Bonus 126: [Chill] All the Lawyers

Lawyers and law firms committed to the rule of law should be the first (and loudest) critics of the Trump administration's effort to punish and intimidate those who represent the "wrong" clients.

Welcome back to the weekly bonus content for “One First.” I usually put Thursday’s bonus content behind a paywall as an added incentive for those who are willing and able to support the work that goes into putting this newsletter together every week. But for reasons that will become obvious, I wanted today’s installment to be available to all. I’m grateful to those of you who are already paid subscribers, and hope that those of you who aren’t will consider a paid subscription if and when your circumstances permit, even though you won’t need it today:

The Trump administration is continuing to do its best to provide a steady stream of fresh hell worthy substantive topics. And there’s also last night’s administrative stay from Chief Justice Roberts temporarily pausing the government’s obligation to pay $1.5 billion in foreign aid funding (about which I’ll have more to say later today). But I wanted to use today’s scheduled newsletter to tie together a series of unconnected (but related) headlines from the past week—all of which have, at their core, efforts on the federal government’s part to punish or otherwise intimidate lawyers and law firms for … doing their jobs.

Among them, there is Secretary of Defense Pete Hegseth’s Friday night sacking of the senior military lawyers in the Army, Navy, and Air Force—lawyers who, by law, are required to provide “independent legal advice” to the Pentagon’s civilian and military leaders. There is President Trump’s revocation of security clearances for all of the lawyers at Covington & Burling who were in any way involved in pro bono representation of Special Counsel Jack Smith once he left government service (and Trump’s ominous suggestion, captured in the video in which he signed the revocations, that “you’re going to do this with more firms, right?”). There is the threat by interim D.C. U.S. Attorney Ed Martin that Covington faces a criminal investigation for its representation of Smith. And there is the entirely predictable reporting on growing tensions inside major law firms about whether/how much they should be involved in suits against the Trump administration, especially on behalf of former government officials.

There has long been a rich and robust debate about whether/when lawyers should be criticized or even vilified for representing unpopular clients. Cornell law professor Brad Wendel has an excellent book on the subject, Canceling Lawyers, and an equally excellent newsletter in which he tries to work through at least some of the ethical dilemmas that modern lawyers face. But it strikes me that what the Trump administration is doing is not just about specific lawyers representing unpopular clients, but is rather far more ominous: The administration is acting in ways that will necessarily chill a growing number of lawyers from participating in any litigation against the federal government, regardless of who the client is. That, in turn, will make it harder for many clients adverse to the Trump administration to find lawyers to represent them—such that at least some cases either won’t be brought at all or won’t be brought by the lawyers best situated to bring them.

One of my favorite opinions by Justice Kennedy (admittedly, it’s not a very long list) is his 2001 opinion for the Court in Legal Services Corp. v. Velazquez, in which he explained why meaningful access to lawyers is vital to the separation of powers—because courts depend upon a robust bar in order to play their role in holding the other branches of government accountable; they can’t go out and find cases on their own. On that view, with which I wholeheartedly agree, what the Trump administration is doing is far more than just bad behavior; it’s a direct threat to the rule of law—almost as much as defying court orders would be. Shakespeare’s Dick the Butcher may have suggested the need to “kill all the lawyers” before imposing authoritarian rule, but chilling lawyers into not even challenging unlawful government action may be just as effective in the long term—and should be decried and resisted just as emphatically, especially by the very law firms that are the apparent downstream targets of such troubling tactics.

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Lawyers, Velazquez, and the Rule of Law

The very first sentence of the Preamble to the American Bar Association’s Model Rules of Professional Conduct says quite a lot about the unique role lawyers play in our constitutional system: “A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.” That special responsibility extends not just to the fairness of our legal system, but to its efficacy in “preserving government under law.” One need not be a lawyer (or be represented by a lawyer) to utilize the legal system. But those who choose the bar as their calling take on a unique obligation to stand up for the rule of law—including, where necessary, holding the government to account.

More than just a professional ethos, the ability of lawyers to be unfettered in their ability to challenge government conduct has constitutional significance, as well. Velazquez isn’t the only case in which this has come up, but it is illustrative. There, Congress had purported to bar the Legal Services Corporation (which takes money appropriated by Congress and distributes it to recipients who provide free legal services to indigent clients) from using its federal funds in support of any efforts to amend or challenge the constitutionality of federal welfare law.

In an opinion by Justice Kennedy, the Supreme Court held that Congress couldn’t thus limit the LSC. Although the Velazquez Court specifically held that the spending conditions violated the First Amendment, it pitched the constitutional implications in much broader terms:

Interpretation of the law and the Constitution is the primary mission of the judiciary when it acts within the sphere of its authority to resolve a case or controversy. An informed, independent judiciary presumes an informed, independent bar. . . . By seeking to prohibit the analysis of certain legal issues and to truncate presentation to the courts, the enactment under review prohibits speech and expression upon which courts must depend for the proper exercise of the judicial power. Congress cannot wrest the law from the Constitution which is its source.

And by limiting the ability of lawyers to challenge government action, the offending statute “threatens severe impairment of the judicial function.” Velazquez thus equated (in my view, correctly) a meaningful ability on the part of lawyers to challenge government action with the ability of the judiciary to meaningfully check that same action—where a robust and engaged bar was and is essential to maintaining the separation of powers. After all, courts are inherently reactive bodies; and federal courts, in particular, are limited to actual cases and controversies brought to them by real parties. If lawyers, or even a meaningful subset of lawyers, were precluded by the government from bringing viable lawsuits against the government, we would risk the same “severe impairment of the judicial function”—and, through it, severe impairment of the rule of law.

