by Stephen Kaus on March 31, 2025 (BeyondChron.org)
The Week in Trump Law
Donald Trump’s recent Executive Orders seeking to bring several large law firms to heel or put them out of business are full-bore authoritarianism. A failure to fight here will write off the courts as a check on Trump’s quest for total power.
One firm, Perkins Coie of Seattle, chose to fight. It quickly obtained an injunction against Trump’s order.
On Friday, March 28, 2025, two more firms, Jenner & Block of Chicago and WilmerHale of San Francisco, both went to court and two separate judges granted them immediate restraining orders.
Other firms sadly have knuckled under. New York’s Paul, Weiss, Rifkind, Wharton & Garrison (“Paul, Weiss”), known as a Democratic Party affiliated firm, brokered a deal through New England Patriots owner and Trump crony Robert Kraft and asserts that it has protected its $7.5 million in profits per partner. The firm agreed, in addition to tacitly recognizing Donald Trump as its all-powerful master, to provide $40 million in pro bono services to Trump favored causes, be “nonpartisan” and eliminate “DEI” from hiring and promotion.
On Friday, March 28, 2025, New York white-shoe firm Skadden, Arps, Slate, Meagher & Flom (“Skadden”) preemptively worked out an even worse settlement and issued the kind of groveling statement one would expect in Russia.
These are firms that formerly operated in the highest ideals of the legal profession, representing otherwise unrepresented people or causes, often without charge or pro bono. The American Bar Association, and probably every other state and local bar association, encourages representation of those unable to pay and equal access to justice.
Until last week, these firms had the ability to choose to whom pro bono service would be provided. Some firms were liberal and some were conservative, but it was not the government’s business to tell them what to do. Trump has not criticized more Republican firms, like Jones, Day and Kirkland and Ellis.
Our concept of a Constitutional Democracy entails courts deciding suits against the government with excellent attorneys representing the powerless, not just the authorities. Representation of unpopular causes and opposing the power of the government is the American ideal of a lawyer’s public service. The California State Bar encourages this by implementing a mandatory pro bono reporting requirement for attorneys.
Authoritarian countries do the opposite. In Turkey, after the 2016 coup attempt, many lawyers were prosecuted for defending accused participants and bar associations were closed in 77 of Turkey’s 81 provinces. In Russia, lawyers defending dissidents often face criminal charges, disbarment or physical harm. In China, lawyers are charged with “subversion of state power” and subjected to false confessions and torture.
Trump explicitly believes that he can punish lawyers for representation against him. The retributive purpose is stated in the orders. They start by expressing grievances about clients the firms have represented that bother Trump. For Perkins Coie, it is the Democratic Party in the 2016 campaign and the 2020 election aftermath, largely through Marc Elias, who is no longer with the firm. Trump’s order accuses Perkins Coie of challenging laws, often successfully: “Perkins Coie has worked with activist donors including George Soros to judicially overturn popular, necessary, and democratically enacted election laws, including those requiring voter identification.”
For Paul, Weiss, it is that former partner Mark Pomerantz left the firm to assist the previous New York District Attorney in a case that was never brought about Trump valuing his properties fraudulently. For Jenner & Block, it is because Andrew Weissman, who worked on the Mueller probe, used to work there.
WilmerHale, where Robert Mueller once worked, is accused of abusing “its pro bono practice to engage in activities that undermine justice and the interests of the United States” such as litigating election and immigration issues. Covington & Burling represented “deranged” Jack Smith.
Skadden’s offense was representing a private citizen on a defamation case against Trump favorite and convicted felon Dinesh D’Souza. All the firms are accused of “DEI” and “racial discrimination,” which in Trump’s world means discriminating against white men by seeking qualified women, minorities and LGBTQ+ individuals.
These “offenses” are encouraged by any code of professional responsibility. The conduct Trump condemns, representing controversial interests against the government, wins praise and often awards in the legal community. Famously, after the Boston Massacre, future President John Adams represented accused British soldiers with reasonable success, which gave birth to his statement, “facts are stubborn things.”
