LAW FIRMS BAD CORP

7 23 mebbe redumbdent, sparked by west va v epa, major questions elbert lin

AN 7 26

The Justice Department has subpoenaed 14 major law firms for records about their communications tied to President Donald Trump’s executive orders.

The State reported Monday that the Trump administration is escalating its fight with major law firms by using Justice Department subpoenas to demand records. The move is part of an ongoing lawsuit from the American Bar Association, which alleges the administration has been trying to punish law firms for their past legal work, diversity efforts and political relationships.

Trump issued an executive order in early 2025 targeting more than five law firms with connections to investigations into Trump. Three of those firms sued civilly, alleging it was retribution. Some of Trump's biggest legal foes worked for the firms, so Trump targeted them, specifically naming the lawyers in the orders.

The broader suit comes from the American Bar Association, which alleges the administration used its authority to restrict things like access to federal buildings and security clearances and, in some cases, could hurt its clients’ government work.

Four of those firms that challenged the order in court have been successful, but some big firms agreed to hand over millions in free legal work. The ABA lawsuit wants a judge to declare the entire policy moot and prevent it from moving forward. The firms that were willing to settle with Trump could be put in an awkward position as a result.

Among the many concerns the ABA cites, it said firms may stop taking certain clients or cases because they fear retaliation.

One of the details in the subpoenas deals with longtime Trump advisor Boris Epshteyn, who doesn't work for the White House, but has reportedly been seen with the rest of the White House staff. Epshteyn appears to have been a go-between in dealmaking with the law firms that settled, reported the *New York Times*. The DOJ is demanding records of communications between the firms and Epshteyn and the ABA is now saying that they too want to see them.

Those communications could show the way that the bargains were made, what the White House wanted, and whether the arrangements were part of a broader pressure campaign. The Justice Department is trying to keep those communications under wraps, which suggests they’re central to the dispute. But since Epshteyn isn't a government employee, it will be difficult to invoke executive privilege or any of the other protections that a president can use.

Ultimately, the law firms want to find out what the pressure campaign looked like behind the scenes and whether it used power to intimidate or manipulate the law firms.

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an 8 25

Even though President Donald Trump's administration secured promises from some of the nation's biggest law firms to contribute more than $1 billion worth of pro bono work to further the administration's goals, the White House is now reportedly having a hard time getting some of those firms to follow through on their promises.

According to a Thursday report in the Wall Street Journal, many of those promises law firms made to perform free legal services have already been broken. This could be partially due to the success that firms who have sued in response to Trump's executive orders targeting them have had in court, with the Journal reporting that all four firms that fought back have so far prevailed. And firms that haven't fulfilled their commitments are reportedly hoping the administration will be too distracted with the work of governing to follow through on threats to suspend security clearances, federal contracts and access to federal buildings.

The Journal reported that the firms that agreed to help Trump only typically perform between $4 million and $5 million worth of pro bono work per year, meaning that in order to fulfill some of those commitments — like the firm Skadden's $100 million promise — it would take decades. And because Trump will leave office in January of 2029, many firms likely aren't taking their commitment to his administration seriously.

The paper further reported that far-right groups who have inundated the firms with requests for legal assistance have so far been stiff-armed. This includes the far-right Heritage Foundation (which is responsible for the notorious Project 2025 playbook), which has asked for help but has yet to receive any outside of initial meetings with some attorneys.

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And while Attorney General Pam Bondi has asked the Department of Justice to create ways to help law enforcement officers facing misconduct allegations receive free legal representation from the firms in question, none of them have responded to inquiries. California-based attorney Harry Stern, who represents police officers facing legal proceedings, told the Journal: "It's not happening."

Gary DiBianco, who leads a pro bono litigation group, told the Journal that the administration has likely lost its credibility with any lawyers it hopes to strong-arm into performing free work.

"I think the administration has completely lost the leverage it has over future firms," DiBianco said.

Click here to read the Journal's report in its entirety (subscription required).

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NOT SURE BAD EXACTLY?

