First They Come for the Law Firms, Then They Come for the Law

 

In classic fascist fashion, the Trump-Musk junta has launched a war on independent voices. They are actively engaged in suppressing free thought, and they’re putting serious pressure on the institutions that value it.

The pressure so far has fallen on the mainstream media, who have largely cowered in the face of it, and on universities, who are still trying to figure out how to deal with it.

But the most pressure — and the most immediate threat to the very concept of independent thinking — is being put on the legal sector. Lawyers, law students, law professors, and judges everywhere are feeling it. Large law firms especially are alarmed, ever since Trump started issuing executive orders that threaten to sink them, whether they comply or not. For some reason, I can’t stop writing about this.

In the past month, some of the biggest firms have capitulated, reaching agreements with the junta to contribute pro bono work to “conservative” causes. These agreements were always long on announcement value and short on specifics. It was never clear what the terms were, or whether they could ever be enforced.

But now some of the specifics are coming in, and they’re not pretty. It turns out the agreements were negotiated, not by the federal government at all, but by Boris Epshteyn, Trump’s personal mob lawyer. As Epshteyn, a notorious slimeball, has no official position at all, any deal reached with the capitulating firms would make Trump, not the government, the actual counterparty to the deal. Just what sort of constitutional black hole this might create is hard to contemplate.

Regardless, these firms — the ones who gave in — have a lot more to think about now, since five bigtime law professors have weighed in on the legality and ethics of these extortionate agreements. They make it clear that the firms did not think this through.

Because in caving to Trump, they opened themselves up to any number of conflict-of-interest claims against the firm. Trump is claiming leverage over these firms, and holds the power of life and death over their client’s federal interests. Any government work the firm does for those clients is immediately compromised, or, as lawyers say, “conflicted out.”

These law firms, in other words, have jeopardized their own client relationships, putting those clients in untenable conflict situations in dealings with the government. The ethical contamination alone could prompt these clients to fire their firms, and if enough high-billing clients do the same, it can be fatal to any law firm, no matter how large.

And then there’s the criminal exposure, something these firms never anticipated. According to the law professors, the billion dollars in pro bono work they’ve agreed to — and that Trump has bragged about — amounts to a bribe. The firms are exchanging money, in the form of pro bono hours, in return for relief from the onerous executive orders that threaten their businesses. This is a possible violation of federal anti-bribery statutes.

Meanwhile, on the side of right and good, the four firms that were hit with ruinous executive orders are not caving. They’re fighting back in court, and even conservative judges are responding with timely restraining orders. They are being supported by friend-of-the-court (amicus) briefs from at least a hundred other firms, as well as from bar associations, law schools, former judges, and the justice departments of nearly two dozen states.

The four firms — Perkins Coie, Wilmer Hale, Sussman Godfrey, Jenner & Block — are all facing existential crises. Even if they win in court, which seems likely, the fallout from the executive orders could yet put them out of business. They’re already seeing clients leave for fear of retaliation from the administration, and it could get worse, depending on the level of pressure Trump exerts.

So we can see the lines being drawn. As Big Law firms are being forced, one way or another, to choose sides in this war, two different mindsets are forming around two fundamentally different types of lawyers.

First, there’s the mindset of the deal-makers. These are the corporate attorneys, the guys who represent giant companies working for — or negotiating with — the government. They deal in contracts, product approvals, merger approvals, favorable legislation, and other arcane pursuits. Their instincts are mostly transactional, and they tend to go along to get along. They thrive on government connections to get things done.

The top twenty mega-firms that have capitulated to Trump are mostly firms with billion-dollar corporate practices of this kind. They need to keep those government connections open, and if that means pay-to-play, they’ll go ahead and pay, as if this were just any business decision.

They don’t want their clients frozen out of deals because they didn’t toe the junta’s line. But then toeing the line can be perilous in itself. Once the mob boss has his hooks in you — once you’ve shown him weakness — he can move that line at any time. And once he owns you, he’ll squeeze you dry. It’s shocking that major law firms don’t understand this.

But that’s just one mindset. The other, almost diametrically opposed to that of the deal-makers, belongs to the litigators. These are the lawyers who live in a world of us-versus-them. Litigators regularly go to battle in an almost infinite variety of corporate legal disputes, many of which can only be settled in courtrooms. Their instincts are adversarial, sue-or-be-sued, see-you-in-court. The firms contesting Trump’s obscene executive orders tend to have large litigation practices, and they’re deeply offended at the blatant lawlessness they’re seeing every day.

So here we have two very different sorts of lawyers — litigators who want to fight, deal-makers who want to deal — often working for the same firm. I’m guessing this is creating tension — the reasons are obvious. We might even find that for any given firm, the dominance of one mindset or the other correlates with the firm’s likelihood of capitulating, or not.

In this new reality — which isn’t even a hundred days old — the law firm business may start to realign itself according to the two mindsets. The fighters will join the firms that are fighting. The deal-makers will join firms making deals, even if those deals are with Trump.

In the meantime, the rule of law is holding on, if barely, though it’s being stress-tested in real time. Judges have stepped up, and it’s a testament to their courage that the four executive orders that targeted law firms are likely to be overturned by summary judgment. Even if those decisions get appealed to the Supreme Court, it’s hard to see even those odious justices agreeing to the demolition of their own legal system.

But the junta is attacking intellectual freedom — nothing less — and they’re doing it from the top down. They’re going directly after those people best equipped to fight them. They must feel that if they can drive a wedge between major law firms and the rule of law, they can ultimately control those firms, which would go a long way toward controlling the legal process itself.

By going after the law firms, they’re going after the law. History makes it quite clear that nothing good comes from this.

As lawyers find themselves on the front lines of a fight none of them want, we’ll be seeing varying degrees of feistiness and guts, two qualities that will be sorely needed.

I, for one, am watching them with interest. I’ll get back to you on that.