Through a series of executive orders targeting individual law firms by name, Donald Trump has brought the weight of the federal government down on several of the nation’s largest law firms, one at a time. While Trump’s objectives range from the laudable to the dubious to the vindictive, the weapons he has deployed are disproportionate overkill. They wield powers no one man in America should have. Right-of-center Americans will live to regret this innovation.
The biggest problem is the extraordinarily coercive tactics that Trump has deployed against private businesses. These include barring entire firms from federal courthouses and agency buildings and blacklisting even their most junior attorneys and staff from seeking federal jobs. Sanctions of this nature are designed to make it impossible for the firms to defend themselves. An administration that came to office decrying lawfare is all too willing to let the process be the punishment.
Trump’s grievances are varied. Pressuring firms to stop discriminating on the basis of race, gender, and sexuality — in short, dismantling the whole “diversity, equity, and inclusion” (DEI) complex — is both a noble cause and a vindication of federal law, properly understood. If Trump’s use of federal power against DEI causes a rethinking of federal intrusions, all the better; but we doubt it.
Targeting individual lawyers who participated in lawfare against Trump is personal, but there is at least a legitimate case for responding to the abuse of government power with individualized, proportional disciplinary actions such as the removal of security clearances of people who engaged in such abuses. Going after firms that hire such people, especially long after the individual lawyers have departed, is disproportionate collective punishment.
Punishing firms that represent Democrats and left-wing causes in activist litigation oversteps how government should respond to legitimate advocacy — even when it entails frivolous legal theories. John Eastman should not have been sanctioned for frivolous legal arguments, and neither should his counterparts on the left. Firms are rightly criticized for their lockstep ideological and partisan loyalties in the causes they represent and those to which they donate their time pro bono, but Americans have a right to associate in partisan and ideological groups; it is dangerous to get the government involved in policing those choices more than it already is.
We sympathize with the view that the big law firms — often under pressure from government and clients — have collectively created a climate of ideological groupthink that ill-serves their profession and provides zealous representation to enemies of our civilization while denying it to the democratic views of half the country. The causes of this run deeper than the firms, to the culture of law schools and the political infiltration of the legal and human resources departments of corporate America. Left-leaning pressure from the government should be withdrawn, and, ideally, the means of exercising it should be dismantled rather than just temporarily reoriented.
The settlements Trump has reached so far with firms that chose to avoid a confrontation suggest that his aims are more modest than his means. It is good to have firms professing that they will dismantle discriminatory hiring practices that have previously been openly celebrated. It is virtuous, if insincere, for firms to pledge to represent a broader array of causes. But such pledges run the dual risk of unenthusiastic lawyers who collude with their opponents or the stifling of the fundamental freedom of lawyers to choose their causes. Paul Clement, who has twice in his career courageously resigned rather than abandon his clients under external pressure, has stood up for this principle by defending firms against Trump’s onslaught, even when those firms never stuck up for him. More lawyers should aspire to his example.
Whatever the case for the government shifting the incentives it imposes on the private legal profession, the power to threaten a business with extinction should never lie in a single pair of hands. We should not wish to live under such a government run by our enemies; nobody should look past it simply because it is temporarily run by their friends.