We should be ashamed

As lawyers, we should be ashamed of our profession. I have been a lawyer for a long time; I am in my forty-fifth year as a law professor. But never before have I felt ashamed of my profession. At a time when our democracy is facing its most serious threat of authoritarianism, it is imperative that lawyers act aggressively to enforce the rule of law. But instead, we are seeing so many of the most powerful in our profession cower.

It is not hyperbole to say that if there is a path towards authoritarianism in the United States, this is it. In less than 100 days, President Donald Trump has taken an astounding array of actions to consolidate power and stifle dissent. He has claimed the authority to deport and imprison those lawfully in the United States in a maximum-security prison in El Salvador. He has claimed the ability to eliminate federal agencies created by statute and to refuse to spend federal funds allocated by federal law. He has asserted the power to fire anyone who works in the executive branch, notwithstanding federal laws limiting removal. He has attempted to override the Constitution by eliminating birthright citizenship. He has withheld money from universities without following procedures mandated by law and without legal justification. He has violated the First Amendment by revoking visas solely because of the views expressed.

But what have the most powerful in the legal profession done about this?

We should be ashamed that so many law firms have capitulated to extortion rather than fighting back and challenging the illegal policies of the Trump administration. In a series of unprecedented and illegal executive orders, Trump has targeted law firms. He has been explicit that it is entirely for retribution. One of the first executive orders targeted was directed at the law firm Perkins Coie. It began, "The dishonest and dangerous activity of the law firm Perkins Coie LLP (Perkins Coie) has affected this country for decades." What was its offense? In 2016, it represented Hillary Clinton. Similarly, President Trump issued an executive order against the firm Jenner & Block. This executive order focused on one of the lawyers having worked as part of Robert Mueller's investigation of the 2016 election and in President Trump's words, "pursuing a political agenda against me."

There was an executive order targeting WilmerHale because it hired former special counsel Robert Mueller and two of his deputies after they completed their investigation into Russian interference in the 2016 election and possible obstruction of justice by Trump and his associates. No one alleges that Mueller and his team violated any law or ethical rule. Mueller retired from WilmerHale in 2021. But Trump's desire for retribution is so great that he is severely punishing the firm for its association with Mueller.

All three of these law firms fought back and federal courts issued orders stopping the executive orders from being implemented. If all of the law firms had done this, the Trump actions would have been stopped and ended. But that is not what happened. After there was an executive order targeting Paul Weiss, that firm settled with Trump, including promising to provide $40 million in pro bono work to causes Trump approves.

Following that, many of the largest and most prestigious law firms entered into anticipatory agreements with Trump:  Skadden Arps, Wilkie Farr & Galagher, Milbank, Kirkland & Ellis, Latham & Watkins, Simpson Thatcher & Bartlett, Cadwalader Wickersham & Taft. Altogether they now have pledged more than $1 billion in pro bono services to conservative causes.

This is extortion. Rather than challenge it, these large and tremendously profitable firms have given into a bully and further empowered him.

Notably, none of these firms are involved in litigation against Trump policies. Indeed, this seems to be exactly what Trump wants: to send a message that those who challenge his actions will be targeted.

We should be ashamed that none of the 20 largest and most profitable firms were willing to sign on to an amicus brief supporting the law firms that are challenging the Trump administration. Former Solicitor General Donald Verrilli, Jr. - now a lawyer at Munger, Tolles & Olson - wrote an amicus brief in support of Perkins Coie, in which he argued that the Trump administration's actions "pose a grave threat to our system of constitutional governance and the rule of law itself."

Five hundred and four law firms signed Verrilli's amicus brief. But not one of the 20 most profitable law firms in the United States were among them. That is shameful.

We should be ashamed that the deans of the most prestigious law schools would not sign a statement condemning Trump's actions targeting law firms. I saw this firsthand when I urged deans of law schools to sign on to a three-paragraph statement that concluded "We ...speak as legal educators, responsible for training the next generation of lawyers, in condemning any government efforts to punish lawyers or their firms based on the identity of their clients or for their zealous lawful and ethical advocacy."

Although there was not a remotely controversial word in the statement, only 79 of the 197 deans I approached signed it before it was released on March 26. Most notably, deans of many of the most prestigious law schools - Harvard, Yale, Stanford, Chicago, Penn, Virginia, Duke, Michigan, Columbia, NYU, Northwestern - did not sign. Of the "elite" law schools, only the deans of Cornell, Georgetown, and UCLA joined Berkeley in this statement. Deans of public universities in Florida, Nebraska, North Carolina, South Dakota, and Texas, where there could be real adverse consequences, signed the statement. But not the deans of the most powerful and prestigious law schools.

We should be ashamed that lawyers in the Trump administration, who take an oath to uphold the Constitution, are taking positions that are inimical to its very foundation. Perhaps worst of all, they have briefs claiming that the government can put human beings in a maximum-security prison in El Salvador, even by mistake, and no court can provide recourse. This is the power of a dictator to create a gulag, and it is an embarrassment to the profession that any lawyer would defend this.

What can change all of this? It is too naïve to believe that those who are so readily capitulating will find courage to fight back. And if things get worse, and there is every reason to expect they will, the pressure for silence will only grow.

But pressures can be put on these law firms and law schools to fight back. Clients can decide to abandon the law firms that are capitulating and take their business to the ones that are challenging Trump's illegal orders. Law students can shun the law firms that are bowing to Trump and look to work at the ones that are standing up for the rule of law. Prospective law students choosing among law schools can look at which ones are fighting back.

To be clear, hundreds of lawyers and law professors are speaking up. But not enough.

In Yiddish, the word "shonda" refers to something that is shameful. The capitulation to President Trump's illegality, the failure to challenge it, and the refusal by those who are silent to speak out, is truly a shonda. We should expect better from our profession.