May 1 is Law Day, an annual celebration of the rule of law. In the wake of the Trump administration’s unlawful behavior and intimidation of major law firms, this year’s observation presents an important opportunity for lawyers to retake our oath and stand up for a fair legal system.
Our Constitution was built to prevent authoritarianism and the mechanism to do so is our court system. The primary way for an unconstitutional act of a president or Congress to be stopped is through litigation. And for this litigation to happen, we don’t just need fair courts, we also need lawyers who are willing and able to bring cases challenging government overreach.
That’s why we have seen the Trump administration add another entry in its long list of targets: lawyers. Over the last two months, the administration has issued executive memos or orders against at least five major law firms in what appears to be retaliation for representing or employing people Trump sees as political adversaries. These orders suspend security clearances, direct federal agencies not to contact firm attorneys, bar attorneys from government buildings, and cancel federal contracts with the firms’ clients. Some of the orders refer to the firms’ pro bono work that the administration disapproves of and employment practices that promote diversity, equity, and inclusion.
Perkins Coie, Jenner & Block, WilmerHale, and Susman Godfrey have bravely challenged these orders in federal court, garnering temporary restraining orders to protect them for now.
Meanwhile, at least four firms, including Skadden, Arps, Slate, Meagher & Flom and Paul Weiss, capitulated by making deals with the administration. Skadden Arps was not even subject to a published executive order, but took the idea of “complying in advance” to new heights by agreeing to fundamentally change the nature of its pro bono program, among other actions, to appease the administration — even allowing the president to announce the deal himself. This normalized “making deals” with the president and called into question the integrity of attorneys doing so. After all, if a firm is willing to compromise in this way, can their clients trust them to zealously and diligently represent them and avoid conflicts of interest?
In addition to going after big law firms, the Trump administration is attempting to weaponize ethics and civil procedure rules to stifle dissent against their disastrous and cruel policies. Last month, the White House issued a memo instructing the Department of Justice to ask federal judges to require groups that sue the federal government to be financially responsible for the federal government’s potential costs and damages if a trial court issues an injunction that is reversed on appeal. Then they instructed the attorney general to seek sanctions against, reassess security clearances of, recommend termination of federal contracts for, and refer for bar discipline “attorneys and law firms who engage in frivolous, unreasonable, and vexatious litigation against the United States” now or over the last 8 years.
Lawyers should be united in fighting these attacks on the rule of law. After all, we took an oath to uphold the Constitution. It is one thing for a court to sanction an attorney for bringing a frivolous case or a bar association to disbar an attorney for violating their duty to uphold the Constitution and a much different thing for the president of the United States to blatantly threaten and punish attorneys he views as disagreeing with him.
Some may wonder why attacks against big law firms matter in the effort to achieve a just multiracial democracy based on the rule of law. After all, it’s no secret that they primarily make their living representing large wealthy interests. In addition to the principle of the matter, large firms often contribute valuable pro bono attorneys to important impact litigation brought by groups and individuals who would not otherwise have access to the court system.
Even though big firms are the ones currently in the crosshairs and the headlines, anyone who seeks to use the courts to uphold the Constitution in ways that the administration doesn’t like is supposed to be intimidated by these orders. We appreciate firms like Perkins Coie, Jenner & Block, WilmerHale, and Susman Godfrey for expending their resources to take the difficult step of challenging the administration and exercising their ability “to petition the Government for a redress of grievances” as guaranteed by the First Amendment.
So what can we do about it? For those of you out there engaging in litigation challenging the administration’s unconstitutional actions, including Alliance for Justice’s members, please keep making those nonfrivolous arguments and keep telling the truth about the facts. Thank you for this vital work.
For those of you who are not litigators, find ways to thank and support the law firms who are standing up for the rule of law. Consider signing on to an amicus brief supporting targeted firms or in other cases that may impact you. You can also join a lawsuit as a plaintiff if you’ve been negatively affected by the administration’s actions. Any of us can donate to nonprofits who are engaged in or funding such litigation. We can advocate against executive orders, which doesn’t count as lobbying for 501(c)(3) purposes. And we can all find ways to speak out about the problems people in our communities are experiencing.
This Law Day, Alliance for Justice is joining with Lawyers for Good Government, American Constitution Society, and many others at the U.S. Supreme Court to mark Law Day in DC. Lawyers throughout the country can find a National Law Day of Action event near them, or simply reaffirm their oath at home to stand up for bedrock principles of justice and due process.
The administration wants to scare us to keep us quiet — to stop us from challenging their cruel actions, standing up for the Constitution, the rule of law, and each other. We need to be motivated by our shared humanity, not our fear. Now is the time to bravely stand for the vision of an inclusive democracy with liberty and justice for all. Alliance for Justice will be there with you.
Nona Randois is general counsel at Alliance for Justice.