AN 5 25

The Big Law firms that capitulated to President Donald Trump’s unconstitutional demands thought they were buying peace with his administration, preserving their client relationships, and protecting their bottom lines.

Recent developments illustrate the growing magnitude of their mistake.

Fighters Are Winning

On May 2, U.S. District Court Judge Beryl Howell became the first court to issue a final ruling that Trump’s executive orders targeting Big Law firms violated the First, Fifth, and Sixth Amendments to the U.S. Constitution. In a 102-page opinion, the court shredded Trump’s edict with a straightforward analysis that other courts are likely to follow:

“In a cringe-worthy twist on the theatrical phrase ‘Let’s kill allthe lawyers,’ [Trump’s Executive Order] takes the approach of “Let’s kill the lawyers I don’t like,” sending the clear message: lawyers must stick to the party line, or else.

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“Using the powers of the federal government to target lawyers for their representation of clients and avowed progressive employment policies in an overt attempt to suppress and punish certain viewpoints, however, is contrary to the Constitution,…. Simply put, government officials ‘cannot . . . use the power of the State to punish or suppress disfavored expression.’

“That, however, is exactly what is happening here.”

For those keeping score, Trump’s Justice Department has now lost every courtroom fight on the subject. Jenner & Block, WilmerHale, and Susman Godfrey obtained immediate temporary relief from his executive orders, as did Perkins Coie, which has now won a permanent injunction from Judge Howell.

Meanwhile, how are the firms that caved to Trump doing?

The Other Shoe Drops: #1

After providing Trump with a war chest totaling almost $1 billion in free legal services, the settling firms are now learning how he plans to use it. Previously, Trump had mused about using Big Law attorneys on coal leasing and tariff deals, but on April 28 things got real.

Trump issued an executive order titled, “STRENGTHENING AND UNLEASHING AMERICA’S LAW ENFORCEMENT TO PURSUE CRIMINALS AND PROTECT INNOCENT CITIZENS.”

The order emphasized the need to “protect and defend law enforcement officers wrongly accused and abused by State or local officials.” It directed Attorney General Pam Bondi to provide the legal resources necessary to defend those officers, including “private-sector pro bono assistance.”[emphasis supplied]

Stated simply, police officers accused of brutality and other misconduct will get Big Law attorneys to defend them – free of charge.

Meanwhile, traditional pro bonocauses, including defending immigrants’ rights, are suffering from the deterrent effect of Trump’s attack. Fearing his wrath, they are declining work that challenges his policies.

Settling firms were already getting blowback from their partners and associates as many have left their firms. Trump’s newly-added page to their pro bonocatalog won’t help recruiting or retention. And as with all things Trump, there’s no limiting principle. Appeasement never produces finality.

The Other Shoe Drops: #2

The firms’ stated reason for capitulating to Trump was concern that clients would leave any firm that was not in Trump’s good graces. That premise is not aging well either.

On April 11, Simpson, Thacher & Bartlett agreed to provide $125 million in pro bonowork “and other free legal services” to Trump-designated causes.

On April 22, the firm informed the Delaware Chancery Court that it would no longer be representing Microsoft in a case related to its 2023 acquisition of Activision. The same day, Jenner & Block replaced Simpson Thacher as Microsoft’s counsel.

Losing a client to another firm is not uncommon, and none of the players has commented on Microsoft’s switch. But capitulation to Trump has not been a panacea for preserving client relationships. A firm that challenges an unconstitutional order threatening its existence is a firm that many clients want fighting for them.

The Other Shoe Drops: #3

On April 24, 16 House members sent letters to nine firms that settled with Trump. Asking about their motivations and urging them to disavow the deals, lawmakers suggested that the agreements may violate federal and state criminal and civil laws while creating “potentially irresolvable violations of applicable Rules of Professional Conduct.” Previously, Sen. Richard Blumenthal (D-Conn.) and Rep. Jamie Raskin (D-Md.) sent requests for information from several firms and White House counsel on April 6 and April 18.

The Other Show Drops: #4

Firms assumed that capitulation would occupy a single news cycle and then disappear. But their public relations nightmares aren’t going away. Apart from the widespread and ongoing condemnation of the legal community, the story continues to have legs as a fateful moment for the rule of law in the United States.

