'Surrender has a cost': Legal scholar slams lawyers’ 'utter capitulation' to Trump

26 March

During his second term as president, Donald Trump is trying to make life as difficult as possible for major law firms that have a history of representing his political foes. Trump, via executive order, attacked security clearances for Perkins Coie as well as Paul, Weiss, Rifkind, Wharton & Garrison (often abbreviated "Paul, Weiss").

Perkins Coie is suing the Trump Administration, while Paul, Weiss tried to make peace with Trump by agreeing to $40 million in pro bono work for causes President Trump supports.

In a scathing article published by The Atlantic on March 26, Paul Rosenzweig — a professor George Washington University Law School in Washington, D.C. and a former official for the U.S. Department of Homeland Security (DHS) — is vehemently critical of firms that are "capitulating" to his "attack on big law" and argues that capitulation only encourages egregious behavior.

"Few Americans will have much sympathy for lawyers whose annual income reaches seven figures," Rosenzweig explains. "But big law firms — especially those now under attack by the Trump Administration — do crucial work, representing nonprofits and individual clients who face major legal consequences, both civil and criminal, for resisting Donald Trump's assault on the rule of law. Without lawyers to represent them, those opposing Trump's policies will, in effect, be legally disarmed, allowing his authoritarian impulses to run rampant."

The firms that Trump is targeting, Rosenzweig notes, "have attempted to fight Trump and have represented clients Trump and his voters disapprove of."

"That is hardly a sin," Rosenzweig writes. "Representing an unpopular client is essential to any fair system. But Trump and his allies don't want a fair system; they want a system reminiscent of China's or Russia's, that scares lawyers away from these clients and disables their opponents from bringing legal challenges against their efforts to rule by executive fiat. Already, some firms are receding from the fight against Trump, declining to represent those who oppose him."

Rosenzweig applauds the attorneys who are standing up to Trump.

"Trump's actions are an attempt, bluntly speaking, to tilt the scales of justice by using the raw power of government coercion," the law professor argues. "Given the pervasiveness and seriousness of this threat, one might expect robust opposition from the American Bar Association, the voluntary national association of American lawyers, and law firms that have not yet been targeted. Some have stepped up. The ABA has been outspoken in its opposition, issuing repeated condemnations and calling for congressional action; in response, the (Trump) Administration has begun prohibiting federal attorneys from contact with the ABA and is threatening its funding and accreditation authority."

Rosenzweig adds, "Some law firms have responded boldly as well: After the first Trump EO was issued, the prominent Washington, D.C. practice Zuckerman Spaeder was not deterred from representing the U.S. Institute of Peace in its litigation against DOGE (the Department of Government Efficiency)…. But far too many firms have kept quiet. One can readily imagine why. Clients of these firms are panicked; large business interests are at stake, and firms are trying to avoid retaliation."

But Paul, Weiss, Rosenzweig laments, did the legal profession a huge disservice when it "caved."

"Rather than follow Perkins Coie and fight," the former DHS official observes, "it conceded to Trump, agreeing to end its DEI program…. Worst of all, it agreed to pay protection money, much like any good mob victim, promising to spend $40 million on pro bono legal services for causes that Trump supports. Brian Karp, the firm's managing partner, said in an e-mail to the firm's lawyers that Paul Weiss had little choice if it was going to survive…. It is difficult to see this as anything other than an utter capitulation by a large, well-heeled law firm putting financial success ahead of principle."

Rosenzweig continues, "Its remaining clients may well wonder at the limits of the firm's loyalty, and its partners will wonder at the stain on their reputation. Though the firm is, to be clear, a victim of Trump's assault, its abject surrender is a choice. And surrender has a cost."

Paul Rosenzweig's full article for The Atlantic is available at this link (subscription required).

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