The Pathetic, Cowardly Collapse of Big Law

Few Americans will have much sympathy for lawyers whose annual income reaches seven figures. But big law firms—especially those now under attack by the Trump administration—do crucial work, representing nonprofits and individual clients who face major legal consequences, both civil and criminal, for resisting Donald Trump’s assault on the rule of law. Without lawyers to represent them, those opposing Trump’s policies will, in effect, be legally disarmed, allowing his authoritarian impulses to run rampant.  

Trump began his attack on Big Law with a presidential memorandum directed against the law firm of Covington & Burling ordering that all federal contracts with the firm be reviewed, presumably for termination, and that any of the firm’s lawyers and employees who aided Special Counsel Jack Smith in his investigations be reviewed for “their roles and responsibilities, if any, in the weaponization of the judicial process,” on pain of their security clearances. Trump followed this with an executive order against the law firm of Perkins Coie (one of whose former partners, Marc Elias, represented Hillary Clinton during the 2016 campaign) that is far more sweeping. It orders a review to determine whether the security clearance of all lawyers and employees of the firm ought to be stripped, and a review—presumably for possible termination—of federal contracts not only with Perkins Coie itself but also with any client even merely represented by the firm. This had an immediate, and presumably intentional, effect: Perkins Coie began bleeding clients, threatening its continued viability. The EO also seeks to limit federal hiring of former Perkins personnel, their access to federal property, and their “engaging” with government personnel.

A second EO, this one against the law firm Paul Weiss, is quite similar. Paul Weiss’s sin? According to Trump’s EO, the firm needed to be punished because of its ties to Mark Pomerantz, a former partner who led a Manhattan district attorney’s investigation of Trump, and because of its pro bono work representing the Metropolitan African Methodist Episcopal Church in a lawsuit against two right-wing groups, the Proud Boys and the Oath Keepers.

More recently, in service of Trump’s in terrorem effort to cow law firms, his acting director of the Equal Employment Opportunity Commission sent a letter to 20 large law firms requesting information about their implementation of what the administration views as potentially “unlawful” DEI programs—in other words, for their efforts to hire more qualified minority lawyers. The EEOC has even set up a whistleblower email hotline for tips about allegedly illegal DEI practices at these firms. (Three firms more associated with representing Republicans—Kirkland & Ellis, Sullivan & Cromwell, and Jones Day—somehow escaped the EEOC’s notice, despite having robust DEI programs.)

Little, if any, of Trump’s actions here are lawful. (One court has already suggested as much, at least when it comes to the Perkins Coie EO. The court put that EO on hold, finding it “retaliatory in nature.”) Why are these firms being targeted, and what does Trump hope to get out of this campaign? In the Paul Weiss EO, the government alleges that “global law firms,” as Trump pejoratively calls them, have been involved in “the destruction of bedrock American principles.” They have played a large role in “undermining the judicial process” and engaging in “activities that make our communities less safe, increase burdens on local businesses, limit constitutional freedoms, and degrade the quality of American elections.”  

[Isaac Stanley-Becker: The United States of fear]

But what’s really going on here, quite obviously, is that these firms have attempted to fight Trump and have represented clients Trump and his voters disapprove of. That is hardly a sin; representing an unpopular client is essential to any fair system. But Trump and his allies don’t want a fair system; they want a system reminiscent of China’s or Russia’s, that scares lawyers away from these clients and disables their opponents from bringing legal challenges against their efforts to rule by executive fiat. Already, some firms are receding from the fight against Trump, declining to represent those who oppose him.

These orders and the threatened EEOC investigations are a transparent (dare one say blatant) effort to threaten the livelihood of lawyers at some of the nation's largest law firms and to deter them from taking legal action on the opposite side of the Trump administration. Imagine, if you will, what the world would be like if Clarence Darrow had been coerced by the government to not defend John Scopes?

Trump and his supporters defend these actions on the childhood-playground basis that the Democrats started it. They argue that Trump’s orders are merely an attempt to punish those liberals who have “weaponized” the law. They point to the disbarment of Rudy Giuliani as an example of how Big Law has used the law for allegedly political purposes and contend they are just responding in kind. But there is a world of difference between representing clients (like those suing the Proud Boys) who have a legitimate claim of injury and lying to the courts about fictitious evidence of a lost election. And there is an even greater difference between a unilateral executive determination that a law firm is “corrupt” and a contested judicial determination, resulting from a deliberative process in multiple courts, that a lawyer has violated the rules of professional conduct.

Taken as a whole, this attack on law firms is nothing short of an assault on the very idea of an independent legal profession. For years, the profession has had a set of overarching principles that are thought to guide its members’ conduct. Among them: Clients should be able to hire whom they wish without worrying about government retribution, and lawyers should be free to zealously represent their clients without the threat of government retaliation. To say otherwise is to betray the fundamental value of fairness that undergirds our justice system. Trump’s actions are an attempt, bluntly speaking, to tilt the scales of justice by using the raw power of government coercion.  

