Jenner & Block

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an 6 25

Federal judges — appointed by both Republican and Democratic presidents — have delivered major setbacks to the legal push behind President Donald Trump’s efforts to penalize certain law firms, The Hill reportedSunday.

In recent rulings, three judges invalidated executive actions designed to restrict government work for prominent firms including Perkins Coie, WilmerHale, and Jenner & Block.

"The early wins underscore the legal system’s ability to withstand the Trump administration’s pressure test, and have led some in the legal community to take shots at other elite firms that struck deals with Trump to avoid punishments," the report noted.

Harold Hongju Koh, a Yale Law School professor, told The Hill: “This is a moment for courage, not capitulation."

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“The firms that showed courage are being vindicated, and the ones who have capitulated have another chance to show courage,” he added.

Several major law firms have become targets of Trump’s backlash, largely due to their ties to figures and investigations he considers hostile.

Perkins Coie has been in Trump’s crosshairs for years, primarily because of its legal support for Hillary Clinton’s 2016 campaign and its connection to the opposition research that produced the widely discredited Steele dossier.

WilmerHale drew scrutiny from Trump for employing Robert Mueller both before and after he led the investigation into Russian interference in the 2016 election.

Similarly, Jenner & Block came under fire for its past association with Andrew Weissmann, a former prosecutor involved in Mueller’s team and a frequent Trump critic.

In a sharply worded decision issued Tuesday, U.S. District Judge Richard Leon — appointed by President George W. Bush — ruled in favor of WilmerHale, denouncing Trump’s actions as an attack on the foundational principles of the American legal system.

Leon argued that targeting major law firms with executive orders undermines the independence of both the judiciary and the legal profession, which he described as essential pillars of the nation’s justice system.

Meanwhile, in a piece publishedlast week, Democracy Docket, a platform supporting voting rights, highlighted analysis by Stanford political science professor Adam Bonica which indicates that federal district courts have ruled against the Trump administration in 96% of cases in May.

"Bonica’s findings suggest that judges from both political leanings are consistently ruling against Trump, with 72% of Republican-appointed judges and 80% of Democratic-appointed judges issuing unfavorable decisions.Trump’s cross-ideological loss rate is likely due to several factors," the article said.

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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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AN 5 25

U.S. President Donald Trump directed Attorney General Pam Bondi “to seek sanctions against attorneys and law firms who engage in frivolous, unreasonable, and vexatious litigation,” including legal filings for improper purposes and statements that are not based on evidence.

Bondi should start with the White House attorneys who drafted Trump’s executive orders targeting Big Law firms—and her Justice Department lawyers trying to defend them.

Did Real Lawyers Write These Orders?

Cloaked in empty rhetoric about “conduct detrimental to critical American interests,” retribution is at the core of Trump’s edicts.

For example, the only detailed rationale for Trump’s Jenner & Block order was the firm’s association with Andrew Weissmann, who returned to the firm in 2020 after completing his work for Special Counsel Robert Mueller on the Trump-Russia investigation. Other than the Weissmann diatribe, Trump’s order merely recited vague and unsupported assertions about alleged “partisan ‘lawfare,’” “abuse of its pro bono practice,” and “racial discrimination.”

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But on that basis, Trump directed all federal agencies to: 1) limit the entire firm’sengagement with federal employees; 2) limit the entire firm’s access to federal buildings; 3) suspend the entire firm’s security clearances; 4) terminate the firm’s government contracts; and 5) require all government contractors to disclose any business that they do with Jenner—with an eye toward terminating those contracts as well.

Zealous advocacy on behalf of any client—even the president of the United States—has limits.

Four law firms have challenged Trump’s similar orders. In stark language, four separate federal courts have granted immediate relief:

“Disturbing”

“It sends little chills down my spine.”

“It threatens to significantly undermine our entire legal system and the ability of all people to access justice.”

“There is no doubt this retaliatory action chills speech and legal advocacy, or that it qualifies as a constitutional harm.”

“The framers of our Constitution would see this as a shocking abuse of power.”

In three recent hearings, Deputy Associate Attorney General Richard Lawson—Bondi’s longtime Florida colleague and Trump loyalist—struggled to answer judges’ basic questions about the orders targeting Perkins Coie, WilmerHale, and Jenner & Block:

Do law firms have to make deals with Trump to avoid executive orders?

“I can’t speak to that.”

Are the deals in writing?

“I have not been privy to this.”

Has Trump achieved $1 billion in deals yet?

“I do not know.”

When Lawson argued that Trump could target Jenner because it “discriminates against its employees based on race,” U.S. District Court Judge John Bates, an appointee of President George W. Bush, snapped back, “Give me a break.”