The May 4 edition of CBS’s 60 Minutes ran a damning segment on Big Law firms that settled with Trump. None was willing to appear and defend itself or its deal. The legal term for such continuing cowardice is res ipsa loquitur– the thing speaks for itself. In this case, the firms didn’t speak at all.

On May 9, an article that later appeared in the New York TimesSunday print edition ran with this headline and subhead:

*Can Elite Lawyers Be Persuaded to ‘Wake Up and Stand Up’?

When the law firm Paul Weiss cut a deal with the Trump administration, a new kind of activist emerged.

Some of the settling firms, including Kirkland & Ellis and at least one other, have an escape hatch: Their “handshake deals” with Trump are not in writing. They can do what Trump does when he no longer likes his own prior agreement: Walk away.

In fact, even firms with a written agreement can walk away too. Whatever their form, the deals are probably not enforceable. But that was never Trump’s main objective. It was always about intimidation and deterrence. When firms bent the knee to him, he won and scored an invaluable public relations victory.

And his accompanying billion-dollar windfall didn’t hurt.

NOW READ:The single stupidest statement about Trump ever made

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https://www.eenews.net/articles/meet-the-lawyers-teeing-up-the-supreme-court-climate-showdown/

1/22

as arguments approach in the most significant Supreme Court environment battle of the decade, teams of lawyers are already making their case for how the justices should view EPA’s climate authority.

When the justices take the bench on Feb. 28 to hear arguments in West Virginia v. EPA,they will arrive armed with information from reams of briefs prepared by some of the nation’s leading environmental lawyers.

Those attorneys’ arguments will lay the groundwork in a high-stakes case that has the potential to upend EPA’s ability to regulate greenhouse gases from power plants — one of the nation’s largest sources of carbon dioxide emissions.

the challenge — brought by Republican-led states and coal companies — asks the Supreme Court to overturn a ruling by the U.S. Court of Appeals for the District of Columbia Circuit that struck down a Trump-era EPA rule gutting the Obama-era Clean Power Plan.

The 2015 Obama rule invoked EPA’s authority under the Clean Air Act to set systemwide requirements for power plant emissions reductions.

After the D.C. Circuit ruling, President Biden’s EPA had a clean slate to craft its own rule. The agency had said it would not return to the Clean Power Plan, whose goals have already been met by the power sector, even though the regulation never took effect.

The justices then took the unusual step of agreeing to hear a dispute over a regulation that does not technically exist.

Their ruling in the case, which is expected by next summer, could not only constrain EPA from issuing a comprehensive new carbon rule but also prevent Congress from handing off broad regulatory authority to federal agencies.

Here are some of the lawyers to know in this year’s high court climate slugfest:

Lindsay See

Leading the briefs for West Virginia is Lindsay See, the state’s solicitor general.

The coal-rich state, joined by 18 others, filed the first plea for the Supreme Court to weigh in on EPA’s climate authority. It was followed by three other petitions, which are now consolidated in one massive case.

See has served as West Virginia’s leading litigator since 2017 and previously worked as an associate atGibson, Dunn & Crutcher LLP, a firm with a prominent Supreme Court practice.

She has appeared once before the nation’s highest bench, in a 2018 case related to a discrimination challenge against an exemption in West Virginia tax law that protected state and local — but not federal — employees from having their pension benefits taxed. West Virginia lost the case.

West Virginia Attorney General Patrick Morrisey (R) and other state lawyers said the D.C. Circuit should not have allowed EPA to regulate power plant emissions under a “rarely used, ancillary provision of the Clean Air Act.” They referred to Section 111(d) of the statute, which served as the basis for the carbon rule.

“Save for a few general factors EPA was to take into account, the lower court told EPA it has ‘no limits’ on the emission-related measures it can impose — on any economic sector or almost any actor,” says the states’ most recent brief, which was signed off on by See.

See is a Harvard Law School graduate and clerked for former D.C. Circuit Judge Thomas Griffith.

