Trump Is Going After the Independence of the Entire Legal Profession, Not Just Big Law
A new presidential memo is meant to instill fear in any firm that dares to represent his political adversaries
The Trump administration’s assault on lawyers who represent its perceived adversaries has so far targeted by decree three major firms and caused one of them, the venerable Paul, Weiss, to capitulate. But a new presidential memorandum outlines the White House’s expansion to a more general scheme of penalties against law firms that take legal positions that it regards as baseless, vexatious, or unreasonable across the range of courtroom disputes in which the federal government is a party. Unless stopped—whether by the courts or some other form of pushback coming from civil society—these policies will endanger the health of, and may even constitute an existential threat to, an independent legal profession or bar willing to vigorously stand up to the federal government.
Trump Expands His Attack on an Independent Bar
The new memo devotes considerable space to complaining about lawyers who battle the feds in court and characterizes them as often taking unfounded positions. “Recent examples of grossly unethical misconduct are far too common,” the memo reads. Of course, such behavior is nothing novel—which is why long-standing rules that provide for the identification and deterrence of lawyerly misconduct of this sort, above all through Rule 11 of the Federal Rules of Civil Procedure, already exist. As someone who has made something of a specialty of writing about lawyering gone wrong over many years, I’ve long thought that a good case exists for a stronger sanctions regime. And if you casually browsed the first part of the memo, you might mistake it for just such a proposal to give judges broader power to sanction lawyers under Rule 11, no matter their cause or client.
But that’s not what it does—not at all.
The whole idea of the memo is to take away from the courts the role of assessing whether lawyers who battle Trump’s actions have misbehaved and, if they have, what penalty should be levied. Instead, it asserts an arbitrary and peremptory power in the executive to decide for itself what counts as misconduct by opposing lawyers, and then to penalize that alleged misconduct through any or all of the sanctions that make up the first batch of spite orders, as you might call them, against law firms that Trump has issued.
These sanctions are no small matter. They include firm-wide withdrawal of security clearances and penalties involving federal contractors that do business with the firm. All of this is calculated to induce large business clients to jump ship from a sanctioned firm. Other sanctions from the first three revenge directives, such as forbidding lawyers from entering federal buildings or speaking to federal employees, are not explicitly mentioned in the memo but are implicitly included in catch-all language.
The Trump administration asserts a right to levy these sanctions for improper litigation whether or not its own Department of Justice saw fit to ask a court to levy sanctions at the time—and, indeed, asserts the right to levy them even if they did already ask and a judge refused. It asserts a right to sanction the opposing lawyers even in cases where those lawyers won outright on the matter that was being contested.
The Anti-Accountability Administration
Under this memo, it’s not going to matter what the judges think or what they rule. That’s the whole idea. This guidance is in keeping with this administration’s insistence on stamping out any measure of accountability that it doesn’t already directly control. But of course its attempts to bring measures like sanctions—a crucial tool judges rely on to enforce decent behavior and rule-following in the courtroom—under its control entirely strips them of the very reason for their existence. Only a fool or aspiring tyrant would propose leaving the determination of guilt and penalty to the discretion of the opposing party when that party is the state.
The memo also says that the DOJ will report supposed frivolous filings to the lawyers’ bar associations, as well as endeavor to hold senior partners responsible for the misconduct of junior partners. Some of this is not inconsistent with current practice. But the first carries the important practical menace of making life hot for small legal practices comprising one or a few lawyers that may escape the deterrent effects of lost security clearances and contractor work that loom large for Big Law firms.
Retributive Sanctions
There are other differences to note between stepped-up demands for conventional Rule 11 sanctions and what the memo does. In an ordinary courtroom setting, if one side escalates by filing hardball sanctions motions, the other side can often respond in kind. For example, onlookers have more than once wondered whether the positions pressed by DOJ lawyers during the past two months, as when they flirted with defying orders by Judge James Boasberg against deportation flights, might not open them to sanctions motions. Usually, mutual forbearance reigns.
But the new memo is set up to enable retrospective revenge long after a case is won or lost. Forget finality and repose! No statute of limitations here. The memo proposes to start by looking back eight years for supposed misconduct, long enough to settle every grudge from the first Trump administration. Judges, of course, might take a dim view if you asked to reopen a case that settled or otherwise concluded years ago to complain of opposing lawyer conduct that was well known and documented at the time.
Election Interference
It is especially disturbing that the memo names election law as a target of particular interest. The first three spite orders targeted lawyers for representing those involved either in campaigns—a topic distinct from elections as such—or in the prosecutions of Trump. But election law is peculiarly relevant to the question of whether, after Election Day, a governing party will accept the verdict of voters who have turned against it, or will instead seek to bend laws to remain in office.
After the 2020 election, Trump and his allies launched dozens of legal actions and disputes aimed at overturning the results in various states across the country. Many of these actions were opposed by able law firms hired by Trump’s opponents. Now imagine that Trump had thrown confusion into the ranks of opposing lawyers by hitting their firms with crippling sanctions as they organized to oppose his schemes—and that most of the ablest firms had been scared away from representing his opponents in the first place.
This is precisely why only the full and fearless airing of the arguments opposed to the incumbent regime can assure public liberty.
Defending the Rule of Law
As of this writing, one well-known law firm—Keker, Van Nest & Peters—has stepped up to defend the profession’s independence, though it is not itself directly targeted. Its statement, from John Keker, Robert Van Nest, Elliot Peters, Laurie Carr Mims, and the partnership, reads as follows:
Trump’s new Executive Order underscores how far removed this President, Attorney General and Administration are from our nation’s Constitution and bedrock values. Our liberties depend on lawyers’ willingness to represent unpopular people and causes, including in matters adverse to the Federal Government. An attack on lawyers who perform this work is inexcusable and despicable. Our profession owes every client zealous legal representation without fear of retribution, regardless of their political affiliation or ability to pay. We encourage law firm leaders to sign on to an amicus effort in support of Perkins Coie’s challenge to the Administration’s executive order targeting the firm, and to resist the Administration’s erosion of the rule of law.
That leaves dozens upon dozens of other Big Law firms around the country that have not yet joined to raise their voices in protest or been heard in any way.
What explains their hesitation to oppose an administration trying to strongarm its way to eroding important legal principles? Fear is the simple and biggest reason. The firms fear that raising their head by protesting publicly, as by signing a joint letter calling out the administration’s actions, will be viewed as opposition to Trump and provoke his ire in their direction.
Even strength in numbers might not be enough: 80% of Big Law firms could join in a statement, only to find that within a year or two the politically sensitive big clients—and almost every major company is a government contractor—have fled en masse to one of the law firms that stayed quiet about what Trump is doing. That’s the sort of calculation that can override both high principle and the weakness of Trump’s actual case before judges.
Still, the hour grows late.
An earlier version of this article first appeared in Cato at Liberty.
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Mercedes. BMW. Paul, Weiss.
Any firm that calculates the income to be gained from a fascist assault on its competition can join the list. Failure to fight fascism is complicity.
Of course he is going after lawyers. He is going after everything that makes for a free society. He is an authoritarian, and everyone is cowering and letting him do it. Protests by left-wing activists are no resistance at all. The resistance has to come from mainstream America.