The rule of law is the cornerstone of our democracy. It is what separates us from dictatorship. Lawyers have a special responsibility to uphold that rule. Like all lawyers, that is what I signed up for on the very first day I was admitted to the bar, when I took an oath to defend the Constitution and the rule of law it so nobly enshrines.
President Trump has recently targeted several of the nation’s most prominent law firms with executive orders (EOs) that impose potentially ruinous sanctions simply for representing clients and taking on causes that he disfavors. These orders represent a grave threat to our constitutional order. Some of these firms have fought back in court, and have quickly obtained restraining orders on the ground that the EOs are likely unconstitutional.
To date, nine law firms, most of them based in New York, have avoided getting slapped with an EO by entering into deals with Trump. These deals involve the collective commitment of almost a billion dollars’ worth of free legal work to support causes favored by Trump.
These law firms invariably issue “move along folks, nothing to see here” statements. A&O Shearman, for example, announced that nothing in the deal compromises its “core values” or its “commitment to…the rule of law.” Paul Weiss stated that the deal did not “compromise our core values and fundamental principles” and boasted that the firm would continue to “courageously stand up for fundamental rights and liberties.”
These statements are pure uncut hokum. Rather than stand up for the rule of law, the firms making deals with Trump have betrayed that rule.
To appreciate how cutting a deal with Trump undermines and degrades the rule of law, it is necessary to understand why the EOs represent an unprecedented assault on that rule. These EOs are designed to threaten the firms’ existence, including by barring firm lawyers from access to government buildings, preventing government officials from engaging with firm lawyers, and suspending all security clearances held by firm lawyers.
The EOs impose these restrictions simply because these firms engaged in speech and represented clients that Trump doesn’t like — a transparent violation of the First Amendment. By summarily imposing this punishment without giving the firms notice and an opportunity to contest it, the EOs also violate the Fifth Amendment right to due process.
And, in violation of the fundamental separation of power principles on which our Constitution is based, Trump has set himself up as prosecutor, judge, and jury, claiming the right to inflict punishment on specific groups or individuals with the stroke of his pen. We fought the War of Independence 250 years ago to ensure that such absolute power would never again rest in the hands of one individual.
These EOs accordingly discourage the targeted law firms from challenging unlawful government action and representing clients disfavored by Trump. Smaller, less powerful law firms get the clear, chilling message: you too can face ruinous sanctions by representing the “wrong” clients or challenging government action. The rule of law cannot survive in that environment.
The law firms that have entered into deals with Trump did nothing other than conscientiously represent their clients. Yet they capitulated to a shakedown: the specter of financial ruin, to be accomplished by the threat of being hit with an unconstitutional EO. And they did so without so much as a whimper of protest.
This sends the message that governing by illegal shakedown is fine. Indeed, instead of calling out this extortionate conduct for what it is, these firms invariably issue statements saying things like they “look forward to a continued constructive and productive relationship” with Trump. In this way, these prominent firms bestow their seal of approval on this grotesque abuse of power. In doing so, they aid and abet Trump’s assault on the rule of law.
Surrendering to Trump in this manner also sends a strong and clear message to all law firms: if these giant firms are cutting deals with Trump, what chance do smaller and less powerful firms have to resist? That message further undermines the rule of law.
At a time when it has never been more important to stand up for the rule of law, the firms entering into deals with Trump have not just failed to defend the rule, they have affirmatively contributed to its deterioration. They have betrayed the profession’s most deeply held principles, violated their oaths, and permanently dishonored themselves.
Speyer is a lawyer.