Given the pervasiveness and seriousness of this threat, one might expect robust opposition from the American Bar Association (the voluntary national association of American lawyers) and law firms that have not yet been targeted. Some have stepped up. The ABA has been outspoken in its opposition, issuing repeated condemnations and calling for congressional action; in response, the administration has begun prohibiting federal attorneys from contact with the ABA and is threatening its funding and accreditation authority. Some law firms have responded boldly as well: After the first Trump EO was issued, the prominent Washington, D.C., practice Zuckerman Spaeder was not deterred from representing the U.S. Institute of Peace in its litigation against DOGE. Even more notably, Williams & Connolly has agreed to represent Perkins Coie in a lawsuit to fight the EO. These firms are doing what is necessary for this country to remain “a government of laws, and not of men.”

But far too many firms have kept quiet. One can readily imagine why. Clients of these firms are panicked; large business interests are at stake, and firms are trying to avoid retaliation. That’s enough to daunt any leader. Standing up is likely to have very real costs. As one of Perkins Coie’s lawyers put it: The EO “truly is life-threatening … It will spell the end of the law firm.” Indeed, when asked in court whether Williams & Connoly would face sanctions for the sin of defending Perkins Coie, Trump’s attorney refused to rule that possibility out, saying it was a matter solely within the president’s discretion. Faced with the reality of retaliation and being called “corrupt” and “unethical” by Trump, most Big Law leaders duck.

[Christopher L. Eisgruber: The cost of the government’s attack on Columbia]

Even so, silence has real costs as well. As the New York Times columnist David French put it in the different context of university defunding, Columbia University is not the only target, just the first. If other universities do not defend academic freedom, they will fall like dominoes. Likewise, there is no reason to think these law firms will be the only ones to feel Trump’s wrath.  

For a small number of other firms, the problem isn’t cowardice; it’s worse. Three of the most prominent Big Law firms—Kirkland & Ellis, Sullivan & Cromwell, and Jones Day—are well known for their Republican clients and their record of conservative advocacy. Kirkland, for example, was the home of the late Ken Starr, the former independent counsel (whom I used to work for). Noel Francisco, Trump’s former solicitor general, and Don McGahn, his former White House counsel, are partners at Jones Day. Meanwhile, Sullivan & Cromwell—one of the most storied Wall Street firms, founded in 1879—has taken on Trump as a client in the appeal of Trump’s New York criminal conviction. Few can doubt these firms’ conservative bona fides.  

These firms, most of all, ought to place their commitments to the rule of law and time-honored values of the legal profession over their political allegiances. Criticism of the president would be all the more powerful coming from these firms. Yet they remain silent—avoiding Trump’s scrutiny and anger and attracting, one can imagine, a lot of business.  

But by far the first-place award for submission must go to Paul Weiss. This venerable New York law firm is no patsy. In 2024, it was reported to have more than $2 billion in revenue—enough, one would think, to stand up and fight. And yet it caved. Rather than follow Perkins Coie and fight, it conceded to Trump, agreeing to end its DEI program and, according to the White House, acknowledging that Pomerantz, its former partner, had engaged in “wrongdoing.” Worst of all, it agreed to pay protection money, much like any good mob victim, promising to spend $40 million on pro bono legal services for causes that Trump supports. Brian Karp, the firm’s managing partner, said in an email to the firm’s lawyers that Paul Weiss had little choice if it was going to survive. “Clients had told us that they were not going to be able to stay with us, even though they wanted to,” he wrote in the email. “It was very likely that our firm would not be able to survive a protracted dispute with the administration.”  

It is difficult to see this as anything other than an utter capitulation by a large, well-heeled law firm putting financial success ahead of principle. Its remaining clients may well wonder at the limits of the firm’s loyalty, and its partners will wonder at the stain on their reputation. Though the firm is, to be clear, a victim of Trump’s assault, its abject surrender is a choice.

And surrender has a cost. Following his success in coercing Paul Weiss, Trump has doubled down. He followed by saying that law firms opposing him in court engage in “grossly unethical misconduct.” Late last week, he issued a memorandum to the attorney general and the secretary of homeland security, directing them to seek sanctions and file ethics complaints against lawyers pursuing “baseless partisan attacks” against the federal government. Essentially this is a statement that the federal government will “Paul Weiss” anyone in its way. Trump’s most recent target is the firm Jenner & Block, which has also been targeted with an executive order. Its sin? A “refusal to accept the biological reality of sex.”  It seems clear, now, that Paul Weiss’s selfish act of self-preservation will affect the entire profession. Capitulation to a bully doesn’t bring peace; it brings more bullying.

How the legal profession responds now is of vital importance not just to the future of this particular industry but to the American public and the rule of law. Big Law in America can either ignore the new reality and model cowardice and cravenness, or step up.