Walter Olson
President Donald Trump has now made clear that his attack on the independence of the bar is not going to stop with Covington & Burling. His latest escalation was a sinister if absurd vengeance decree (executive order) last week against the law firm Perkins Coie. Yesterday, Perkins struck back with a complaint and memorandum of law in support of a temporary restraining order in federal court.
The cause of these law firms is the cause of an independent bar that’s free, willing, and able to represent clients vigorously against the federal government, its officials, and powerful candidates. That should make it everyone’s cause, especially for those of us who cherish liberty, limited government, and the rule of law.
As background: Perkins Coie, the largest law firm in the Pacific Northwest, is a so-called full-service law firm with more than 1,000 lawyers. Full-service means that it represents corporate clients, small businesses, nonprofits, and families across a wide range of legal needs, including advisory work, litigation, and representation before government agencies.
For some years, Perkins Coie also maintained a famous political law/elections practice that represented Democratic Party interests and Hillary Clinton and acted adversely toward Trump in 2016 and 2020. Most of this section, which even at its height represented a small fraction of the firm’s overall business, split off a few years ago into an independent legal practice associated with attorney Marc Elias.
In other words, the lawyers Trump is mad at haven’t been part of the firm for several years. The actions the executive order is most steamed about, relating to the Fusion GPS/Steele “dossier” affair, took place in 2016. Trump in his first term was sufficiently capable of keeping things in perspective that in 2018 he appointed two Perkins Coie lawyers to federal judgeships. (As with other BigLaw firms, Perkins has plenty of Republican and independent lawyers, and the great majority of its work now and then does not read as “political” at all.)
The executive order accuses Perkins of assorted misconduct and even criminality in representing Clinton and Democrats but fails to mention that Trump and his allies already leveled most of those accusations in court and met with almost complete rejection.
The penalties announced in the order included moving to strip Perkins Coie lawyers of security clearances, restricting its lawyers’ ability to enter or be present in federal buildings, and requiring agency heads to review the federal contracts of any company that has a client relationship with Perkins, even if that firm does not represent them on federal business.
These steps are aimed at destroying Perkins’s ability to continue operating. It is known for representing many leading technology firms, including Amazon, Google, Intel, Microsoft, and Meta, as well as Boeing, and could not do so without doing business before and at federal agencies. For example, it represents more than five hundred clients in more than 5,000 pending patent applications before the US Patent and Trademark Office.
In an interview with Fox News that aired over the weekend, Trump promised more, saying, “We have a lot of law firms that we’re going to be going after because they were very dishonest people.”
Last week’s order also bizarrely combines the sanctions against Perkins with an announcement of new probes targeting law firms’ hiring preferences and DEI generally, which might seem an odd jamming of two different things into one order other than for reminding law firms that they can expect enforcement trouble from a variety of directions if they prove uncooperative.
That message is getting through. At the New York Times “DealBook,” business reporter Andrew Ross Sorkin writes that his office “has heard that other law firms have started weighing whether working with some of the firms under fire, including Covington, could hurt clients with matters before government regulators.”
And the news-side Wall Street Journal reports (“Fear of Trump Has Elite Law Firms in Retreat”):
The White House moves have sent a chill through the world of Big Law, at a time when litigation has emerged as one of the few checks on the president.
In private conversations, partners at some of the nation’s leading firms have expressed outrage at the president’s actions. What they haven’t been willing to do is say so publicly. Back-channel efforts to persuade major law firms to sign public statements criticizing Trump’s actions thus far have foundered, in part because of retaliation fears, people familiar with the matter said.
Advocacy groups and smaller law firms say it has been more difficult to recruit larger firms to help with cases against Trump, which now number more than 100. …
Trump’s inner circle has signaled it is paying close attention to which firms are taking the administration to court. Elon Musk reposted a story on X about lawsuits challenging the administration’s cuts to funding at the National Institutes of Health, asking, “Which law firms are pushing these anti-democratic cases to impede the will of the people?”
In many other countries that have lost their freedom, the rulers have made it an early order of business to intimidate, if not do away with the sectors of the bar that were willing to represent opposition and dissident clients and challenge government actions. It is alarming to see the United States moving rapidly down this path.