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.”
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