The Trump administration can’t even retreat from its unconstitutional attacks on law firms with any sense of dignity.
After months of unsuccessfully arguing for Donald Trump’s farcical executive orders attempting to punish prominent law firms that had worked with his perceived enemies, the Justice Department had apparently seen the light and told a federal appeals court it would not be pursuing cases against Perkins Coie, WilmerHale, Jenner & Block and Susman Godfrey, which had all fought back and won.
But that moment of clarity lasted just about a day, as Justice then reversed course and moved to withdraw its withdrawal and pursue the appeals. This saga is almost a perfect encapsulation of the administration, which somehow manages to be both malevolent and incompetent, highly disorganized while still doing a lot of damage.
Who’s to say why the DOJ did the about-face, though if we had to venture a guess, we’d imagine that the actual career attorneys tasked with litigating this garbage decided there was no way they could make it work and then someone like Attorney General Pam Bondi or White House aide Stephen Miller ordered them to keep trying anyway.
Whatever the reason, the first group was certainly right. No court is going to find that a presidential administration has the right to retaliate against law firms or lawyers based on their clients’ political affiliation or ideology. Trump may have been successful at installing an array of ideologically-aligned judges, often rated not qualified by the American Bar Association, including a few true believers like Texas’ Matthew Kacsmaryk or Florida’s Aileen Cannon, who are unlikely to ever rule in a significant way against him, no matter what he does.
Still, the vast majority of judges, even conservatives, even those appointed by Republican presidents including Trump, still believe in some semblance of the rule of law and constitutional directives like the First Amendment, and they are not taking kindly to the administration’s glib indifference towards these fundamental principles.
Over and over again, these jurists have thwarted the administration’s unlawful actions from tariffs to summary detentions of immigrants to attempts to withhold already-appropriated federal funds to blue cities and states. It is really only the captured Supreme Court that has given him immense leeway, and some of that seems to be running out.
We commend these law firms for opting to fight even in the face of the frightening might of the federal government, and these judges for forcefully rejecting the administration’s demands.
The DOJ’s effort to continue defending these orders is bound for an inevitable string of losses, which only makes it more embarrassing for the law firms that decided not to fight, and instead preemptively capitulated to the demands of a man who believes he is king. Chief among them is Paul Weiss, a giant firm that set a precedent as the first to negotiate a deal with Trump, leading to a staff exodus, among other consequences.
Even when this case is over, even when Trump is no longer president and his authoritarian efforts have been curbed by independent courts and a Congress that is slowly but surely growing a spine, everyone will remember that these firms laid down for Trump. That won’t inspire much confidence among prospective clients, to be sure. As it becomes clearer that it’s possible to stand up to Trump and win, and that there are consequences for capitulating, we hope more institutions will take heed.
