from the principles-are-more-useful-in-the-long-run dept
America’s largest law firms are facing an existential choice that will define not just their legacies, but potentially the future of constitutional democracy: fight against clearly unconstitutional executive orders designed to destroy the ability of anyone to fight back, or surrender to authoritarianism. While that might sound hyperbolic, the evidence shows that it’s absolutely true.
In the last few weeks, Donald Trump has issued these orders against a variety of big law firms: Covington & Burling, Perkins Coie, Paul Weiss, Jenner & Block, and WilmerHale. As we’ve been discussing, these executive orders are effectively existential to these firms. While the specifics of each order differ a bit, they are designed to be death sentences for these firms, usually stripping them of security clearances that are often necessary in dealing with the government, making it nearly impossible to have any clients who have government contracts (which can be almost every big company), and, at the most extreme, barring lawyers from these firms from federal buildings (which can include courthouses).
There are reports from these law firms that they are losing clients and that other lawyers are seeking to poach both their top lawyers and their clients.
Here’s what we know so far about fighting back: it works. When Perkins Coie challenged these orders a few weeks ago, they got their TRO. When Jenner & Block and WilmerHale followed suit, they got theirs too. Three for three. The pattern is clear: when law firms actually defend the Constitution, courts still protect it.
Which makes the capitulation of some firms even more puzzling. They’re not just choosing the path of least resistance — they’re choosing a path that demonstrably leads nowhere good.
Basically: if you challenge these orders, you’re likely to win relief, and fast.
This is why it’s that much more puzzling that some law firms are caving. We’ve already talked about the shameful stain left on Paul Weiss for surrendering and agreeing to provide $40 million in pro bono services to Trump-aligned efforts.
Even worse, last week another big law firm, Skadden Arps, agreed to capitulate to Trump even before he issued an exec order against them, this time agreeing to an even more shameful $100 million in pro-MAGA pro bono work. Some lawyers at Skadden (one of the largest law firms in the world, and somewhat famous for being full of extremely aggressive lawyers, even among the biglaw world full of aggressive assholes) are already resigning and announcing it publicly.
There is only one acceptable response from attorneys to the Trump administration’s demands: The rule of law matters. The rule of law matters. As an attorney, if my employer cannot stand up for the rule of law, then I cannot ethically continue to work for them.
Even Donald Trump seems shocked at how quickly these giant law firms (and colleges, which is another story) are caving to him so quickly and easily:
“You see what we’re doing with the colleges, and they’re all bending and saying, ‘Sir, thank you very much. We appreciate it,’” Trump said at a White House event marking Women’s History Month. “Nobody can believe it, including law firms that have been so horrible, law firms that, nobody would believe this, just saying, ‘Where do I sign? Where do I sign?’ … And there’s more coming, but we really are in the ‘Golden age of America.’”
The apologists for capitulation want you to believe this is just standard risk management:
It’s not unusual for lawyers to “look at all of your options,” Cari Brunelle, a legal industry consultant, told CNN. “Sometimes you choose to litigate, and sometimes you choose to settle. It’s what you do for your clients every day.”
This argument fails spectacularly on both moral and practical grounds. This isn’t a routine settlement discussion over a contract dispute. This is about preserving the fundamental ability of our legal system to check unconstitutional power and criminal behavior. The “rational business decision” framing completely misses the point.
But even on pure business terms, capitulation is suicide. Think it through: If clients are fleeing firms targeted by Trump, how does surrendering help? A firm that caves ends up with three strikes against it: (1) it’s proven useless in standing up to government overreach, (2) it’s demonstrated it has no principles, and (3) the administration still views it as an enemy. The “settlement” buys nothing except shame.
At least if they fight, you know that they’ll fight, and somewhere they have some kind of principles.
And while there are reports that other law firms are cowering and hiding, at least some are willing to speak up. Over the weekend, the three named partners of Keker, Van Nest, and Peters wrote an op-ed for the NY Times entitled: “For God’s Sake, Fellow Lawyers, Stand Up to Trump.”
Our firm stands with Perkins Coie and all firms and lawyers who fight against this president’s lawless executive actions. That’s why we’ve called on other firms to join us in submitting a friend of the court brief in support of Perkins Coie.
If lawyers and law firms won’t stand up for the rule of law, who will?
[….]
We understand that while many firms have agreed to sign on to the Perkins Coie friend of the court brief, some large firms have hesitated or only conditionally agreed if enough of their peers do so first. No doubt they fear losing clients and incurring the president’s ire.
We sympathize. We take seriously our obligations to our clients, our associates, our staff and their families. But at this crucial moment, clients need to find their courage, too. And partners at big firms — who often earn millions a year — must be willing to take financial risks when the fate of our nation, the future of our profession and the rule of law itself is at stake.
You can support a lawyer’s right to represent unpopular clients and causes against powerful forces — essentially the oath we all took when becoming members of the bar. Or you can sit back, check your bank balance and watch your freedoms, along with the legal system and the tripartite system of government we should not take for granted, swirl down the drain.
This is not hyperbole. The common denominator among the president’s recent spate of actions is that he appears to believe he has absolute authority to govern by fiat. What we’ve seen in the last few months tells us that we are moving ever closer to becoming an autocracy — and the current Congress is a lap dog that essentially offers no resistance.
Keker is a well-known and well-respected firm, though it’s smaller than most of the other law firms being targeted to date. But it knows what’s up.
Our decision to speak out on this issue was an easy one. We believe that one of the noblest things a lawyer can do is to stand up against the government on behalf of a client whom the government seeks to destroy. When Mr. Trump was indicted and sued, he hired lawyers to defend him. They did a good job, keeping him out of jail and preserving his fortune. For his administration to attack lawyers and firms whose members have opposed or annoyed him is a threat to our democracy.
Lawyers and big firms: For God’s sake, stand up for the legal profession, and for the Constitution. Defend the oath you took when you became officers of the court. If we stand together and fight, we will win.
The choice facing America’s law firms today isn’t just about business survival — it’s about whether they’ll be remembered as defenders of constitutional democracy or enablers of its destruction. The cowards at Skadden Arps and Paul Weiss may think they’re making sophisticated business decisions, but history has seen this playbook before. When authoritarian regimes consolidate power, they always start by neutralizing those who might stand in their way. And history remembers who helped them do it.
As the Keker partners put it: “This is not hyperbole.” When future generations study how American democracy either survived or crumbled in 2025, they’ll look at what the legal profession did in this moment. The firms that fought will be remembered as heroes. The ones that caved? Well, being a law firm that surrendered to Hitler didn’t look any better in the history books just because they called it a “rational business decision.”
Filed Under: constitutional order, democracy, donald trump, executive orders, law firms
Companies: jenner & block, keker van nest, paul weiss, perkins coie, skadden arps, wilmerhale
