Trump Has His Law Firms Right Where He Wants Them
Nine major corporate law firms have groveled before President Trump by agreeing to provide hundreds of millions of dollars in free legal services to the executive branch. The immediate result of these capitulations is clear: The firms avoid federal sanctions and remain free, for now, to enjoy the boom times in their corner of the legal market. But another consequence is also true, if less immediately apparent.
By entering into agreements with the Trump administration, these law firms have become subsidiaries of it, as the president intends to remind them in degrading and humiliating ways. The firms' coming nightmare will last a lot longer than their current reprieve.
Perkins Coie, which has a major presence in Washington, was the first firm to receive a targeted executive order as punishment for representing clients of whom the president disapproved, specifically Democratic politicians. Perkins promptly went to court, and after winning an immediate restraining order, earned a smashing victory, as Judge Beryl Howell ruled that the executive order violated the Constitution.
The second firm threatened by Mr. Trump, the New York-based Paul, Weiss, chose instead to cut a deal on March 20. The firm escaped the sanctions, including the possible loss of federal contracts by its clients, and in return promised $40 million in free legal assistance to causes embraced by Mr. Trump. In quick succession, eight other firms — Kirkland & Ellis, Latham & Watkins, Skadden, Milbank, Willkie, Simpson Thacher, A&O Shearman and Cadwalader — made similar capitulations, and in total the firms have promised the president about $1 billion in legal services.
The surrender of Paul, Weiss and the other firms reflects broader trends in the legal industry. Until the last couple of decades, the world of big law firms was a staid one. Partners tended to remain at one firm for their entire careers, and their compensation moved along in lock step with that of their colleagues who graduated from law school in the same year.
No longer. Top lawyers with big books of business now operate as free agents, and they move from firm to firm based on which one will pay them the most. The boom in private equity, which produces frequent transactions requiring lots of expensive legal help, has also fattened firms' bottom lines. Few have thrived more in this environment than Paul, Weiss, which has successfully poached big rainmakers from competitors and pays these lawyers as much as $25 million a year.
Most significant corporate transactions require at least some rounds of approval from one government agency or another, or the deals concern companies with their own federal contracts. A law firm that finds itself on the wrong side of the Trump administration risks retribution against its clients, who may in turn decide to look elsewhere for representation. This is why every firm in America is vulnerable to the threats Trump has issued. But firms built on mercenaries face unique risks.
Lawyers who change firms based solely on compensation will likely be the first to flee when the gravy train stalls. If a firm becomes a pariah, its star lawyers may become free agents again, find more congenial professional homes and take their clients with them. As Brad Karp, the chair of Paul, Weiss, put the stakes of the possible Trump sanctions in a memo to the firm, 'Our firm faced an existential crisis. The executive order could easily have destroyed our firm.'
So Paul, Weiss caved, which was, Mr. Karp concluded, no big deal. As he told his colleagues, the firm has always done a lot of pro bono work, and he only agreed to assist the president in 'areas in which we are already doing significant work,' such as helping veterans. Paul, Weiss and the president would work together only 'in areas of shared interest.'
This description of the deal reveals a stunning naïveté about what it's like to do business with Mr. Trump. Notwithstanding Mr. Karp's wishful thinking, the president has spent the last several weeks reminding Paul, Weiss and the others that their escape from sanctions came with a price: They work for him now.
In recent weeks, Mr. Trump has announced a series of policy initiatives in which he expects the law firms to represent his interests. On April 8 he signed an executive order aimed at 'reinvigorating America's beautiful clean coal industry' by opening federal lands to mining and reducing environmental restrictions. In a ceremony at the Oval Office, where he was surrounded by coal miners in hard hats, Mr. Trump said, 'We're going to use some of those great firms to work with you on your leasing and your other things, and they'll do a great job.'
Similarly, on April 28, the president issued an executive order for 'strengthening and unleashing' law enforcement by attempting to limit legal consequences for alleged police brutality. To that end, Mr. Trump directed Pam Bondi, the attorney general, 'to provide legal resources and indemnification to law enforcement officers who unjustly incur expenses and liabilities. … This mechanism shall include the use of private sector pro bono assistance for such law enforcement officers.' Mr. Trump has also said that he expects pro bono assistance from the firms as he negotiates trade deals and tariffs with other countries.
The president is well aware that many lawyers at these big firms lean liberal and contribute substantially to Democratic candidates, and that's surely one reason he wants to punish them by conscripting them into his political crusades. (The partners at Paul, Weiss include Loretta Lynch, who was attorney general under President Barack Obama.) For Mr. Trump, a great part of the appeal of the settlements must be that he gets to force these lawyers to argue for policy positions he knows they detest. As Karoline Leavitt, the White House press secretary, said, 'Big Law continues to bend the knee to President Trump because they know they were wrong, and he looks forward to putting their pro bono legal concessions toward implementing his America First agenda.' Even more than the free legal help, what the president gets from the law firms is the joy of publicly dominating and demeaning his adversaries.
What if the law firms refuse? What if they say that they never agreed that their pro bono services were meant to service the president's 'America First agenda'? Several of the firms have said publicly that they will refuse to do pro bono work for causes they do not support. Paul Weiss has a written agreement with the president, but it appears that most, if not all, of the other firms have only handshake agreements with Mr. Trump. The very vagueness of the agreements allows the president to insist that his version of the deal is the correct one.
Moreover, Mr. Trump will relish a fight over the adequacy of the firms' compliance with their pro bono obligations to him as he threatens to (or actually does) impose the kind of sanctions that prompted the firms' surrender in the first place. Either way, the president wins. He gets the legal help he wants or he inflicts the punishment he wanted to impose at the outset. Either way, the law firms lose.
Of course, from the beginning, there was an alternative. Perkins Coie and three other sanctioned firms — Jenner & Block, WilmerHale and Susman Godfrey — went to court and challenged the constitutionality of the orders against them. They did nothing more than what lawyers are supposed to do: use the courts to vindicate the rights of the oppressed — in this case, themselves. Perkins Coie has already won, and three other judges have put the other orders on hold.
In all, four different federal judges suggested that the sanctions, which were unprecedented in American history, violated, among other provisions, the First, Fifth, Sixth and 14th Amendments. Notably, the Trump administration, perhaps recognizing the weakness of its legal position, has not yet even tried to appeal these judgments. Its strategy was always based more on bullying than on litigating. The obvious merit of the protesting firms' cases makes the surrenders of the nine firms all the more disgraceful.
There's a broader lesson in the humbling of Paul, Weiss and the other firms, because it's not just law firms that the president is attempting, with similarly extortionate tactics, to bend to his will. Universities, which Mr. Trump is purporting to punish for allowing antisemitism, are next. Columbia followed the Paul, Weiss example, hoping that a few initial concessions would keep the president at bay. (They won't, as Columbia has already learned.) Harvard is going the Perkins Coie route, placing its trust in the rule of law rather than in Mr. Trump's tender mercies.
By giving in, the capitulating firms and universities will learn a lesson from the streets that Mr. Trump knows better than they do: Borrowing money from a loan shark isn't simply adding a new monthly expense; making that kind of deal is a way of life. So is being in Mr. Trump's pocket.
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