This is why, when then-Deputy Assistant Secretary of Defense Cully Stimson infamously encouraged corporate clients to boycott law firms that represented Guantánamo detainees back in 2007, his comments were universally condemned (Stimson later apologized). Although some of the responses to Stimson focused on the detainees’ right to zealous representation, the more basic point was that the rule of law itself was implicated by whether courts could review the government’s detention and treatment of the Guantánamo detainees. And because, in that context, the detainees’ access to the courts depended upon their access to counsel, the involvement of lawyers, especially those with the resources to litigate against the government, was essential to the courts’ ability to serve their constitutional function. Law firms were thus to be (and were) celebrated, not shunned, for their tireless pro bono efforts in the Guantánamo cases.

Trump’s Assault on Lawyers and Law Firms

It’s against that backdrop that the Trump administration’s behavior over the past week has been so much more than just petty and vindictive. I’ve already written about Secretary of Defense Pete Hegseth’s Friday night removals of the senior military lawyers in the Army, Navy, and Air Force—and the ominous message it sends for the ability of government lawyers to stand up to their bosses, even those with a statutory obligation to provide “independent legal advice.” Then we had Tuesday’s memorandum signed by the President, which, among other things,

direct[s] the Attorney General and all other relevant heads of executive departments and agencies (agencies) to immediately take steps consistent with applicable law to suspend any active security clearances held by Peter Koski and all members, partners, and employees of Covington & Burling LLP who assisted former Special Counsel Jack Smith during his time as Special Counsel, pending a review and determination of their roles and responsibilities, if any, in the weaponization of the judicial process. I also direct the Attorney General and heads of agencies to take such actions as are necessary to terminate any engagement of Covington & Burling LLP by any agency to the maximum extent permitted by law and consistent with the memorandum that shall be issued by the Director of the Office of Management and Budget.

This memorandum, which Trump signed from the Oval Office in a ceremony aired on television, and which also directed agencies to reevaluate existing contracts with Covington, came after an earlier tweet by Ed Martin, the interim (and grammatically challenged) U.S. Attorney for D.C., who, in response to a story about how Covington had provided $140,000 in free legal services to Smith, wrote “Save your receipts, Smith and Covington. We’ll be in touch soon.” And as if all that wasn’t enough, the video of the memo-signing ceremony captured Trump saying “you’re going to do this with more firms, right?”

Right on cue, Bloomberg Law was out with a story yesterday noting the internal tensions that had already been brewing in a number of major law firms over whether/to what extent they should be representing former government employees or others seeking to sue the Trump administration. The piece quotes “one Big Law partner [who] said he’s never witnessed this level of concern in which firm leadership worries they could jeopardize their economic future by protecting the rule of law.” Presumably, Trump’s very public attack against Covington will only sharpen the divides reflected in those debates—and continue to keep at least some of the firms that have thus far been reticent to get involved in these cases on the sidelines.

Why the Attacks on Lawyers and Law Firms Matter

Of course, the administration’s behavior, and the tensions within big law firms that such behavior has presumably exacerbated, haven’t stopped the flood of lawsuits against the Trump administration that we’ve seen over its first 5+ weeks. And some of those suits do indeed have the names of big law firms on them. The others have been filed by (excellent) lawyers who work for other legal shops—public interest groups, state attorneys general, and other organizations with less reason to fear reprisal by the federal government (or for whom such reprisals would be less damaging to their business model). In those respects, the sky isn’t falling when it comes to lawyers standing up for the rule of law—or their ability to bring lawsuits challenging allegedly unlawful behavior by the federal government—yet.

But as the Guantánamo example underscores, big law firms will often have resources that these other litigants lack; and, in any event, the more that big firms are involved in this work, the more it sends the message that these are not just politically motivated lawsuits by the administration’s partisan opponents, but rather are efforts by the legal profession, writ large, to stand up to real or perceived lawlessness on the part of the government that represents us—that this kind of work is what lawyers should aspire to, and not just do quietly and under the radar so as to not attract attention.

That reality leads to two equally important conclusions: First, the Trump administration’s efforts to chill or otherwise intimidate lawyers and law firms from standing up to the government, whether from within or without, has grave implications for the rule of law—both directly by seeking to put a thumb on the scale against suing the government and indirectly by seeking to delegitimize the efforts of those firms and lawyers who are bringing (and will bring) those cases anyway. In the specific case of Covington, it may well reflect retaliation in violation of the First Amendment. But it should be condemned regardless.

Second, and as importantly, we lawyers—and, especially, law firms—have an obligation to rally to the defense of our fellow lawyers and law firms, and not to skulk about in the hopes that we can avoid taking any position that would offend the government, our clients, our employees, or some combination of all three. (This goes for law schools, as well.) Big law firms, especially, are the standard bearers of our profession. They are, quite understandably, interested in protecting their bottom line. But we all chose a profession in which our financial security isn’t the only (or even the dominant) consideration. We chose a profession in which fighting to preserve the rule of law is central to our professional abilities and responsibilities. If big law firms won’t convey that message loudly and publicly when our ability to play that role is under attack, that sets a terrible precedent for the future of legal practice in this country.

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To be sure, it’s a lot easier for me to say all of this (and say it publicly) than it might be for others who share my views. I’m a tenured law professor at a private university in a (very) blue jurisdiction—where neither my own livelihood nor that of my employer depends upon whether the federal government approves or disapproves of my work. If anything, though, that’s why it seems so important to write about this topic at this juncture. It may be entirely appropriate to shun lawyers who choose to represent unpopular, or even loathsome, clients—even in cases in which the adverse party is the government. But social criticism (if not ostracization) is not in the same universe as governmental intimidation.

Lawyers, as much as anyone, should understand that distinction. And we should be shouting from the rooftops about why the latter is so pernicious not only for our profession, but for the rule of law we spend our careers (purportedly) striving to support.