The Trump administration, on March 2, filed to drop its appeals in all four pending law firm penalty cases, and then this morning indicated it wanted to withdraw the moves and keep the cases alive. While the reversal was unexplained, one speculation was that the administration was seeking a way to avoid casting legal doubt on the deals it had struck earlier with nine other law firms.
Even assuming the cases are dropped, I don’t think this signifies some sort of new respect for the principle of an independent bar. These appeals were obvious losers, and this administration dislikes appearing to be one. And the cases were all but indefensible in the arena of public opinion. They were very obviously fueled by grudge and spite on Trump’s part, and they aimed to kneecap courtroom opposition to Trump on various issues of wide public interest. That included his stolen-2020-election falsehoods and his other legal stands on campaigns and elections. By personally threatening lawyers who cross Trump on campaign and election matters, they menaced the prospects for a fair and free courtroom adjudication of whatever he tries next on that front.
It was a closer thing than many may have realized at the time. As attorney Sean Marotta has observed, no one really knew at the time whether law firms that chose to defy Trump’s revenge orders would even survive. Some clients and lawyers were frightened by the sanctions into abandoning ship, and if more had been, the spiraling implosion could have closed a firm’s doors long before it got to see any day in court. Among those sanctions: purporting to forbid a firm’s employees from so much as setting foot in any federal building, as is regularly necessary to represent clients before agencies, and directing a review of federal contracts awarded to any clients of a targeted firm, whether or not the clients use that firm on federal business.
Friends of constitutional liberties and the independence of the bar should join in grateful thanks to Jenner & Block, WilmerHale, Perkins Coie, and Susman Godfrey, the firms that (appear to have) prevailed, along with the intrepid lawyers from many firms who defended them or spoke up in public support. (No red badge of courage to the firms that folded.)
In their move to drop the appeals, Trump and his advisers may have calculated that they had already wrung all the intimidation value they could out of last spring’s orders and could expect mostly bad publicity ahead if they continued. But note what Trump himself has reason to believe is the success of his campaign. His threats caused nine big law firms to back down on vital principles of independence and pledge assistance to his favored causes. He has gotten away (so far) with using the powers of the presidency to gratify his wish for revenge against various lawyers who fought him and his allies in court, and even partial success in that effort is calculated to chill and deter vigorous courtroom advocacy against him and his allies in the future. It is an abuse of presidential power that imperils the constitutional rights of all Americans. It also previewed Trump’s willingness to use the powers of the presidency to threaten economic annihilation against any entity—from a trading partner to a leading AI firm—that fails to yield to his will.
Even if the dropping of the cases sticks, there will still be plenty of disturbing loose ends. The injunctions in place are themselves hard to enforce, and presidential appointees can exercise informal but powerful sanctions that are not easy to prove. The litigation generally did not challenge the arbitrary withholding of security clearances, even though firm-wide bans on such clearances are a big disincentive should a law firm seek to continue representing, say, defense contractors or whistleblowers. Note also that there remains outstanding (and, to my knowledge, unchallenged so far) a related executive order from last March that purports to authorize additional revenge measures against law firms that are supposed to have behaved improperly in court proceedings adverse to the administration. It proposes placing the determination of impropriety in the hands of the administration rather than judges.
This echoes a theme of the main revenge decrees, which denounced and imposed penalties against various private lawyers for anti-Trump positions and actions in court that judges had often specifically upheld against claims of impropriety and that occurred as part of cases that themselves prevailed on the merits.
Earlier at Cato from Thomas Berry (on the institute’s participation in the Perkins Coie brief), Patrick Eddington, and from me here, here, here, here, here, and here.
