Trump’s War on Law Firms is a War on You

Why he won’t stop at destroying the legal profession.

Credit: The White House

American democracy rests on certain foundational principles: the rule of law, checks and balances, and the idea that we live subject to laws, not men. In America, we believe that everyone is entitled to an equal chance—not an equal outcome—under fair and transparent rules. Over the past decade, Donald Trump has led a mounting assault on all the foundational norms, values, and institutions that make the America we know and love possible.

From the first days of his second term, through personnel, pardons, and policies, Trump has made clear that his America does not resemble the one we love. His America rewards allies with impunity and windfalls, and punishes his critics with investigations and prosecutions. He has subverted our system of fair play under law and replaced it with a rigged and punitive racket.

The way he has squarely targeted the justice system in the first few months of his second term should make any patriotic American’s blood run cold. He has purged the Department of Justice (and other agencies) of talented career lawyers, especially those who did their duty by investigating January 6 and other crimes committed by Trump or his allies. He has stacked the Department, including the Federal Bureau of Investigation and U.S. Attorneys' Offices, with stooges and flunkies loyal to him rather than the law. He celebrated his inauguration by pardoning violent criminals among his supporters and has since moved quickly to weaponize the government against his critics.

And he’s come for the lawyers. Earlier this year, he issued a raft of unprecedented and unconstitutional executive orders targeting dozens of law firms, specifically on the basis that they have been associated with litigation and causes—or even lawyers—he dislikes. Trump unfailingly chooses unsympathetic targets when he wants to violate norms, grab extraconstitutional power, or weaken the laws that constrain him. In elite coastal law firms led by multimillionaires, he may have found his least sympathetic victims.

Americans need not sympathize with wealthy lawyers’ economic challenges, and they would not be wrong to criticize the long-term left-leaning sympathies of Big Law and the organized Bar. But we should all take note of this assault, not out of love for lawyers, but out of concern about what it portends for our system of ordered liberty. We should admire the attorneys and law firms who have shown the courage to fight this assault—and reserve limitless contempt for those who capitulated, unwilling to risk falling from great wealth to merely considerable wealth in defense of the law.

These illegitimate and corrupt assaults on law firms are, in one sense, simply another abuse of power by this president, and should be opposed on those grounds alone. Government power should never be used to serve the whims and grievances of the president, to silence dissent, or to concentrate all societal power in the government. But that is precisely what this administration is doing—systematically targeting law firms, the judiciary, the media, universities, and private citizens alike.

Nonetheless, there’s something especially pernicious about the attacks on law firms. Our system of government relies on checks and balances and the separation of powers to protect the rights and liberties of all Americans. The federal judiciary, in particular, has (though imperfectly) performed its role of checking presidential overreach. As a result, the president and his allies have waged a relentless campaign to delegitimize and intimidate the courts. For good reason, many observers worry whether this administration will comply with court orders that go against it. The courts have no police force to compel it to do so.

There’s another significant way in which our system limits the power of judges. In the U.S., a court cannot consider overreach by the executive unless a citizen files a complaint. Generally, that involves retaining a lawyer. If lawyers and law firms begin to fear taking a case for fear of retaliation by the White House, some cases may never make it through the courthouse door. Seen this way, the attack on law firms is part of a two-front strategy to neuter an indispensable branch of government. Trump and his allies are choking off lawsuits before they reach the judiciary on the front end while questioning the legitimacy of successful lawsuits on the back end. If this strategy proves successful, all of our rights and liberties will stand exposed, and vulnerable as never before, to government incursion by this and future administrations.

Lawyers often congratulate ourselves on being more than mere capitalists; as professionals, we have a special role to play in a nation under law. When the White House began issuing these executive orders, the legal community faced its first big test under Trump 2.0, and many of the targeted firms failed miserably. Nine reached some kind of settlement with the administration, promising nearly $1 billion in pro bono legal services. A few fought back. Countless others stood silent and, one can reasonably surmise, went about their business with an added wariness of displeasing those in power.

The first of the capitulating firms was Paul, Weiss. A storied New York mega-firm, it’s long been a draw for the nation’s brightest, most ambitious lawyers. Despite its prestige and power it quickly folded and reached a deal to meet administration demands and provide $40 million in free legal services to Trump.

The firm’s statement of principles was written in 1963 by one of its most esteemed partners, Judge Simon H. Rifkind. It includes a commitment “to govern ourselves as members of a free democratic society with responsibilities both to our profession and our country.” The deal was a rank betrayal of these principles.

Amid all this, the granddaughters of Judge Rifkind, Amy and Nina Rifkind—both of them practicing lawyers—released a public letter addressing the situation. They lamented the firm’s actions and the fact that, when tested at such a critical moment, it failed so spectacularly to live up to their grandfather’s aspirations for the firm:

“We are confident that our grandfather would have recognized in this delicate moment, when the country hovers between a new authoritarianism and its longstanding freedoms, that what is good for the nation and rule of law is good for Paul, Weiss, not the other way around … We are confident that neither our grandfather, nor his colleagues with whom he built Paul, Weiss, would have negotiated a truce for themselves when the rest of the legal profession remains under threat for doing its jobs as lawyers.”

Paul, Weiss was the first, not the last, to buckle. Gold-plated names like Skadden, Milbank, Kirkland & Ellis, Latham & Watkins, A&O Shearman, Simpson Thatcher & Bartlett, and Cadwalader followed. These firms are among the most storied, most wealthy, and most powerful in America. These partnerships of our best and brightest attorneys, all bent the knee before the powerful rather than defend their profession.

The reason they caved is because they’re scared. One lesson of these last several months is that those who abuse government power need not use brute force, masked thugs, and disappearances to cow, intimidate, and suppress. Mere economic threats, or suggestions of endless investigations, can be enough. The law firms are not alone. Universities, media companies, and others have made the same rough calculus. They chose to take what they perceive as the easy route rather than the correct one.

From a short-term business perspective, this makes perfect sense. But in the longer-term, it’s a catastrophic miscalculation. When we, lawyers and others, refuse to defend our liberties in the hope that capitulation will appease those who would abuse power, we invite further abuses. History has taught that the demon of autocracy, once invited in, tends to take root, gather strength, and resist exorcism.

It would be nice to count on lawyers to resist assaults on the Constitution. After all, we lawyers do take an oath upon admission to the Bar, typically affirming we will “obey and defend the Constitution of the United States.” But, for those who hold their oath cheap, prospects for the long-term viability of our business should add further motivation. An America in which rights depend not on the law but on the whim of the president is a badly diminished country. It is a country in which fewer deals are made, less capital is invested, and fewer businesses form. It’s an America in which businesses protect themselves not with contracts or sound lawsuits, but with donations to campaigns and presidential libraries. It’s an America with much less need for lawyers—and a darker future for all of us.

This moment calls for a robust, unapologetic, sustained defense of the rule of law in America. The legal profession will forever bear the black mark and scandal of this moment in which many of our leading law firms—those best positioned to resist government pressure—chose instead to cut a deal or keep their heads down and hope for the best. The rest of us must not follow their ignominious lead.

We must defend our inheritance of liberty under law against all who threaten it. We must defend lawyers against attacks from the government, even the lawyers who won’t defend us. We do it not for them. We do it for ourselves and the country we love. Each one of us who sets that example makes it that much easier for others to join. A corrupt president can buy off a law firm or nine, but he cannot win against a united people who truly value their liberties and the laws that protect them.

Gregg Nunziata is the executive director of the Society for the Rule of Law.