CNN
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In recent weeks, some of America’s most powerful law firms have faced a defining choice: do a deal with the White House, or prepare to fight severe restrictions President Donald Trump has placed on firms and lawyers he opposes politically.
Facing potentially ruinous sanctions from Trump because of past or current work he opposes, two high-profile firms cut deals with the White House, fueling fears in some portions of the industry that Big Law would cave to Trump’s tactics, upending how large firms have done business for decades in Washington.
But Friday morning, Jenner & Block, and WilmerHale, two large firms built around litigation and Washington contacts, sued the administration to challenge Trump executive orders targeting them and their clients. The firms accused the government of using unconstitutional executive orders to punish or chill speech it doesn’t like.
The development was an encouraging shift for many lawyers agitating for the industry to stand up cohesively for the rule of law. The staying power of the pushback on Trump remains uncertain. Even if Trump’s orders are found unconstitutional, some lawyers fear damage to their business is already done because new clients may avoid firms that Trump has a grudge against.
While some smaller firms have spoken out against the president’s orders, and even among conservatives the orders have raised constitutional concerns, many big firms have stayed silent hoping to avoid Trump’s wrath.
Two separate judges later Friday issued temporary orders blocking parts of the Trump executive orders against the Jenner, and Wilmer firms, citing likely First Amendment violations. They join a third judge who blocked an earlier executive order against the firm Perkins Coie, which is challenging a similar order targeting it.
Trump has made clear in the language used in preambles of his executive orders that he is settling scores with political opponents. Both Jenner and Wilmer have connections to former special counsel Robert Mueller, who led the Russia investigation into Trump’s 2016 presidential campaign.
Reflecting the disquiet among both Democratic and Republican lawyers, a prominent conservative attorney, Paul Clement, responded within hours of Trump’s executive order against WilmerHale, with a 63-page lawsuit filed in federal court in Washington Friday morning.
“This lawsuit is absolutely critical to vindicating the First Amendment, our adversarial system of justice, and the rule of law,” Clement, who runs his own small litigation firm, said in a statement after filing the case for Wilmer.
The firm also got assurances that some of its larger clients would stick with the firm if it chose to fight, another source told CNN.
Many of the firms had been preparing for weeks on how to respond to Trump’s executive orders, discussing with their own partnerships and with leaders at other firms what they could do. The ultimate decision on whether or not to sue largely depended on how law firms’ corporate clients might respond, several sources familiar with the legal industry told CNN.
So far, Trump has placed restrictions on five firms: Perkins Coie; Jenner & Block; Covington & Burling; Paul, Weiss, Wharton, Rifkin & Garrison, and WilmerHale. Trump also signed a broad order seeking to punish immigration law firms, and firms lawyers who the government deems as filing nuisance lawsuits
Paul Weiss reached a deal with Trump to rescind the order against the firm. Another firm, Skadden Arps Slate Meagher & Flom reached an agreement Friday with the White House before it could even be targeted.
Since the executive orders first started a month ago, many firms have had a flurry of calls with business consultants and their clients over the best path forward and as Trump’s war with the industry escalated quickly, the sources said.
“It’s only nine weeks” since Trump took office, said one attorney. “Everyone knew he would go on a vendetta tour. No one predicted this,’ the lawyer said, adding. “Who knows what the next move is.”
WilmerHale had already developed a plan to respond, a person familiar with the situation told CNN. The firm had been in contact with the White House’s legal counsel and with policy-focused officials to try to sway the administration from targeting it, the source said.
Wilmer knew it could face restrictions like those that were ordered Thursday night, blocking federal agencies from letting its lawyers in their buildings, stopping hiring of alumni of the firm and potentially retaliating against businesses with government contracts that have hired the firm as defense counsel.
Another flashpoint was Mueller, a former FBI director and war veteran, who is revered within Wilmer. Firm leaders witnessed how Trump tried to undercut the legacy of a former respected long-time partner at Paul, Weiss, Wharton, Rifkind & Garrison, when they cut a deal with the White House, sources said.
