Walter Olson
Lawyers in a free society must not be subjected to official punishment in retaliation for representing causes adverse to those in power. Nor should authorities apply coercive pressure to get them to brand as wrongdoers colleagues whom no court or bar authority has found to have committed misconduct. Nor should they come under coercive pressure to represent clients and causes favored by those authorities.
But all of that has just happened.
Paul, Weiss, Rifkind, Wharton, & Garrison is the third law firm that President Donald Trump has hit with peremptory and potentially annihilating penalties, following Covington & Burling and Perkins Coie. Those penalties include stripping security clearances from all lawyers with the firm and instructing that the firm’s lawyers not be allowed into federal buildings, as well as sanctions specific to government contractors, which include many large firms that use Paul, Weiss for one or another kind of legal work. Last night Trump announced that Paul, Weiss had agreed to make various concessions and that he was revoking the executive order.
It is not clear as of this writing whether Paul, Weiss has made all the commitments Donald Trump describes it as making. According to Trump’s statement, the law firm agreed, among other things, to direct $40 million in pro bono (unpaid) legal work toward causes and constituencies Trump sees as part of his current governing coalition. It’s possible that the law firm would have been glad to represent causes and constituencies on that list in any case. It’s also possible that Trump will be back to manage and steer the commitment. While it’s fair to criticize big law firms for some of the regrettable pro bono causes they take on—I’ve done so myself—the firms must be free to make those decisions themselves rather than have them dictated to them by the government.
Trump describes the firm as throwing under the bus attorney Mark Pomerantz, who opposed Trump in a New York criminal prosecution setting, but the firm itself does not seem to have spoken to that point, at least not yet.
What is clear is that Trump himself believes that his threats have caused a prominent law firm to back down on vital principles of independence and that he has used the powers of the presidency to gratify his wish for revenge against a particular lawyer for having fought him in court. This is calculated to chill and deter vigorous courtroom advocacy against Trump and his allies. It is an abuse of presidential power that imperils the constitutional rights of all Americans. We can only hope that other litigants, if not this one, will press federal courts for rulings speedily vindicating those constitutional rights.