Despite reversal, DOJ is losing on law firms push
The Trump administration cannot even back down with dignity from its unconstitutional attacks on law firms.
After months of unsuccessful advocacy for Donald Trump’s far-fetched executive orders to punish prominent law firms that had worked with his perceived enemies, the Justice Department had apparently seen the light and told a federal appeals court that it would not pursue cases against Perkins Coie, WilmerHale, Jenner & Block and Susman Godfrey, all of whom had fought back and won.
But that moment of clarity only lasted about a day, as Justice reverse course and decided to withdraw its withdrawal and continue the appeals. This saga almost perfectly sums up the administration, which somehow manages to be both malicious and incompetent, very disorganized while still doing a lot of damage.
Who’s to say why the DOJ flip-flopped, but if we had to guess, we’d imagine that the career lawyers tasked with litigating this garbage decided there was no way to make this work, and then someone like Attorney General Pam Bondi or White House aide Stephen Miller ordered them to keep trying anyway.
Whatever the reason, the first group was certainly right. No court will hold that a presidential administration has the right to retaliate against law firms or individual attorneys based on the political affiliation or ideology of their clients. Trump may have succeeded in appointing an array of ideologically aligned judges, often deemed unqualified by the American Bar Association, including a few true believers like Matthew Kacsmaryk of Texas or Aileen Cannon of Florida, who are unlikely to ever rule meaningfully against him no matter what he does.
Yet the vast majority of judges, even conservative ones, even those appointed by Republican presidents including Trump, still believe in some semblance of the rule of law and constitutional guidelines like the First Amendment, and they resent the administration’s casual indifference to these fundamental principles.
Time and time again, these lawyers have thwarted the administration’s illegal actions, from tariffs to summary immigration detentions to attempts to withhold federal funds already allocated to blue cities and states. In reality, only the captured Supreme Court has given him immense room to maneuver, and some of that room to maneuver appears to be running out.
We applaud these law firms for choosing to fight even in the face of the frightening might of the federal government, and these judges for forcefully rejecting the administration’s demands.
The Justice Department’s efforts to continue defending these orders are doomed to an inevitable series of losses, which only makes the situation even more embarrassing for the law firms who have decided not to fight and have instead preemptively capitulated to the demands of a man who believes himself to be king. Chief among them is Paul Weiss, a giant company that has set a precedent as first to negotiate an agreement with Trump, leading, among other consequences, to an exodus of staff.
Even when this affair is over, even when Trump is no longer president and his authoritarian efforts have been checked by independent courts and a Congress that is slowly but surely growing, everyone will remember that these companies were created for Trump. This certainly won’t inspire much confidence in potential customers. As it becomes clearer that it is possible to stand up to Trump and win, and that capitulation has consequences, we hope more institutions will take notice.