In fairness to Lawson, Trump and his White House attorneys who wrote the orders hadn’t given him much to work with.

Jenner: A Case Study

Take a closer look at Jenner’s claims, followed by selected highlights of the government’s 37-page response:

The First Amendment:

Prohibits retaliatory actions for protected speech and viewpoint discrimination;

Bars government interference with a client’s right to associate; and

Prevents the government from imposing unconstitutional conditions on access to government services and benefits.

The government says that Trump was just exercising his free speech rights. It asserts that Jenner’s lawsuit “carries with it a dangerous risk of muzzling the Executive.” The government also argues that Jenner’s speech is not protected insofar as it “consists of employment practices involving racial discrimination [favoring women and minorities].”*

The Fifth and Sixth Amendmentsguarantee a litigant the unfettered right to the effective assistance of counsel of his or her choice.

The government says that: 1) clients (not law firms) have to assert such claims; 2) any impact of barring Jenner from federal buildings or its clients from federal contracts is speculative; and 3) Trump’s order does not violate those rights in any event.*

Due Processis required before the government can deprive a person of liberty or property interests. It requires notice of the claims, clarity about their meaning, and the opportunity to be heard before the deprivation occurs. None of that occurred. The resulting harm, including damage to the firm’s reputation, was immediate and ongoing.

The government says that: 1) the order is sufficiently clear; 2) it has not yet harmed the firm; and 3) the firm will receive any required notice before the order actually injures it.*

Equal Protectionrequires the government to treat similarly-situated entities similarly or, at a minimum, have a rational basis for failing to do so.

The government insists that Jenner is not being singled out for unfair treatment.*

The Constitution’s Separation of Powersprohibits Trump from acting as accuser, prosecutor, judge, jury, and executioner. But he wore all of those hats in his executive order.

The government says that Trump’s order is an appropriate exercise of presidential power.*

Attention All Trump Lawyers: It’s Time for a Gut Check

Zealous advocacy on behalf of any client—even the president of the United States—has limits. Upon admission to the bar, every attorney swears an oath to defend the U.S. Constitution and to uphold the rule of law. A code of professional ethics requires any legal argument to be “warranted by existing law or by a nonfrivolous argument” for changing it. Attorneys must ensure that their statements about facts are “reasonably based” on evidentiary support.

Trump’s retaliatory orders seek to intimidate lawyers and law firms into submission and thereby undermine the legal system. His own conduct refutes his lawyers’ contrary arguments. As other firms have capitulated, pledged “political neutrality,” and collectively committed to provide almost $1 billion in free legal services to Trump-designated causes, his executive orders’ stated concerns about those firms’ “conduct detrimental to critical American interests” miraculously disappeared.

Trump even boasted, “And I agree they’ve done nothing wrong. But what the hell—they give me a lot of money, considering.”

In one of the many amicus briefs supporting Jenner’s challenge, more than 800 law firms—including Deputy Associate Attorney General Lawson’s former firm, Manatt, Phelps, & Phillips—urged that Trump’s executive order “should be permanently enjoined as a violation of core First, Fifth, and Sixth Amendment guarantees, as well as bedrock separation-of-powers principles.”

“But something even more fundamental is at stake… [Trump’s] Orders pose a grave threat to our system of constitutional governance and to the rule of law itself.”

I don’t know what Trump’s lawyers see when they look into a mirror. But I know this: History will not be kind to them.

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an 4 25

In an open letter published Wednesday, amid the Trump administration's unprecedented scrutiny on Big Law, multiple legal groups are calling on elite American law firms to convene and coordinate a unified response to U.S. President Donald Trump's "unconstitutional actions" and "threats to the rule of law and system of justice."

The legal groups include the coalition Lawyers Defending American Democracy (LDAD), the coalition Lawyers Allied Under Rule of Law, and the Steady State—which, according to the executive director of LDAD, "formed in the first Trump term as a loose association that maintained a low internet profile because many members were in government," but has "become much more organized and active" in response to the president's Department of Government Efficiency.

The groups drew a distinction between the several elite law firms who in recent weeks have negotiated deals with the Trump administration either in response to punishments imposed via executive order or to avoid the prospect of an executive order, and law firms who have resisted the Trump administration's pressure.

The law firms Perkins Coie, Jenner & Block, WilmerHale, and Susman Godfrey have all filed suits challenging Trump's executive orders targeting them. All four have won initial relief in court.

According to the letter, more than 800 other firms, including 17 firms on the Am Law 200—a ranking of top law firms based on gross revenue—have joined amicus briefs in defense of the firms that have sued.

