“Efforts to delegitimize any representation for one side of a legal controversy are a profound threat to the rule of law.” So wrote superstar lawyer Paul Clement fourteen years ago when he resigned from the King & Spalding law firm over its cowardly decision to abandon its representation of the House of Representatives in its defense of the federal Defense of Marriage Act. Three years ago, Clement would resign from another BigLaw firm, Kirkland & Ellis, after the firm responded to his Supreme Court victory in a Second Amendment case by caving to pressure from other clients and announcing that it would no longer handle Second Amendment litigation.
Today Clement (whom I am proud to count as a friend) demonstrated his courage and integrity by standing up for BigLaw even though BigLaw didn’t have the courage and integrity to stand up for him. Clement has filed a complaint on behalf of the Wilmer Cutler law firm challenging President Trump’s executive order yesterday that seeks to punish Wilmer Cutler severely for hiring lawyers and representing causes that Trump objects to.
Yes, of course, Clement is surely being paid handsomely for his legal work on behalf of Wilmer Cutler. But the much easier (and perhaps even more profitable) course of action—one that many other big-name lawyers have surely taken—would be to lie low and avoid incurring the Administration’s wrath. And if you think that Clement took on this representation because of the fees he will receive, you don’t know the man I know.
Here are some passages from the complaint (some citations omitted):
1. “[T]he right to counsel is the foundation for our adversary system,” Martinez v. Ryan, 566 U.S. 1, 12 (2012), and the “courage” of attorneys who take on unpopular clients has long “made lawyerdom proud,” Sacher v. United States, 343 U.S. 1, 4 (1952). John Adams famously embodied these principles by defending eight British soldiers in the “Boston Massacre” trial, an effort he described as “one of the best pieces of service I ever rendered my country.” And British monarchs’ practice of punishing attorneys “whose greatest crime was to dare to defend unpopular causes”—which threatened to reduce lawyers to “parrots of the views of whatever group wields governmental power at the moment”—helped inspire the Bill of Rights. Cohen v. Hurley, 366 U.S. 117, 138-40 (1961) (Black, J., dissenting). It is thus a core principle of our legal system that “one should not be penalized for merely defending or prosecuting a lawsuit.” F. D. Rich Co. v. United States ex rel. Indus. Lumber Co., 417 U.S. 116, 129 (1974).
2. In an unprecedented assault on that bedrock principle, the President has issued multiple executive orders in recent weeks targeting law firms and their employees as an undisguised form of retaliation for representing clients and causes he disfavors or employing lawyers he dislikes. These “personal vendetta[s]” are so facially improper that the first court to address the merits of one of these orders concluded that it likely violates multiple foundational safeguards enshrined in the Bill of Rights….
4. The Order’s declared purpose is to retaliate against WilmerHale—and certain of its clients—for WilmerHale attorneys’ constitutionally protected advocacy in matters that President Trump perceives to be adverse to his personal and/or political interests. Among other things, the Order accuses WilmerHale of “abus[ing] its pro bono practice,” specifically referencing the Firm’s election- and immigration-related litigation and its defense of race-based college admission policies. Order §1. The Order also singles out retired WilmerHale partners Robert Mueller and James Quarles and current partner Aaron Zebley because of their involvement in the Department of Justice’s investigation into allegations of Russian interference in the 2016 presidential election, in which Mr. Mueller served as Special Counsel.
5. While most litigation requires discovery to unearth retaliatory motive, the Order makes no secret of its intent to punish WilmerHale for its past and current representations of clients before the Nation’s courts and for its perceived connection to the views that Mr. Mueller expressed as Special Counsel….
12. The President’s sweeping attack on WilmerHale (and other firms) is unprecedented and unconstitutional. The First Amendment protects the rights of WilmerHale, its employees, and its clients to speak freely, petition the courts and other government institutions, and associate with the counsel of their choice without facing retaliation and discrimination by federal officials. Indeed, the Supreme Court recently reaffirmed the bedrock law that the government may neither “use the power of the State to punish or suppress disfavored expression” nor “attempt to coerce private parties in order to” accomplish those forbidden ends. Nat’l Rifle Ass’n of Am. v. Vullo, 602 U.S. 175, 180, 188 (2024).
13. The Order also violates the separation of powers twice over. The President’s role is to enforce the law—not to create new law or adjudicate litigation conduct before the courts— and no statute or constitutional provision empowers him to unilaterally sanction WilmerHale in this manner. That is unsurprising; any legislative effort to restrict lawyers’ access to government buildings, services, and materials just for representing disfavored clients or causes would be patently unconstitutional. And any executive-branch effort to deter private attorneys from representing particular clients or advancing particular arguments “threatens severe impairment of the judicial function,” as courts depend on attorneys to “present all … reasonable and well-grounded arguments” on their clients’ behalf. Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 545- 46 (2001).
14. On top of that, the Order flagrantly violates due process. It imposes severe consequences without notice or any opportunity to be heard; it uses vague, expansive language that does not adequately inform WilmerHale (or its clients) of what conduct triggered these extraordinary sanctions; and it unfairly singles out WilmerHale based on its perceived connections to disfavored individuals and causes.
I’m certainly no admirer of BigLaw, and I very much regret that it has become so ideologically one-sided. But I agree with the complaint that the president’s attack on Wilmer Hale is far outside the bounds of what the Constitution allows.