Nation's Elite Lawyers Choose Money Over The Constitution

It’s worse than a crime, it’s a mistake.

(Photo by Michael M. Santiago/Getty Images)

President Trump has deployed aggressive, illegal tactics to divide powerful rivals and perceived enemies, so that they can not align in solidarity and resist his authoritarian seizure of power.

His three most obvious targets are individual blue states, individual universities, and individual law firms. One by one, they have rewarded his abuses of power by caving. But the most craven actors are in the realm of corporate law, where even firms that Trump has not singled out are abandoning people in need of representation in order to escape his ire.

A Tuesday Washington Post story details the snowballing consequences of one egregious capitulation. When Donald Trump issued a lawless order instructing the government to crack down on the white-shoe law firm Paul Weiss, the firm’s chairman Brad Karp cut a corrupt deal with the president, including a promise to devote $40 million worth of pro bono hours “to support the administration’s initiatives.”

The decision had an immediate emboldening effect on Trump and chilling effect on the rest of the Big Law world. Trump signed a new executive order Tuesday targeting the firm Jenner & Block. He ordered his attorney general, Pam Bondi, to seek sanctions against any lawyers who file lawsuits he and his administration deem “frivolous.” Most other firms have responded to Trump’s implicit threat to strip them of their security clearances and drive away clients with business before the government by going to ground—abandoning clients that want to sue the administration, or that the administration might otherwise find objectionable.

Suddenly, litigants who need to defend themselves against Trump’s threats or file suit to stop his legally dubious orders, “are struggling to find legal representation as a result of his challenges,” according to the Post. “Biden-era officials said they’re having trouble finding lawyers willing to defend them. The volunteers and small nonprofits forming the ground troops of the legal resistance to Trump administration actions say that the well-resourced law firms that once would have backed them are now steering clear.”

That’s bad enough. But in context, its even worse. White shoe pro bono work is in exceptionally high demand because, through his lawlessness, Trump has already taxed the world of public interest, legal aid, and boutique firms to its limit. Before his first orders, which targeted corporate firms Covington & Burling, and Perkins Coie, lawyers for these independent firms and civil-society organizations were already cracking under the workload.

“Two months into this administration, the American legal system is already under severe stress,” said Deepak Gupta, a Supreme Court advocate whose firm Gupta Wessler has participated in litigation against the Trump administration. “The nation's largest, richest, and most powerful corporate law firms are starting to be ruled by abject fear. They're already categorically declining to take on new pro bono clients in cases that might draw the administration's ire. Worse still, in some cases I know of, they're backing out of existing commitments to challenge unlawful government actions on behalf of vulnerable groups that desperately need their help. Nonprofits and smaller law firms like ours simply cannot make up for all of that unmet need.”

This trend extends further, to certain paying clients, who suddenly find themselves abandoned by their lawyers, too. And if your blood is only simmering, this should bring it to a boil: For as long as they have existed, these white-shoe firms and their star lawyers, have willingly defended unsavory interests from allegations of serious wrongdoing. Invariably, they come in for criticism for representing bad actors, and just as invariably they fall back on the same trite excuse—that everyone is entitled to vigorous representation, even the very rich. They say this knowing that all of their elite-law peers will ride to their defense.

Now we know how seriously they took that supposed principle.

TAKE THE MONEY AND STUN

The Paul Weiss capitulation, and its knock-on effects, call to mind the famous quote attributed to Benjamin Franklin, “We must all hang together, or assuredly we shall all hang separately.” It’s on everyone’s lips. And yet they have shown deep reluctance to form an alliance.

Money is the biggest confounding factor here.

The firms understand that they’re in the midst of a collective-action problem—one that, on the face of it, should not be impossible to solve. The partners at these firms are tightly networked and very rich—and there aren’t that many of them. But they all know that linking arms in opposition to Trump’s war on the rule of law could cost them millions a head in future wealth if just a handful of the biggest firms decide, like Paul Weiss, to cut a devil’s bargain with Trump.

What if their clients jump ship to Trump-connected firms? What if Trump freezes out their lobbyists or blocks their clients’ mergers?

The fact that Paul Weiss threw away something priceless—its reputation within the legal elite—for cold hard cash has not provided competing firms sufficient motivation. The fact that their collective inaction threatens the system that allows them to practice freely and lucratively hasn’t either.

But there’s another confounding factor—one I’ve written about in the context of partisan politics, but that applies to other nodes of resistance. In crisis, all entities under the Trump administration’s assault are turning to lawyers and strategists and other fixers for help putting together what are (or should be) broad, multiparty campaigns. These are people whose impulse is to settle, and thus spare their individual clients controversy, rather than court it by fighting.

We are living through the moment of truth for lawyers right now; what happens over the next days will determine whether vigorous advocacy before life-tenured judges remains a working tool of opposition.

