ABA sues over Trump administration's intimidation of law firms and lawyers
The ABA filed a federal lawsuit on Monday to stop the Trump administration’s ongoing intimidation of lawyers and law firms.
In its complaint, the ABA asserted that President Donald Trump has, through the powers of the executive branch, coerced lawyers and law firms to abandon certain clients, causes and policy positions. According to the association, the president and his administration are carrying out its policy of intimidation through a series of actions, including several executive orders that aim to damage specific law firms and intimidate others, and several “deals” or “settlements” between the administration and law firms that hope to avoid these executive orders.
“The president’s attacks on law firms through the law firm orders are thus not isolated events, but one component of a broader, deliberate policy designed to intimidate and coerce law firms and lawyers to refrain from challenging the president or his administration in court, or from even speaking publicly in support of policies or causes that the president does not like,” the ABA said in its complaint.
The ABA filed the lawsuit against the U.S. government, more than two dozen federal departments and agencies, and the heads of those departments and agencies in the District of Columbia. It is asking the court to declare the Trump administration’s policy of intimidation against law firms and lawyers unconstitutional and to enjoin the government from enforcing the policy.
“This is the time to stand up, speak out and seek relief from our courts,” ABA President Bill Bay said in a news release on Monday. “There has never been a more urgent time for the ABA to defend its members, our profession and the rule of law itself.”
The ABA’s complaint outlines how Trump and his administration have adopted and continued to implement its policy of intimidation.
The association notes the president has made examples of certain law firms, such as Paul, Weiss, Rifkind, Wharton & Garrison. A March 14 executive order suspended security clearances held by people at the firm, restricted their access to government buildings, required government contractors to disclose whether they do business with the firm, and required agencies to take steps to terminate contracts with Paul Weiss or its clients.
After Paul, Weiss, Rifkind, Wharton & Garrison made a deal to rescind President Donald Trump’s executive order targeting the firm, a protest was held outside the firm’s New York City offices. (Photo by Melissa Bender/NurPhoto via the Associated Press)At the time, the Trump administration faulted Paul Weiss for bringing a pro bono suit against people who allegedly participated in events near the U.S. Capitol on Jan. 6, 2021. It also faulted the firm for hiring attorney Mark Pomerantz, who sought to build a criminal case against Trump when he worked at the Manhattan district attorney’s office in New York City.
But Trump announced a few days later that the executive order would be revoked because of a deal reached with the firm. Among its tenets, Paul Weiss agreed to dedicate $40 million in pro bono legal services to “support the administration’s initiatives.”
“In the end, the president was not simply punishing Paul Weiss; he was dragooning Paul Weiss into his service,” according to the ABA’s complaint. “Even more importantly, the president was sending a message in order to coerce Paul Weiss and other law firms into abandoning representations, speech and other conduct the president dislikes (such as immigration cases or diversity initiatives).”
Trump has issued four other law firm orders, including against Jenner & Block, Perkins Coie and Susman Godfrey.
The Trump administration entered into “settlements” with eight other top law firms that sought to avoid executive orders, the ABA noted.
“These ‘settlements’ are apparently not in writing or enforceable by the law firms, so the president can change his mind at any time and impose an executive order if the firms stray too far from the president’s wishes—thus maintaining the coercive effect of the policy even against ‘settling’ law firms,” the association said.
The ABA also said Trump’s policy of intimidation “is working as designed.” Despite federal judges finding the executive orders targeting law firms unconstitutional, law firms and their lawyers have withdrawn from certain pro bono work because it is “disfavored by the administration.” This includes lawsuits against the federal government.
“There has never been a more urgent time for the ABA to defend its members, our profession and the rule of law itself,” ABA President Bill Bay said in a press release. (Photo courtesy of Thompson Coburn)The ABA details how the president’s policy has harmed its own members. As an example, an equity partner at an AmLaw 50 firm was not permitted to participate in a pro bono matter at odds with the Trump administration’s immigration-related policies. The equity partner had previously performed similar work with no issues.
The ABA also notes it has forgone litigation against the Trump administration because it could not find counsel who were willing or able to do the work. This includes litigation challenging the termination of certain grants to the association on First Amendment grounds.
“The ABA was unable to obtain pro bono representation by any of the firms it contacted,” the association said. “Based on many firms’ prior willingness to represent the ABA in similar matters and discussions with lawyers at several of the firms, the ABA reasonably believes that many firms’ unwillingness to represent the ABA in the matter is a result of the firms’ reasonable fear of unlawful retaliation by the president.”
The ABA contends the Trump administration’s policy of law firm intimidation violates the First Amendment’s prohibition on suppression of and threatened retaliation for speech disfavored by the government. It also says the policy violates other provisions of the First Amendment, including its prohibition of viewpoint discrimination, right to petition the government and right to engage in private associations.
The Trump administration’s policy additionally violates the separation of powers, according to the ABA’s complaint.
“Our Constitution does not vest the executive branch with the power to point to individual lawyers or law firms, declare by executive fiat that their work or their internal policies are ‘against the national interest’ or otherwise illegal or improper, and direct (or threaten) executive action against that lawyer or law firm,” the ABA said. “Exercising such power—and threatening to do so—violates the First Amendment and purports to exercise power that the president does not have.”
The case, American Bar Association v. Executive Office of the President, et al., was filed by Susman Godfrey.
See also:
Data doesn’t support DOJ claims of bias in judicial ratings process, ABA President Bay says
DOJ restricts ABA’s access to vet and rate judicial nominees
ABA responds to DOJ cuts to grants supporting domestic violence, sexual assault survivors
ABA Center for Global Programs seeks to pivot, expand work in wake of USAID cuts
‘Our Finest Hour’: ABA ‘will not shrink from the things we believe in,’ President Bill Bay says
Trump order blocks public service loan forgiveness for employees of ‘activist organizations’
Some want to leave law firms with White House agreements, and others avoid firms that pushed back
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