The Wall Street Journal quotes Eugene Scalia in a 2019 speech to the Federalist Society proclaiming that “[o]ne of the great traditions of the legal profession is to respect the right to representation of those we disagree with, and even to undertake that representation ourselves.”
The Perkins, Coie order was the most sweeping. It prevented the firm, and apparently businesses represented by the firm, from having government contracts. Perkins, Coie lawyers were to be banned from federal buildings, presumably including courthouses, “when such access would threaten the national security of or otherwise be inconsistent with the interests of the United States,” which could mean anything.
This was crippling. Perkins Coie states that “all of the top 15 largest clients, representing more than $343 million in 2024 revenue, … have or compete for Government contracts.”
The orders against the other firms also would hinder their work and cause clients to flee.
Perkins Coie sued and quickly obtained a temporary restraining order (TRO). Judge Beryl Howell said that Trump’s order “sends little chills down my spine” and compared it to a bill of attainder. Notably, Trump sued Perkins Coie unsuccessfully before he was President, ending up losing and being assessed nearly $1 million in sanctions. U.S. District Judge Donald M. Middlebrooks stated that the suit exhibited a “continuing pattern of misuse of the courts” and did not serve a legitimate legal purpose.
Perkins Coie’s motion discusses how Trump’s order contravenes four provisions of the Bill of Rights:
First AmendmentRetaliation against it and its clients for speech, association and their viewpoints.
Fifth AmendmentThere was no due process, such as notice and a hearing, only executive fiat.
Sixth AmendmentLitigants are entitled to counsel of their choice, not counsel of their opponent’s choice.
Equal Protection The order targets Perkins Coie and not similarly situated firms or lawyers without even an acceptable rational basis.
Where are the Lawyers? When Trump issued the first order against Perkins Coie, it was thought that the legal profession would circle the wagons against this clearly unconstitutional assertion of power. Not quite. Williams & Connolly, a firm that relies less than others on government work, represented Perkins Coie, but reportedly other big firms shied away.
Among the mega law firms, the business of law has become a cut-throat enterprise. For example, the Chair of Paul, Weiss claimed that rather than being helpful in recognition of the shared interest in the survival of a robust legal community, the other firms attempted to take advantage of Paul, Weiss’s predicament by poaching lawyers and clients.
Paul, Weiss itself stole away the leader of its corporate department from Cravath, Swaine & Moore in 2016 and over the years has taken many lawyers and lawyer groups from other firms, building itself from a primarily litigation practice to a corporate transaction powerhouse. The jilted firms, which probably gave as good as they got, reportedly could not wait to return the favor, especially those with strong Republican leanings.
The big-time legal profession landscape today resembles big-time college sports of today, except that there is no transfer portal. Everyone just wakes up Monday morning with some new partners and some empty chairs. Enabler Linked-in promotes an article titled, “Lateral Moves Are No Longer a Sign of Instability, They’re a Strategy for Success.”
Some firms have stepped up. Aside from Williams & Connolly’s representation of Perkins Coie, which was praised by Judge Howell. San Francisco’s Cooley LLP is representing Paul, Weiss, and former solicitor general Paul Clement is representing WilmerHale. San Francisco’s Keker, Van Nest & Peters has been outspoken against the orders, calling them inexcusable and despicable, and appears to be organizing a friend of the court brief on behalf of Perkins Coie.
Republican connected Quinn, Emmanuel was prepared to represent Paul, Weiss before that firm capitulated.
Lawyers not engaged in the cut-throat competition at the top have been vocal in their criticism of Trump. William Bay, president of the American Bar Association, stated, “We will not stay silent in the face of efforts to remake the legal profession into something that rewards those who agree with the government and punishes those who do not. Words and actions matter. And the intimidating words and actions we have heard must end,”
A group of city and county bar associations, including the Bar Association of San Francisco, issued a statement condemning Trump’s orders as violating “fundamental principles of our legal system and undermine the right to counsel, the independence of the legal profession, and the rule of law.” Others, including law school professors and retired judges, have joined the fray.
