Trump Lawyers Behaving Badly

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.”

But on that basis, Trump directed all federal agencies to: 1) limit the entire firm’s engagement 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 Amendments guarantee 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 Process is 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 Protection requires 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 Powers prohibits 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.