Trump’s attack on law firms threatens the foundations of our justice system

Atticus Finch is remembered as one of literature’s greatest heroes for his willingness to defend an unpopular client despite great professional and personal cost. I was reminded of Atticus when the Trump administration recently retaliated against attorneys explicitly because they represented clients and causes the president dislikes.

On March 6, President Trump issued an executive order targeting a law firm, Perkins Coie, for activities that are protected by the First Amendment. The order cites the firm for “representing failed Presidential candidate Hillary Clinton” and commissioning opposition research into the Trump campaign. Trump also critiqued Perkins Coie for bringing a lawsuit to challenge election laws Trump supports, “including those requiring voter identification.”

This order came after the president revoked the security clearances of attorneys at another firm for representing a client the president dislikes: former Department of Justice Special Counsel Jack Smith, who had led the government’s investigations into Trump’s role on January 6 and his handling of classified documents.

In yet another order, Trump also singled out attorneys at a third firm, Paul Weiss, for bringing a lawsuit against individuals who protested at the Capitol on January 6, and for hiring an attorney who had investigated Trump while in government service. Trump’s orders against Perkins Coie and Paul Weiss not only barred federal agencies from engaging the firms’ services but also suspended the security clearances of its attorneys and restricted their access to federal buildings. These sanctions cripple the attorneys’ ability to represent clients in disputes with the federal government. The administration points to no evidence that these firms are a genuine security risk, and expressly targets these firms for their client selection and speech. 

This is deeply troubling regardless of where one stands on the activities or firms affected. The process of defending constitutional rights relies heavily on the ability of private attorneys to bring lawsuits against the government. This requires lawyers to be free from official government pressure when choosing which clients and causes to represent. If lawyers are put in fear of federal government retaliation for representing clients who challenge the government or stand for unpopular causes, many injustices will never be challenged. 

The administration’s actions represent a direct assault on this freedom. Punishing firms for their choice of clients or the nature of their legal work cannot help but intimidate the legal community, discouraging attorneys from taking on cases that may be politically unpopular or present a challenge to those in power. 

History is repeating itself with Trump’s latest efforts. What is at stake here is nothing less than the legal profession’s capacity to fulfill its role in a democratic society.

It also sets an ominous precedent for future presidents to exploit. If the Trump administration can target specific firms on this basis, what prevents future administrations from blacklisting firms that represent, say, gun-rights groups? This concern is hardly theoretical: just last year, the Supreme Court had to slap down a New York state official for trying to punish a third party for doing business with the NRA. Could religious organizations be next? Or animal-rights activists? Could the next Democratic president ban from federal buildings any attorneys that represented Republican candidates? What is the limiting principle?

Furthermore, how can a lawyer who is considering representing a politically controversial client know that she will not be targeted the next time control of the White House changes hands? The safest course of action will be to avoid representing clients of any political salience, right or left, even if their cause is just. 

Even before Trump’s latest actions on this front, a number of law firms have already shown their willingness to run from controversial causes, such as when Kirkland & Ellis withdrew from its representation of the NRA because the NRA advocates for gun rights. Supreme Court litigator Paul Clement, one of the firm’s most famous attorneys, had to leave the firm entirely simply so he could continue to represent his gun-related clients. Clement could afford to do this precisely because he was so well-known. But if the government can punish an entire law firm over the nature of the work of one of its attorneys, less influential attorneys will face enormous pressure from colleagues to avoid taking controversial cases and clients.

These actions also directly violate the First Amendment. They explicitly target these firms for the clients they have represented and the legal positions they have taken on election law matters. The Supreme Court has recognized the First Amendment right of lawyers “to associate for the purpose of assisting persons who seek legal redress for infringements of their constitutionally guaranteed and other rights.” By officially punishing lawyers on the basis of these associations, the executive order therefore is unconstitutional viewpoint-based retaliation and violates the right of freedom of association. For this reason, a federal judge this week issued a temporary restraining order blocking the order against Perkins Coie.

There is a long, troubling history of trying to silence advocacy through fear and intimidation of the advocates. Attorneys who fought for abolition and civil rights were frequently harassed, or even subjected to threats and violence such as when Thurgood Marshall barely escaped a lynch mob while arguing civil rights cases in the South before Brown v. Board of Education (1954). Many other civil rights attorneys, including those working for the NAACP, were investigated by the FBI, accused of communist sympathies, and faced professional blacklisting. More recently, government officials pressured the firms that represented Guantanamo Bay detainees in the 2000s to drop the cases.

History is repeating itself with Trump’s latest efforts. What is at stake here is nothing less than the legal profession’s capacity to fulfill its role in a democratic society. As the judge in Perkins Coie’s lawsuit warned, the administration’s decision “threatens to significantly undermine our entire legal system and the ability of all people to access justice.”

Public interest organizations like FIRE understand this principle well. Because we are committed to the nonpartisan defense of free speech, we are routinely accused of being “right-wing hacks” or “left-wing radicals,” often during the same week. But defending the rights of the unpopular is not about political allegiance — it’s about ensuring that fundamental freedoms apply to everyone. Civil rights groups must be able to defend speech and causes that challenge those in power, regardless of who holds office.

Atticus Finch understood how crucial vigorous representation is. In his impassioned speech to the jury, he explained, “In this country our courts are great levelers, and in our courts all men are created equal.” If lawyers fear retaliation for simply doing their jobs, then the courts can no longer serve as the “great levelers” as unpopular or politically powerless individuals and causes are unable to get their day in court. We’re all better off when even “bad people” can get a good lawyer — whoever those in power have deemed “bad people” today.