Another institution capitulates to Trump

I never worked for a big law firm and never wanted to. No matter their politics, large law firms breed conformity and impose a hierarchy, and chasing 60 billable hours a week in a suit is crushing. But watching yet another big firm cave to Trump’s extortion scheme is demoralizing. That Doug Emhoff works for the latest firm to fold adds a special sucker punch. Trump’s racket is illegal, and every lawyer at every law firm bending the knee knows it’s illegal. But instead of standing united, doing the world a solid with the most consequential class action of all time, large law firms are caving serially to Trump’s demands. With the exception of a noble few led by Jenner & Block, big firms are picking themselves off one by one, putting money and their short-term careers over principle. They are modeling how, in Trump’s America, the law is whatever a malicious and intellectually stunted man says it is.Nice practice you got there.Shame if something happened to it.Trump’s executive orders attacking law firms that have opposed his illegal conduct are not law; Trump has no Constitutional authority to make law of any kind. An executive order is a written directive to do or refrain from doing something specific, but a president’s Article II EO authority is limited. A president can issue executive orders for the sole purpose of ensuring that existing laws are “faithfully executed.” He can’t issue them to challenge existing law, he can’t issue them to retaliate against firms that applied existing law, and he can’t issue them prophylactically to insulate himself from legal consequences in the future.Trump’s illegal EOs seek to blacklist law firms that serve his political opponents by suspending security clearances for those firms. They also instruct federal agencies not to meet or ‘engage with’ (ie, talk to or correspond with) lawyers and personnel of targeted firms. They have restricted physical access to federal buildings for all attorneys and staff employed by targeted law firms, proving that Trump sees federal property as an extension of his own tacky pay-for-play motel, which is itself a glaring violation of federal emoluments law. There is no legitimate legal theory under which Trump’s big law firm shakedown is Constitutional. A president has the right to select his own legal counsel, and has some limited degree of control over attorneys working under the executive branch. But in a delusional dictator’s wettest dream, that authority does not extend to controlling lawyers in private practice, private industry, or the judiciary. There is no legal scenario whatsoever where Trump’s EO authority trumps the First Amendment. Trump is targeting adversarial law firms to undermine rather than ‘faithfully execute’ federal law. As such, his EOs are unauthorized and therefore illegal on their face, even without regard to the First and Fourteenth Amendments. Like his ill-conceived tariffs, Trump is attacking law firms, throwing spaghetti on the wall to see what sticks. Instead of wiping it off with a class action any first year could write, firms like Milbank, Skadden Arps, and Paul Weiss, by agreeing to “pay up” tens of millions of dollars in legal work and adjust which clients they will represent, are eating it and asking for seconds.The law is stronger, older, and wiser than Trump. Law firms should start acting like it.It is beyond settled that government officials cannot try to “coerce private parties in order to punish or suppress views” the government disfavors. Just last year in NRA v. Vullo, where a New York government official criticized firms for doing business with gun rights organizations, the Supreme Court limited regulatory authority at the point where that authority intersects with free speech rights. Even the partisan federalists on the bench who appear poised to serve Trump are not likely to reverse their own First Amendment ruling just one year later.The First Amendment protects the “right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.” It has long prohibited government officials from retaliating against private actors for having engaged in this First Amendment-protected conduct. As cited in Jenner and Block’s well drafted complaint, filed last week, Trump’s retaliation against law firms that have opposed his politics is a “blatant and egregious form of content discrimination.”These cases are well known; there is zero chance the firms capitulating to Trump’s demands are unaware of them.Even the notoriously conservative Wall Street Journal recognizes that Trump is attacking law firms in an attempt to intimidate them, seeking to deter “elite law firms from representing his opponents or plaintiffs who challenge his policies.” Lawyers, of all people, must stop the deferenceTrying to put nationwide firms out of business because they represent, or have represented, Trump’s political opponents is a direct assault on freedom of political speech and association. It is also an authoritarian attack on the rule of law. Under the American system, every person in the nation, every organization, and even every criminal, including Trump, is entitled to legal representation. Trump’s pettiness and vindictiveness notwithstanding, he doesn’t get to decide who gets legal counsel and who does not.As Constitutional scholars and pundits have written repeatedly, Trump hates the rule of law because he wants to stay in office for life, and law is the only thing blocking him.His fawning reverence for Roy Cohn, Putin, Xi and Jong-un aside, however, we are not a banana republic where Trump gets to decide what the law is. Large firms need to remember this basic truth. To the next blue stocking partner Trump threatens to put out of business: Sue the bastard and honor your oath to the legal profession. It will work out better for you in the long run than throwing it under the bus.Sabrina Haake is a 25+ year federal trial attorney specializing in 1st and 14th A defense.Her columns are published in Alternet, Chicago Tribune, MSN, Out South Florida, Raw Story, Salon, Smart News and Windy City Times. Her Substack, The Haake Take, is free.

Read Full Article