Trump announced that deal by saying Paul Weiss’ chair “acknowledged the wrongdoing” by its former partner Mark Pomerantz, who left the firm to work on the Manhattan district attorney’s criminal investigation into Trump, but the firm chair Brad Karp made no mention of this in announcing the firm’s deal to his partnership. Paul Weiss, too, explored challenging Trump’s executive order in court before cutting the deal with the White House to settle, Karp had said.
“But it became clear that, even if we were successful in initially enjoining the executive order in litigation, it would not solve the fundamental problem, which was that clients perceived our firm as being persona non grata with the Administration,” Karp wrote to the partnership last Sunday, according to an email obtained by CNN.
Before Friday, much of the legal establishment was fearful of which firm might be next, with several large firms unwilling to put themselves in the public spotlight or in court.
The New York-based Skadden Arps separately agreed to provide $100 million in pro bono legal work, to hold off any federal restrictions the White House might try to place against it. The administration had previously inquired with that firm and several others about diversity practices through the federal Equal Employment Opportunity Commission.
“This was essentially a settlement,” Trump said from the Oval office Friday about Skadden. Trump said earlier this week the firms were bending to him.
In a statement Friday, Skadden’s executive partner Jeremy London said the firm now “looks forward to continuing our productive relationship with President Trump and his Administration.”
In an email sent firmwide and reviewed by CNN, London acknowledged “this development and other recent events have been extraordinarily difficult.” He said they did the deal because “when faced with the alternatives it became clear that it was the best path to protect our clients, our people, and our Firm.” London called it an “acceptable outcome” to ensure Skadden would “thrive” in the future while acknowledging not everyone would agree.
Before Skadden made the deal, a group of alumni members of a program that trains public interest lawyers wrote a letter to the firm’s leadership urging them “to take every measure to resist unlawful interference with the rule of law, to fight any unjust actions that may be taken by the Government against the firm, and to speak publicly about the critical, nonpartisan role of lawyers in defending democracy.”
Working with the administration is not what other firms are choosing to do, especially since several large firms are already behind lawsuits challenging Trump efforts to curtail federal spending and change social policy in the US.
Jenner, which is currently involved in cases against Trump’s health research cuts and climate project rollbacks, had serious discussions with its partnership — including at least one firm meeting about what to do in recent days, a person familiar with the firm’s lawsuit, told CNN.
The firm also discussed with its clients how to respond, including by taking the public stance of suing, the person added.
For some of the major law firms, the most worrisome part of the White House crackdown has been the EEOC investigations and its effect on clients, which prompted multiple firms to reach out to the White House seeking to find an accommodation, according to people briefed on the discussions.
The EEOC investigation raises the prospect that firms would have to turn over not only information about their associates and the hiring practices for new attorneys, but potentially client data, which the firms and clients don’t want the government to have, according to the sources.
People briefed on the matter say that the White House is winding down its efforts to issue executive orders against firms, with a small number still in the works and expected to be signed by the president in the coming days.
Many in the legal industry still are harshly criticizing the willingness of law firms to make concessions to Trump. And prominent attorneys, Democratic state attorneys general, bar associations and even alumni of some of the firms have called on the legal industry to stand up against the orders.
“The only way through this attack on the very foundations of our legal system is by fighting back,” longtime civil rights attorney Vanita Gupta, who served as the No. 3 lawyer at the Justice Department during the Biden administration, told CNN on Friday. “If firms want to be trusted to fight the biggest fights, they must not cave to blatantly unconstitutional government actions.”
In some ways, legal industry sources say, the approaches of each firm have been in line with the type of primary business done by each partnership.
For instance, Perkins Coie has long been a public foe of Trump’s and was the first to go to court against the administration over one of the law firm executive orders.
And Trump’s restrictions on Jenner & Block, for instance, could have decimated nearly half of its business, because of its large amount of work for government contractors. Wilmer Hale, similarly, often wins business because it is one of the most well-connected firms among Washington insiders, from both political parties.
