Doj’s Defense Of Trump’s Biglaw Executive Orders: Look How Many Firms We Scared Into Compliance!

Remember when the Department of Justice seemed to realize that defending Donald Trump’s blatantly unconstitutional executive orders targeting major law firms was a bad look? Good times. That lasted, what, a day?

The administration is now back in appellate court insisting those same executive orders were perfectly fine all along — and explicitly pointing to the law firms that didn’t fight back as proof that the orders worked exactly as intended.

If you’ve been following along, you’ll recall the whiplash-inducing saga. First, the DOJ announced it was dropping its defense of Trump’s orders against firms like WilmerHale, Jenner & Block, Perkins Coie, and Susman Godfrey. That move left the firms that cut deals with the administration looking… less than thrilled about the roughly $940 million in pro bono payola they’d promised to conservative clients or approved causes to make the problem go away. Despite the documented chilling effect on the entire industry.

Then came the administration’s “backsies,” walking back the retreat and signaling that, like a cockroach after WW3, the appeal lives on.

And now? The government has filed a full-throated appellate brief defending the orders and insisting the district courts that blocked them were completely out of line.

Deep sigh as we sort through the worst of what’s in there (full brief available below).

According to the DOJ’s brief, signed by Deputy Associate Attorney General Abhishek Kambli, the courts simply have no business interfering with the president’s decisions here:

“The EOs are well within the Presidential prerogative. Courts cannot tell the President what to say. Courts cannot tell the President what not to say. They cannot tell the President how to handle national security clearances. And they cannot interfere with Presidential directives instructing agencies to investigate racial discrimination that violates federal civil rights laws.”

To be clear, in this case, multiple courts — across ideological lines — have found that the actions of the president violate the Constitution, which is EXACTLY the role of courts in the United States.

But the most revealing part of the filing comes when the DOJ addresses the broader legal industry, and specifically the firms that chose a different, much more shameful, path than the four challengers. The DOJ points to the firms that didn’t sue, the yellow-bellied nine that cut deals with the administration:

“The President also issued (or considered issuing) EOs addressing risks and practices from other law firms not parties to this appeal. In fact, many law firms agreed to address their practices and commit to providing pro bono work in the public interest.”

Then helpfully lists the nine firms for those that don’t have their names engraved in the brain: Allen Overy Shearman Sterling; Cadwalader, Wickersham & Taft; Kirkland & Ellis; Latham & Watkins; Milbank; Paul, Weiss; Simpson Thacher; Skadden; and Wilkie Farr. And contrasts that capitulation with the plaintiffs, “The four plaintiff law firms instead filed suit.”

The DOJ is arguing that the orders are legitimate, in part, because other firms folded.

Which, if you’ve been reading Above the Law over the past year, is the exact argument that’s been lobbed against the firms that took a knee.

The capitulating firms have taken a lot of criticism for cutting those deals — because yielding to unconstitutional government pressure is exactly how you normalize unconstitutional government pressure. The rule of law doesn’t survive if powerful institutions decide it’s cheaper to just write a check.

And now the DOJ is using that compliance as evidence the system works.

Those nine firms didn’t defuse the threat of unconstitutional executive authority. They validated it. And it’s why the rest of Biglaw should be hoping WilmerHale, Jenner, Perkins Coie, and Susman Godfrey win.

Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Mastodon @Kathryn1@mastodon.social.

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