Federal courts have handed a series of resounding victories to the law firms fighting back against President Trump’s targeted executive orders, a sharp rebuke of his retribution campaign against them.
Three judges, appointed by presidents of both political parties, forcefully struck down orders this month aimed at limiting government contracts and access for Big Law firms Perkins Coie, WilmerHale and Jenner & Block.
The early wins underscore the legal system’s ability to withstand the Trump administration’s pressure test, and have led some in the legal community to take shots at other elite firms that struck deals with Trump to avoid punishments.
“This is a moment for courage, not capitulation,” said Harold Hongju Koh, a Yale Law School professor who authored papers calling Trump’s orders retaliatory and the law firm deals unenforceable.
“The firms that showed courage are being vindicated, and the ones who have capitulated have another chance to show courage,” he continued. “So, what are they going to do?”
The judges ruling in favor of the law firms all deemed the administration’s actions as illegal.
Still, that might not make firms that chose to strike deals with Trump regret their actions.
Those firms likely anticipated they could win in court, but decided it was in their better business interests to settle with Trump, said Rachel Cohen, a lawyer who made waves after she offered a conditional resignation from Skadden contingent on whether leadership came up with “a satisfactory response to the current moment.”
Skadden ended up reaching a deal with the Trump administration, and Cohen no longer works there.
Cohen argued Trump has effectively won in getting a number of law firms to offer it concessions even though the administration had a weak case in court.
“The very fact that we’re saying, ‘What does it mean that the Trump administration has lost all of these legal battles’ shows that they kind of won, right?” Cohen told The Hill.
The three firms that won in court all have ties to people who are political opponents of Trump or who are otherwise seen as the president as enemies.
Perkins Coie had long drawn Trump’s ire for advising Hillary Clinton during her 2016 presidential campaign and working with an opposition research firm tied to the discredited Steele dossier.
WilmerHale had employed special counsel Robert Mueller before and after his stint investigating Russian interference in the 2016 presidential election, while Jenner & Block previously employed Andrew Weissmann, a prominent Trump critic and legal pundit who worked on Mueller’s probe.
A fourth firm fighting back, Susman Godfrey, is awaiting a ruling on a Trump executive order targeting it for punishment. The firm helped Dominion Voting Systems secure a multimillion-dollar settlement against Fox News after the 2020 election.
The Trump administration has argued that it’s within the president’s discretion to decide who to trust with the nation’s secrets, a reference to its decision to revoke the security clearances of the firms’ employees. The orders were designed to assuage Trump’s concerns about the law firms, the government has said.
But judges haven’t bought it.
U.S. District Judge Richard Leon, an appointee of former President George W. Bush, said Tuesday in his ruling for WilmerHale that the president’s orders against several of the nation’s top law firms constituted a direct challenge to the independent judiciary and bar that are the “cornerstone” of America’s justice system.
To let the orders stand would be “unfaithful to the judgment and vision of the Founding Fathers,” the judge wrote in a 73-page opinion spattered with exclamation points.
Before that, U.S. District Judge John Bates, another Bush appointee, slammed Trump’s order against Jenner & Block as an effort to “chill legal representation the administration doesn’t like,” while U.S. District Judge Beryl Howell, appointed by former President Obama, said Trump’s order against Perkins Coie “draws from a playbook as old as Shakespeare, who penned the phrase: ‘The first thing we do, let’s kill all the lawyers.’”
A legal world earthquake
Trump’s deal with Paul, Weiss was an earthquake in the legal world, and signaled that a number of powerful firms would be willing to do deals with Trump out of economic prudence.
Trump revoked the executive order targeting Paul, Weiss after it agreed to provide $40 million in free legal services to support administration initiatives and other perks.
“As soon as Paul, Weiss made their deal, it was very clear to me that the industry wasn’t going to act collectively and that they were going to splinter,” Cohen said.
Soon after, Skadden struck its own deal with the president, agreeing to provide at least $100 million in pro bono legal services “during the Trump administration and beyond.” Trump had not signed an order aimed at Skadden, though the administration signaled that additional law firms could come under fire.
At least seven other firms entered agreements with Trump to provide tens of millions of dollars in pro bono work, despite no executive orders issued against them.
“There is a different motivation beyond ‘Would I be able to win in court?’ that is behind why these deals were entered into in the first place,” said Cohen.
But Koh, the law professor, argued that it’s not too late for the other firms to change course.
In his essay in the law and policy journal Just Security, he contended that the agreements are unenforceable contracts.
He offered a hypothetical: If you enter a contract to give someone a million dollars because they put a gun to your head, but then a court says it was illegal to put a gun to your head, would you still pay the million dollars?
“Right now, they are prisoners of handcuffs of their own making,” Koh said of the law firms. “It’s all in their mind — that’s what these cases tell you.
“Whatever was their explanation for why they caved the first time, those justifications are gone,” he continued. “They should start doing the right thing now; they have a second chance to do the right thing, and they should take it.”
