In Donald Trump’s apparent war against America’s legal system, there is one big gun that could unleash a powerful fight back, a law professor argued Tuesday.
And it’s doing nothing but sitting quietly on the sidelines.
Deborah Pearlstein, the director of Princeton University’s Program in Law and Public Policy, wrote that individual judges and lawyers have shown spirit, pushing back as Trump purges the Department of Justice, overhauls law school curriculums and even signals that he could defy court orders.
But she wrote in the New York Times, “Of all of the American legal institutions now facing sustained attack, none would seem better positioned to push back against Mr. Trump’s strongman tactics than this class of wealthy and politically connected firms, known collectively as Big Law.
“Counsel to the world’s most powerful corporations, they are engaged in every sector of the marketplace and central to ensuring that the United States and global economy continue to spin.
“Yet where many ordinary judges, law school deans and public interest attorneys of both political parties have found the courage to push back against Mr. Trump’s anti-constitutional histrionics, Big Law has largely stayed silent or worse.”
In the headline of her piece, Pearlstein hit the directors of the powerful companies for “acting like cowards.”
The problem, she said, is each of the big firms has an “incentive to keep quiet, but if everyone stays quiet, all will lose.”
One such firm, she wrote, is Covington & Burling, which did pro bono work for special counsel Jack Smith, who prosecuted Trump.
When Trump retaliated by cutting security clearance for the firm’s lawyers, “The firm has had virtually nothing to say in response,” Pearlstein wrote.
Another firm, Perkins Coie, has been quiet after Trump ordered a review of its federal contract while barring lawyers from federal buildings. The firm had represented Hillary Clinton.
“Most stunning of all, Paul, Weiss, one of the most venerable firms in the world, elected last week to strike a deal with Mr. Trump, agreeing, among other things, to contribute tens of millions of dollars worth of pro bono services to some of the president’s favored causes,” the law professor wrote.
"The firm’s chair later explained it did so because clients were getting spooked and other firms — rather than rallying to Paul, Weiss’s defense — began ‘aggressively soliciting our clients and recruiting our attorneys.’”
“The choice by these firms to accommodate Mr. Trump’s attacks, either through action or silence, is deeply wrong,” wrote Pearlstein.
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She went on, “Mr. Trump’s tactics against Big Law and other legal institutions seem clearly aimed at demonstrating there is no law but whatever deal the president is personally willing to strike, indeed no law but Trump.
“ … It’s not hard to see why these firms may have decided to cede to Mr. Trump’s power grab. Partners have fiduciary obligations to their peers and employees. If the firm can just avoid open antagonism of the governing regime, the thinking may go, then it will survive until the turbulence subsides.
“ …The point is for Big Law to do something — anything — as a group to demonstrate that they will continue to place their obligations to their clients and to the law above their fear of the bully. Solidarity can prove that point. And it can shore up the hope we all retain that the world’s strongest economy and oldest democracy will not both, simultaneously, fall.
“The excuses made for Big Law’s silence are of course not limited to Big Law. The same collective action problem no doubt informs the discussions taking place inside the corner offices of the firms’ corporate clients, in the boardrooms of major media enterprises, at the gatherings of university trustees. The solutions to such problems are limited. But one tried and true approach remains clear: joining forces to fight back.”