Presumably, the United States Supreme Court will have the final say. It should not be close, but these days, who knows.
The Week in Trump Law
As of March 28, 2025, there were 151 cases pending against the Trump Administration, 3 of which have been closed. These are the significant actions not discussed above.
Monday March 24, 2025
“Venezuelan” deportation to El Salvador case I Judge Boasberg denied the government’s motion to vacate the temporary restraining order against further deportations to El Salvador.
Columbia student may not be detained for now Judge Naomi Rice Buchwald granted a TRO that Yunseo Chung, a lawful permanent resident in the U.S. and a Columbia University student who participated in Gaza related protests not be detained pending further court order.
DOGE and government ordered not to disclose personally identifiable information of members of plaintiff unions. Including not to DOGE affiliates in other departments. The government appealed immediately and sought a stay.
Another judge enjoins military transgender exclusion New Jersey judge Christine O’Hearn grants 14 day TRO.
Tuesday March 25, 2025
“Venezuelan” deportation to El Salvador case II The government claimed the State Secrets Privilege for facts surrounding its defiance of Judge Boasberg’s initial order.
Injunction for fired USAIDS employees stayed Stayed until March 27th.
Wednesday March 26, 2025
“Venezuelan” deportation to El Salvador case III The three judge D.C. Circuit panel denied the government’s motion to stay Judge Boasberg’s TRO (2-1).
Stay of Judge Alsup’s order that probationary employees be rehired is denied The 9th Circuit Court of Appeals denies the governments motion to stay the order that probationary employees be rehired. Earlier in the week, Judge Alsup had broadened the injunction to the individual plaintiffs, contradicting other courts.
Fair Housing funds released. HUD ordered to release congressionally-appropriated fair housing funds.
Anti-DEI order blocked Illinois judge Matthew Kennelly granted a TRO temporarily blocking two anti-DEI executive orders.
Judge Howell refuses to step down in Perkins Coie case Here is her emphatically worded order. “When you can’t attack the message, attack the messenger.”
Thursday March 27, 2025
TRO to prevent visa revocations, detentions, and deportations of non-citizens denied New York judge Elizabeth Coombe denied the TRO and was skeptical of her jurisdiction.
Stay denied or order releasing blocked funds due to states The First Circuit Court of Appeals denied the government’s stay petition over the Rhode Island order invalidating the freeze of funds going to states.
Yet another judge enjoins military transgender exclusion Washington state federal judge Benjamin Settle granted a preliminary injunction. He wrote, “The government has … provided no evidence supporting the conclusion that military readiness, unit cohesion, lethality, or any of the other touchstone phrases long used to exclude various groups from service have in fact been adversely impacted by open transgender service under the Austin Policy. The Court can only find that there is none.”
Friday March 28, 2025
“Venezuelan” deportation to El Salvador case IV The government appealed to the United States Supreme Court to vacate Judge Boasberg’s order and issue an administrative stay and Judge Boasberg extended the TROs until April 12th..
Consumer Financial Protection Bureau preserved during case Judge Amy Berman Jackson stated that it is “overwhelming” that Plaintiffs will prevail, so she orders CFPB preserved while the case run its course.
USAID dismantling okayed by appellate court Late Friday, the Fourth Circuit Court of Appeals stayed the district court injunction halting the DOGE dismantling. The lower court found Musk’s actions likely to be unconstitutional because Musk does not have an official government position. The decision portends that the appellate court will agree with the Trump Administration on the merits.
Stephen Kaus is a retired Alameda County Superior Court Judge. He is a co-signer on a “friend of the court” brief in the Perkins Coie case being filed on behalf of a large national group of retired judges. @stephenkaus on X. @stephenkaus.bsky.social on Bluesky.