Paul Seby

One other state has echoed West Virginia’s arguments in a petition and brief led by a lawyer who has been involved in the EPA carbon rule battle since the Clean Power Plan days.

Paul Seby, a shareholder at the firm Greenberg Traurig LLP and special assistant to North Dakota Attorney General Wayne Stenehjem (R), signed off on a brief that said the D.C. Circuit ruling “undermines the cooperative federalism framework carefully crafted by Congress” by finding that EPA — rather than states — can set power plant performance standards.

North Dakota v. EPA is one of the four petitions in the consolidated Supreme Court case.

Seby has argued against EPA carbon regulations before, back when the Clean Power Plan was before the D.C. Circuit. The court held a marathon argument over the regulation in 2016 but never reached a ruling.

Earlier that year, the Supreme Court had blocked the rule from taking effect, which allowed the Trump administration to dismantle it.

Seby holds a bachelor’s degree from the University of San Diego and a law degree from Lewis & Clark College.

Andrew Grossman

One of the other lead petitioners in the climate case, Westmoreland Mining Holdings LLC, hired Andrew Grossman to make its case to the high court.

Grossman leads BakerHostetler’s appellate practice and is a frequent conservative commentator on wide range of administrative and constitutional issues.

Grossman is an adjunct scholar at the libertarian Cato Institute and a former legal analyst at the Heritage Foundation. He’s also a familiar face on Capitol Hill, having testified several times before the House and Senate Judiciary committees.

In Westmoreland’s petition, Grossman raised what some environmental advocates referred to as a killer question: whether EPA may use Section 111(d) to create performance standards for existing stationary sources under the provision’s “hazardous air pollutants” program.

The justices granted the petition alongside others, but they said they would only consider the second question posed by Westmoreland’s petition: whether EPA’s carbon rule violated the major questions doctrine, which restricts federal agencies from deciding issues of “vast economic and political significance.”

Grossman attended Dartmouth College and theGeorge Mason University’s SCALIA School of Law.

Yaakow Roth

The fourth petition in the consolidated case comes from North American Coal Corp., represented byJones Daypartner Yaakov Roth.

Like the other challengers, the coal company argues that EPA and the D.C. Circuit have taken far too broad a view of federal climate authority under the Clean Air Act.

Roth comes to the EPA climate case with lots of experience before the Supreme Court. He was the brainchild behind an argument that led the Supreme Court to overturn convictions in the New Jersey “Bridgegate” scandal.

He has also fought to preserve restrictive voting laws in Arizona and to dismantle the Obama-era Affordable Care Act.

Roth has clerked for the late Supreme Court Justice Antonin Scalia and a federal appeals court judge.

He is a graduate of Harvard University and York University.

Elizabeth Prelogar

Before the Supreme Court agreed to hear West Virginia v. EPA, Elizabeth Prelogar had argued on behalf of the federal agency that it was too early for the justices to get involved.

The solicitor general noted in a brief filed in August that Biden’s EPA has not yet written a new carbon rule and has no plans to revive the Obama plan.

EPA instead intends to issue a new rule “after taking into account all relevant considerations, including changes to the electricity sector that have occurred during the last several years,” she wrote.

Prelogar, who was confirmed in late October, has already made several appearances before the Supreme Court, including in one case in which she argued on behalf of the federal government against abortion laws in Mississippi and Texas.

Since her appointment as acting solicitor general in January, Prelogar has also led Supreme Court briefs in several environmental cases, including one in which the Biden administration backed efforts by the developer of the PennEast natural gas pipeline to acquire state-owned land in New Jersey (Energywire, March 10, 2021). The pipeline company won its case, but the project was eventually canceled.

Prelogar, a Harvard Law School graduate, has previously served as assistant to the solicitor general and has worked in private practice. During a prior stint at the Justice Department, she served on the special counsel’s investigation into Russian meddling in the 2016 election.

She clerked for Attorney General Merrick Garland when he was a judge on the U.S. Court of Appeals for the District of Columbia Circuit and for Supreme Court Justices Ruth Bader Ginsburg and Elena Kagan.

