court that has proven… let’s say flexible… in its willingness to bless executive overreach. We’ll never know if SCOTUS would have found some creative way to let these executive orders stand. But we do know this: the administration’s own lawyers apparently concluded that the answer wasn’t going to be favorable, or at minimum that the fight wasn’t worth having.

That’s the actual lesson here—but it’s narrower than “the system works.” The administration’s legal theory was so weak it couldn’t survive even the first round of judicial scrutiny. A DOJ that has proven willing to argue almost anything looked at these cases and decided it couldn’t defend them. That’s how hollow this threat was. The firms that fought won not because the whole machine is functioning properly—plenty of evidence suggests it isn’t—but because this particular attack was so constitutionally indefensible that contesting it in court was basically a formality. Which makes the capitulation all the more inexplicable: they surrendered to a threat that collapsed the moment anyone bothered to fight it.

For Paul Weiss and the others, that’s going to be a fun thing to explain to future clients.

Filed Under: doj, donald trump, law firms, trump administration

Companies: paul weiss, perkins coie