Photo: Aaron Schwartz/Sipa USA via AP
When I was writing “The Moral Compass of the American Lawyer” a quarter century ago, I was concerned about the power and arrogance of lawyers, their focus on the bottom line, and their willingness to lie or at least mislead. After teaching legal ethics for over 20 years, I knew then that many lawyers — perhaps most — were not to be trusted beyond abiding by the clear “black letter” rules of the legal system.
But nothing back then prepared me for the Donald Trump-led attack on the rule of law that’s taken place at warp speed since he began his second term.
Today, with Trump launching a barrage of almost daily attacks on law firms and the courts, the issue is no longer about the moral compass of individual lawyers but whether the American system of law itself will retain its moral compass. When the dust settles, many of the legal system’s rules may be mere memories — thanks in part to powerful people who failed to stand up when it mattered.
The two most important principles protecting our democracy are freedom of speech and the rule of law. There are as many definitions of the rule of law as there are commentators. I’ll go with this one: Our laws, as determined by our legislatures and executives and interpreted by our courts, are sacrosanct. In other words, according to the old aphorism, “No one is above the law.” Not even a king, a principle dating from Magna Carta in 1215.
Our democracy is in the midst of an existential crisis. The question facing us today is whether the American rule of law, and our democratic form of government, will survive Trump 2.0. If the rule of law falls — if Trump and his minions are above the law — then freedom of speech is also in danger, with few left to protect it.
The Attacks
Trump set on his course of revenge and retribution against lawyers and law firms on the day he was inaugurated. His memo on ending the “weaponization of the federal government” claimed that the Biden administration “engage[d] in a systematic campaign against its perceived political opponents” that was “oriented more toward inflicting political pain than toward pursuing actual justice or legitimate governmental objectives.” Two weeks later, new Attorney General Pam Bondi created a “weaponization working group” focused on “restoring the credibility and integrity of the Department of Justice,” and singled out special prosecutor Jack Smith and New York prosecutors Alvin Bragg and Letitia James for “the pursuit of improper investigative tactics and unethical prosecutions,” specifically around the events of January 6, 2021.
Then Trump’s campaign to bring Big Law to heel began. In rapid succession, Trump filed five executive orders, each attacking a large national law firm for acting in ways he didn’t like: representing Smith pro bono, representing Hillary Clinton, having a law partner who investigated or prosecuted him. His order regarding the New York-based law firm Paul Weiss shows just how personalized — and narcissistic — his attacks could be: The firm hired “unethical attorney Mark Pomerantz,” whose offense was joining the Manhattan District Attorney’s Office “solely to manufacture a prosecution against me.” That order also warned that “nearly every other large, influential, or industry leading law firm” engaged in behavior Trump claimed is wrong.
These orders ended the firms’ security clearances, access to federal buildings, and government contracts, and most of them said the government would end the firms’ clients’ government contracts as well.
Trump also directed the attorney general and the Department of Homeland Security to act against all law firms engaged in his version of “unethical misconduct,” conduct that “must be efficiently and effectively held accountable.” His examples of unethical behavior were representing Clinton and litigating “baseless partisan attacks” against the government.
And on March 17, Andrea Lucas, the acting chair of the Equal Employment Opportunity Commission, sent demands to 20 separate “Big Law” firms expressing her concern that each firm’s “‘diversity, equity, and inclusion’ or other employment programs, policies, and practices may entail unlawful disparate treatment.” She insisted that each firm provide her with extensive reports about their own diversity requirements and their clients’ diversity requirements. This demand would force law firms to violate their oath to protect client confidentiality, a fundamental cornerstone of ethical lawyering. As an attorney, Lucas surely should know better.
Until the past six weeks, Big Law firms — among the richest and most powerful institutions in the country — considered themselves invulnerable.
Those firms that comprise Big Law — firms with from 500 to several thousand lawyers that earn several million dollars in yearly profit per partner — control much of both American legal affairs and American business. Almost without exception, they represent and negotiate deals between Fortune 500 companies, engage in close associations with government entities, lobby governments on behalf of their clients, and often have partners who move in and out of government service. Lloyd Cutler, for example, was a founding partner of WilmerHale, still known more formally as Wilmer, Cutler, Pickering, Hale & Dorr. Though a Democrat who served as chief White House counsel to two presidents, he also worked for Ronald Reagan and George W. Bush. His inside-the-Beltway access was extraordinary. Access is the name of their game — and the exact place Trump is attacking.
Almost every Big Law firm spends a lot of time defending big corporate clients in lawsuits filed on behalf of individuals — cases about employment conditions, unfair business practices, consumer issues, and much more. Consumer attorneys consider them to be bullies who push around those who don’t have their deep-pocket resources. Many see Big Law firms as profit-centered businesses first and client-centered lawyers a distant second. These firms are who President Jimmy Carter was talking about when he said, “Ninety percent of the lawyers serve 10 percent of the people; we are overlawyered and underrepresented.”
Many mega-firms have deep connections to the government, most do work on government contracts, and all have clients who work on government contracts. By directly attacking their and their clients’ ability to perform government work, Trump is turning their previous strength into a liability, driving a stake into the heart of their profit centers. And even if a law firm fights back, the damage to its client base and reputation for invincibility has been shaken.
The response to Trump’s aggression has been mixed. Three firms — Seattle’s Perkins Coie, D.C.’s WilmerHale, and Chicago’s Jenner & Block — sued the federal government and got temporary restraining orders that prevent — assuming they’re enforceable — the federal government from executing Trump’s demands. The work product produced in support of those TROs is extraordinary. Paul Clement’s brief on behalf of WilmerHale, filed within a day of Trump’s order, runs to 57 pages, with 15 counts alleging violations of the First, Fourth, and Fifth Amendments. And Jenner even created a special “JennerFirm” page to market its refusal to be intimidated: “Jenner stands firm because our clients deserve fearless advocates.”