Prelogar is the second woman to be confirmed as solicitor general. Kagan was the first.

Sean Donahue

Environmental groups that support broad EPA regulatory authority have turned to an experienced Supreme Court litigator to represent them in the case: Sean Donahue.

Donahue has been a go-to lawyer for environmental groups and public health advocates in some of the most high-profile litigation of the last decade, including Clean Air Act and climate cases.

He’s also represented environmentalists in key cases on the social cost of carbon for fuel economy and vehicle emissions standards.

Donahue and his team, including the Environmental Defense Fund’s Vickie Patton, will have a challenging task ahead of them. Several conservative justices have signaled skepticism of doctrines requiring them to defer to agency expertise, and the current case appears to be a coordinated effort to curtail EPA’s regulatory authority broadly.

In an interview, Donahue said once again it may be an environmental case that set an important precedent for administrative law.

"Statutes like the Clean Air Act," he said, "necessarily depend upon expert agencies to apply Congress’ health and environmental directives to complex factual records, developing technologies, about particular industries and pollutants."

Donahue, who works for Donahue, Goldberg & Littleton, clerked for former Supreme Court Justices Ginsburg and John Paul Stevens. He’s also a veteran of the Justice Department. He attended Columbia University and University of Chicago’s Law School.

Beth Brinkmann

Another attorney with Supreme Court experience is making the case for electric utilities that want to preserve the D.C. Circuit decision striking down the Trump-era carbon rule.

Before the justices granted the case, Covington & Burling LLP partner Beth Brinkmann led a brief on behalf of Consolidated Edison Inc. and other companies that said Supreme Court review of a nonexistent regulation would run the risk of a “ruling untethered to actual circumstances.”

Moreover, she wrote, the red states and coal companies are seeking relief from the justices even as the power industry has achieved the Clean Power Plan’s 2030 emissions reductions targets more than a decade in advance —even though the rule never officially took effect.

“Those changes, which include reductions in the cost of emission-reduction technologies and increasing consumer preferences for clean power, have only accelerated since adoption of the ACE Rule,” she wrote.

Brinkmann has argued more than two dozen times before the Supreme Court. As former deputy assistant attorney general at the Justice Department’s civil rights division, for example, she defended the Obama administration’s Affordable Care Act.

She has also worked in the appellate practice at the firm Morrison & Foerster and as an assistant federal public defender representing indigent criminal defendants.

Brinkmann is a graduate of the University of California, Berkeley, and Yale Law School. She clerked for the late Supreme Court Justice Harry Blackmun.

Elbert Lin

A utility industry group that opposes EPA’s ability to craft rules like the Clean Power Plan has staffed its legal team with an attorney who, at only 43 years old, has already made a significant impact on environmental law at the Supreme Court.

Elbert Lin was the lawyer who secured the unprecedented stay of President Obama’s climate regulatory regime, the Clean Power Plan, in 2016 while he was West Virginia’s solicitor general.

Lin said in an interview that his interest in environmental and administrative law was born out of necessity when he was West Virginia’s solicitor general. It was during Obama’s second term, and the administration was promulgating many major environmental rules, including the Clean Power Plan.

"Environmental regulations were of significant importance of the state," he said.

Now in private practice at the firm Hunton Andrews Kurth LLP, Lin is back in the EPA carbon rule litigation, representing America’s Power, a trade association of companies that produce electricity from coal.

Lin, who is the son of Taiwanese immigrants, has also argued key Clean Water Act cases at the high court. He argued on behalf of Maui, Hawaii, in a case over whether a federal permit is required for pollution that is pumped underground but eventually reaches the ocean.

The Supreme Court delivered a new test for determining whether a permit was needed, and a federal judge in Hawaii later sided with environmental groups arguing that Maui should have secured a Clean Water Act approval (Greenwire, Oct. 21, 2021). Legal experts say they are watching to see how other courts apply the Supreme Court’s test.

Lin attended Yale for undergrad and law school, and heclerked for a federal appeals court judge and Supreme Court Justice Clarence Thomas.

Reporters Lesley Clark and Niina H. Farah contributed.