What The Hell America!

FRESH FROM HIS VICTORY LAST WEEK bringing the law firm of Paul Weiss to kiss the ring of autocracy, President Donald Trump on Saturday issued an unprecedented memo directing the attorney general and secretary of homeland security to take a series of actions to penalize what he called “abuses of the legal system and the federal court [sic].”

Although it might appear that the new edict, with its accusations and threats, is an attack on the independence of lawyers, law firms, and the legal profession writ large, in fact its real target is any person or entity in the country who wants to vindicate their rights in court. It’s a fundamental assault on the rule of law.

The memo uses the approach we have come to recognize as typical of this White House: halt all legal actions that would hold the president and those who support him accountable. And as usual, Trump’s words of attack on lawyers simply mirror his own intent.

He directs that offenders be held accountable for “grossly unethical misconduct,” and calls out “frivolous, unreasonable, and vexatious litigation against the United States or in matters before executive departments and agencies.”

Remember that for a president who demands loyalty to the point of subservience, any legal challenge is, by definition, unreasonable. And, proving that litigation is frivolous is a heavy lift before any court or disciplinary body.

The memo singles out anti-Trump lawyer Marc Elias, the lawyer who coordinated the nationwide response to the Trump campaign’s effort to contest the 2020 election results, as an example of “grossly unethical misconduct.” Trump’s obsession with Elias runs so deep that it was also exposed in Trump’s disturbing and deeply inappropriate March 14 speech at the Department of Justice.

Ominously, the memo also attacks immigration lawyers and large law firms that provide pro bono immigration support. With no appreciation for the irony, Trump castigates those who seek the constitutional right of due process for his rushed deportations by claiming, “Gathering the necessary information to refute these fraudulent claims imposes an enormous burden on the Federal Government.” It is precisely because of this attitude—and because of the cruel and possibly illegal actions that Trump and his deportation czar Tom Homan have taken—that due process must be insisted upon.

In the wake of Federal District Court Judge James Boasberg’s incisive scrutiny of the administration’s alleged failure to obey a court order last week, it is clear that the White House wants to create the presumption that arguing against it in court is unethical and illegitimate—and will mean punishment.

In another self-tell about the president’s own patterns of behavior, the memo implicitly threatens law partners who fail to ensure that their junior attorneys do not also engage in “frivolous, unreasonable, and vexatious” litigation. The administration seeks to chill the legal profession’s independence to such an extent that law firms will spend their time squabbling among themselves instead of defending justice and the rule of law in the courts.

IN THE MEMO’S MOST EXTRAORDINARY MOVE, Trump directs Attorney General Pam Bondi “to review conduct by attorneys or their law firms in litigation against the Federal Government over the last 8 years.” Bypassing court adjudication, the president imbues the attorney general with enormous power to recommend when the president should reassess security clearances and terminate any federal contracts that a lawyer or law firm that steps out of line holds with the federal government—the tactics that brought Paul Weiss to heel, and that the law firm of Perkins Coie is now fighting.

Again, note that that provision does not apply only to law firms’ future actions; it applies to actions brought long before the memo was issued.

This language demonstrates the folly of the Paul Weiss decision to accept onerous terms in exchange for a rescission of the executive order targeting it. In years that fall within the president’s review period, Paul Weiss has represented clients against the Trump administration several times.

Does anyone at the firm truly think the decision to capitulate last week inoculates them against the terms of this latest edict?

IF PRESIDENT TRUMP IS SUCCESSFUL in his campaign of terror against the law, he will turn the justice system into a blunt instrument of autocratic rule, depriving everyone in this country their own constitutional rights. For there cannot be an independent legal profession if lawyers are too afraid to represent clients in claims against the federal government or the ruling party for fear of their retribution. More importantly, there cannot be democracy where lawyers are punished and lambasted simply for engaging with the justice system in representing clients opposed to the present administration.

It is in this way that the memo is not just a threat to lawyers; it is an indirect attack on the rights of every American.

If lawyers are to be punished for representing clients and causes at odds with the administration, or for even being associated with other lawyers or law firms who have done so, we will no longer have a justice system. We will simply have the will of the ruler.

The final—again ironic—paragraph of the memo notes, “Law firms and individual attorneys have a great power, and obligation, to serve the rule of law, justice, and order.” Indeed, they do. But while the president may say those words, but his own threats make the words meaningless.

In this fight, Americans must join in the defense of lawyers to ensure everyone has a defense in the future. Because if lawyers are too afraid to stand up in court and represent their clients with vigor and forthrightness, we will all pay the price.