But… [t]he notion that Democratic leaders would outsource so much judgment to professional-services providers has never made sense to me. Washington is full of professional-services providers (some good, some bad) but the nature of these fields is essentially to keep clients out of trouble. A huge share of the guidance they give amounts to “don’t stick your neck out.” Does that sound like good advice for someone seeking votes in an attention economy? Does that sound compatible with political leadership that rallies the masses?

Democrats in Washington have different considerations than law firms, universities, and state governments, but the same principle still applies. When Trump comes for any of them, the impulse to seek out and heed the advice of their lawyers and management consultants is understandable, like habit. But it is a category mistake to expect advisers like these to provide wise counsel now.

What does a typical elite professional-services provider know about resisting a coup? About fighting fascism? About protecting the legal system itself, as opposed to some entity within it? Some of them may understand intuitively better than others, but it’s no insult to them to say they don’t really know what they’re doing. They are not trained to do this.

It’s also not their role. Their role is to advance their clients’ narrow interests. To limit their exposure to risk, help them improve their images, or keep them out of trouble. More often than not, it’s to advise them to hang separately.

MAINE SQUEEZE

Columbia University has set off a similar collective-action problem in elite higher education by capitulating to Trump in a similar way, and for similar reasons, instead of suing him.

The state of Maine likewise agreed under duress to ban trans athletes from college sports, after Trump threatened to withhold federal funds from the state’s university system.

In both cases Trump reneged, or moved the goal posts. Columbia’s federal funds are still frozen. Trump said he’ll continue to throttle Maine in this unconstitutionally coercive way until its Democratic governor, Janet Mills, issues him a personal apology.

In both cases, money talked. But I also suspect they arrived at their respective decisions to cave to Trump in consultation with advisers, who argued that acceding to Trump’s demands would reduce harm.

When you take a wider view, the folly of this thinking becomes obvious. Trump can't be trusted. He reneges on agreements all the time. It is impossible to concede anything that will keep him meaningfully at bay. U.S. trade partners know this well; they have started forming new trading relationships with other countries, because they’ve recognized, correctly, that conceding to Trump’s threats buys them only fleeting relief from his tariff threats.

Here’s where I would normally contribute some ideas about how these entities might band together and maximize their leverage—but I’m no better trained to do this than their lawyers, and I know much less about their options.

I do know that Columbia administrators don’t have to travel far to find experts who can teach them how foreign institutions have weathered similar threats. I know that the Ivy League as a consortium is more powerful and influential than any one of its universities. I know they all have enormous endowments. I know that Columbia can afford to fight, but that the legacy it trashed was priceless.

I don’t know if (for instance) blue states can align to float Maine as Mills takes legal action against Trump’s illegal threats. I do know that Susan Collins, Maine’s Republican senator, is the chair of the powerful appropriations committee, and up for re-election this cycle. I also know that in 2012, seven Supreme Court Justices, including John Roberts, Clarence Thomas, and Samuel Alito, held that the Affordable Care Act, in its original form, violated the 10th Amendment by threatening to strip all federal matching funds from states that rejected the law’s Medicaid expansion. If the federal government can’t make its contributions to Medicaid contingent on states accepting a big program expansion, I gather it can’t wipe out all kinds of federal grants if governors don’t fluff the president (or implement his preferred policies).

Columbia and Maine are, of course, very unlike law firms. They are not for-profit entities. They have unique histories and obligations, Columbia to current students, Maine to its citizens. By contrast, there's no pressing reason in the world that the law firm Paul Weiss needs to exist. Or that it needs to maintain and grow its profits in perpetuity. The people who work there are highly qualified professionals; its partners can retire or start boutique firms of their own—whatever.

Nothing fundamental to American society and the rule of law breaks if Trump drives a single law firm out of business, so long as most of the other firms form a pact against his threats.

But if Paul Weiss sets off a flight to safety that ultimately wrecks the entire legal-defense system, then they'll have contributed not only to the discrediting of their firm, and the erosion of American constitutional democracy, but the rule-of-law system that allows them to practice in the first place. They’ll invert their own false ethic. “Everyone is entitled to vigorous representation, even the very rich” will become, “No one is entitled to vigorous representation, particularly the very poor.”

These people should be thinking less now about their businesses, their bottom lines, their revenue streams and more about their roles adjacent to civil society; their obligations as protectors of rights within the constitutional system.

This kind of thing isn’t in anyone’s lane. Administrators administer, lawyers litigate, teachers teach. They typically do so under a presumption of regularity, that their government won’t begin hunting them for sport. They now face dilemmas they don’t deserve and never planned for. But it would be a historic error not to resolve them. And they should be on notice: If they don’t resolve them soon, they’ll be complicit in the breaking of their own vocations. Future generations learning cautionary tales will know their names.