But Paul Weiss, Skadden Arps, Willkie Farr, and Milbank — four New York-based firms with average yearly profits of between $3.9 and $6.8 million per partner — knuckled under his demands, the latter three doing so before a formal order was needed.
Trump’s “chaos theory” of action — creating enough noise that it will serve his ends — is clearly intimidating Big Law. Tellingly, an organized effort to attract law firms to sign on to an amicus brief in support of Perkins Coie produced only eight signatories among the country’s 100 largest law firms, none among the top 20. This does not augur well for how these firms will respond to Trump’s future bullying. Paul Weiss chair Brad Karp issued a statement defending his firm’s conduct, claiming that if the firm stood up to Trump it would not have survived its potential loss of clients and loss of revenue. But at a reported $6 million-plus profit per partner, one would think Paul Weiss could easily survive this challenge. Karp also claimed that rival firms were already circling like vultures ready to jump on clients who were thinking about leaving — hardly an endorsement of the behavior of fellow Big Law firms.
The stakes couldn’t be higher. At the same time Trump has sought and partly succeeded in bringing Big Law to heel, government lawyers, whose jobs are more directly to uphold the rule of law, have repeatedly come under attack.
Trump’s Acting Deputy Attorney General Emil Bove ordered Danielle Sassoon, the chief U.S. attorney in Manhattan, to dismiss corruption charges against New York City Mayor Eric Adams “without prejudice.” His reasons were political — to gain Adams’s support for Trump’s immigration policies, then hold a re-indictment over his head to ensure compliance — and did not relate to the strength of the case. Sassoon, a conservative appointed by Trump, refused the order and resigned.
On March 29, the Los Angeles Times reported that Assistant U.S. Attorney Adam Schleifer was fired in a brief email sent from the White House “on behalf of President Donald J. Trump.” Schleifer thought at first the email was a hoax. His sin? A former Democratic congressional candidate, he was working on a white-collar fraud case against a Trump supporter whose lawyers were actively lobbying for dismissal. White House press secretary Karoline Leavitt later said that the White House had participated in decisions to fire “more than 50 prosecutors” in recent weeks.
Then, on April 5, the New York Times reported that Deputy Attorney General Todd Blanche, Trump’s former criminal defense lawyer, had placed Deputy U.S. Attorney Erez Reuveni on administrative leave. The day before, Reuveni, who had just been promoted to acting deputy director of the Justice Department’s immigration litigation division, had conceded in federal court that the government had no grounds for deporting a Maryland man, Kilmar Abrego Garcia. Abrego Garcia was sent to the notoriously dangerous prison in El Salvador housing other deported persons.
Expect a Reckoning
Still, the gravest threat to American rule of law is playing out before our eyes: The Trump administration seems determined to ignore the courts.
Judges have issued many orders restraining the Trump administration’s conduct since he retook office in January, but almost none of those orders has been adhered to. The orders of Judge James Boasberg, chief judge of the federal district court in D.C., are a prime example of how the Trump White House is acting.
Boasberg issued a restraining order on March 15 that said that the government did not have the authority to remove planeloads of purported Venezuelan citizens and detain them in that same prison in El Salvador without due process. He ordered planes carrying those Venezuelans to return to the United States.
The Trump administration simply refused to comply, reaching its own self-serving conclusion that Boasberg “had no lawful basis” for his order, effectively deciding the law itself. Trump then went on the offensive, calling Boasberg a “Radical Left Lunatic of a Judge, a troublemaker and agitator,” and calling for his impeachment.
While courts have always been the ultimate “decider,” they have no enforcement mechanism — no marshals or police force with the power to require compliance.
Boasberg has since been assigned the Signal chat case, in which a consumer watchdog is asking him to order that the government preserve all text messages in the Signal chat that disclosed confidential information about an American attack on Houthis in Yemen. It’s not clear yet whether the government will ignore his orders in that case as well.
Trump has already said that he “does not violate any Law” if he acts to save the country, and Vice President JD Vance has said that courts “aren’t allowed” to control him. If true, or if Trump can get away with it, this will completely void the rule of law.
We all learned in grade school about the American system of “checks and balances.” While courts have always been the ultimate “decider,” they have no enforcement mechanism — no marshals or police force with the power to require compliance.
When Bush v. Gore was decided in 2000, it was by a 5-4 vote that seemed to have justices voting based on their political beliefs rather than legal principles. Still, Al Gore readily accepted the court’s decision and ended his claim to the presidency. But it’s not at all clear that a similar case today involving Trump would have the same result. Indeed, it seems likely that Trump would simply reject the court’s ruling. This puts our country in dangerous territory.
Chief Justice John Roberts recently criticized Trump for advocating the impeachment of judges. But it was Roberts’s opinion that held that Trump “is absolutely immune from criminal prosecution” for his conduct as president. That opinion paves the way for Trump to act with impunity and ignore the rule of law. Perhaps Roberts now regrets that immunity decision, but it may be too late.
Where this goes is anyone’s guess. But there’s a likelihood that at some point there will be a reckoning: a showdown between the rule of law on one side and Trump on the other. We need to accept that the courts may no longer be the arbiters of how that showdown plays out. Will the reckoning mean millions of people taking to the streets? Courts ordering the army to stage a coup to restore the Constitution? What happens at that reckoning may well determine whether our democracy survives or ends on the eve of its 250th birthday.