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"Lawyers Defending American Democracy calls on the 170 undeclared Am Law 200 firms to avoid the path of those now notorious nine," the letter states.

"If you are one of these firms, you understand that the threatened executive edicts are not legal or enforceable. Rather, they are a tactic designed to enlist you in undermining the rule of law. Any concession by your prestigious firms only helps the administration intimidate the legal profession from challenging its actions," according to the legal groups.

The letter states that negotiating with the administration is futile in part because "there exists no reasonable terms for resolving this dispute."

The letter also points to the fact that all four courts that have heard the cases from firms challenging Trump "have held that the likelihood of these law firms succeeding on the merits is so great that they have taken the extraordinary step of issuing temporary restraining orders against the government’s enforcement." This is evidence, according to the letter, that negotiation is unnecessary.

"If you band together and agree to support one another, the White House strategy will collapse," the letter states. "These threats reveal the administration's own fear. They don't want you in court where they will lose. They are afraid to find out what happens if you and other firms stand together as a profession."

"We must fight because if lawyers don't stand up for the rule of law, who will? If we don't fight for the principles that we have devoted our professional lives to—and that make us a free society—those principles will be forever compromised," the letter concludes.

According to a statement from LDAD, the legal groups behind the letter collectively represent over 1,000 lawyers who who have worked as senior partners, judges, state attorneys general, senior officials at the U.S. Department of Justice, as general counsel for major companies, and state bar presidents.

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Trump-allied group wants J6 committee staffers blacklisted - POLITICO

2/23/2023

A conservative non-profit group allied with former President Donald Trump urged “Hill staffers and their colleagues” to cut off meetings with any former Jan. 6 committee staffers who have since joined firms that lobby.

In a letter sent to hundreds of recipients on the Hill, the dark money group American Accountability Foundation listed the names of the former committee staffers and their titles — along with their new employers and links to their firms’ clients — all of whom they urged to blacklist.

“AAF has put together a cheat-sheet below outlining their new firms and the firm’s clients so you can be sure you (and your staff) aren’t inadvertently taking a meeting with a company that hires staff that hates your boss,” says the memo sent by Thomas Jones, the group’s president and founder. In his letter, Jones noted recent reporting by POLITICO on the January 6 committee staffers being hired by law and lobbying shops.

“It is important to remember that even if one of these former J6 investigators is not listed as a lobbyist on this specific account, the billings brought in by the clients listed below benefit all staff at the J6 investigator’s new firm,” he added.

It remains to be seen how effective the gambit will be, as the letter was sent only this past Wednesday. K Street firms have a major presence on Capitol Hill and their hires include figures on all sides of the political spectrum. But the group’s play illustrates the intense desire that exists among some conservatives to exact political retribution for those staffers who helped unearth extraordinary evidence of Donald Trump’s bid to subvert the 2020 election.

Jones confirmed the authenticity of the memo in an email to POLITICO. He railed against the January 6 committee’s use of investigative power, claiming that the committee and the F.B.I. forced some to “spend tens — sometimes hundreds — of thousands of dollars defending themselves from an overreaching and weaponized government.” He argued that conservatives should not be taking meetings with these lobbyists’ clients.

“My email was just a short list of people and companies they should stop working with,” he said.

“Until conservatives are willing to fight back against the swamp — in this case cutting off the lifeblood of lobbyist access — the swamp will never be drained,” he contended.

:{Among those listed on the memo include Casey Lucier, former investigative counsel for the committee, who was hired at McGuireWoods, a firm that represents Hertz Global, Perdue Foods, Sinclair Broadcast Group, and others.

:{Other names listed were Kevin Elliker, another former investigative counsel, who was hired by Hunton Andrews Kurth. That firm represents Koch Companies Public Sector, NCTA – The Internet & Television Association, and Southern Company Services.

Former committee staffers Marcus Childress, Heather Connelly, and Michelle Kallen had all been hired by Jenner & Block, the email noted, which represents T-Mobile and the Cherokee Nation of Oklahoma.

In his message, Jones also noted that the memo’s recipients were free to send over additional names.

Led by Jones, an alumnus of Sen. Ted Cruz’s (R-Tex.) presidential campaign, and Matt Buckham, a veteran of the Trump White House, the American Accountability Foundation has taken on controversial tactics to undermine Biden’s nominees. The New Yorker reported links between the American Accountability Foundation and the Conservative Partnership Institute, which has been affiliated with former White House chief of staff Mark Meadows and attorney Cleta Mitchell. Notably, Meadows’ attorney George Terwilliger works for McGuireWoods, one of the firms listed in the memo.

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