Law firm leaders considering whether to “settle” or “cut a deal” with Trump are viewing the problem through the wrong lens. The question is whether to fight or submit.
Settlements are enforceable contracts in which each side gets something. But a law firm gets nothing in an unenforceable deal with Trump to make illegal threats go away. A firm that makes a deal in the face of patently unconstitutional threats, while receiving nothing in return, is simply choosing to bow down rather than fight. Choosing “settlement” in the face of an obviously unconstitutional and authoritarian executive order is a devastating capitulation.1
As others have explained, Trump is targeting law firms one by one to send a highly visible signal to other institutions so that he can assess whether they will stay quiet and capitulate.2 If they do, then he can keep picking off law firms, one by one, diminishing their capacity for collective response. If many law firms give in or stay silent, he would eventually create and normalize conditions under which major law firms cannot represent clients who sue him or oppose him. And if the best and largest law firms are unable or unwilling to challenge unlawful orders, who will?
Every law firm of consequence will be forced to decide whether it stands with Perkins Coie, Jenner, and WilmerHale. Every law firm that stands up will make it easier for others to do so. Every law firm that stands down will make it harder. It might seem like empowering an autocrat, just a little, is an acceptable outcome if the firm staves off a threat to its bottom line. But making a “deal” with Trump does not offer any genuine protection and compromising principle for the sake of money is unjustifiable.
Some argue that appeasing Trump is justifiable. I was disappointed to read an article by my former ethics professor, Stephen Gillers, opining that critics should not fault Paul Weiss for making a “deal” so it could “survive.”3 The gist of his article is that the vague terms of the deal don’t require Paul Weiss to do anything it wasn’t going to do anyway. He also contends that firms should prioritize their own survival over considerations such as defending democracy and the rule of law. As he put it, “Democracy and the rule of law will have to find their savior in the same political process that led to our present dilemma.” To my mind, both of his propositions are profoundly misguided.
The vagueness of the Paul Weiss-Trump arrangement is a reason why it hands coercive control over firm affairs to Trump, not a reason that Paul Weiss and its lawyers can shrug it off. Maybe it’s just a PR piece for both sides. But that seems unlikely. The sword of the executive order still hangs over head and Trump can always ask for something more under the vague terms of their arrangement. As many have noted, they don’t really agree on what the terms are anyway.4
Even worse is the idea that firms should wait for the next election before thinking about democracy again. This assertion blithely disregards how autocrats consolidate power to make elections unnecessary or unwinnable. Professor Gillers writes:
There is a suggestion in the current debate that Paul Weiss was obligated to be brave for the rest of us, that it was required to fight Trump on behalf of the rule of law, and that its settlement was somehow a betrayal of some principle governing the conduct of private law firms. That is not so.
This is wrong. Notice that Gillers is not arguing that Trump’s executive order targeting Paul Weiss was legal or proper; that would be absurd. He is simply offering a high-flown version of “run away and live to fight another day.” But it is far too soon for running away. Right now, all of us are obligated to be brave.
It would be one thing if Trump was rounding up lawyers and torturing or killing them. But he isn’t doing that, so opposing him doesn’t require as much bravery as, say, joining the army in Ukraine. Standing up for the rule of law ought to be the highest principle that governs a law firm. If law firms surrender to Trump, they will communicate to the broader world that might makes right and that, in the end, is the code they have chosen to live by. Their shameful submission will lead others to submit, too.
Perhaps Paul Weiss did not envision that Trump would humiliate the firm by changing the terms of whatever it was they thought they had done so soon after doing it. But really, what did they think was going to happen? The law firm’s arrangement with Trump is entirely one-sided. Trumps gets everything, Paul Weiss gets nothing. Trump can, at any time, call Paul Weiss and tell them not to take a case or instruct them to accept a pro bono representation. If they protest, he can reinstate the executive order on the ground that the firm has violated their agreement. They might as well start copying Stephen Miller on their conflict checks.
Paul Weiss also has apparently agreed to let Trump speak on its behalf or, in what may be a distinction without a difference, the firm is powerless to contradict him when he does. Trump says that Paul Weiss has “has acknowledged the wrongdoing of its former partner Mark Pomerantz.” I haven’t heard Paul Weiss say that, but I also can’t find any public statement from Paul Weiss contradicting the President’s statement. The firm is letting the public believe that the firm has acknowledged wrongdoing. That is an unconscionable choice because Pomerantz didn’t do anything wrong in working as a prosecutor in the Manhattan DA’s office, and even if he did, he wasn’t a Paul Weiss partner at the time. Trump should just say, “Paul Weiss totally agrees that anyone who prosecuted me is a criminal” and get it over with.
Fortunately, Perkins Coie, Jenner, and WilmerHale are fighting, leading, and standing up for the rule of law. In doing so, they are retaining their dignity, independence, and autonomy. So are Williams & Connolly, Cooley, and Clement & Murphy, who represent these firms in challenging Trump’s executive orders. They are telling the world that the rule of law and basic fairness are even more important than profit maximization. They knew this fight was essential and that they could never “settle” with someone who is offering nothing but a mafia-style protection racket.
This is a crisis. Now that it has fully arrived, law firm leaders should see clearly the entirely unwelcome choice that it forces upon them: a choice between fighting or submitting. And then they should choose to fight.
I borrowed this image from Timothy Snyder’s Substack. https://snyder.substack.com/about.
https://news.bloomberglaw.com/us-law-week/paul-weiss-cut-a-deal-with-trump-that-doesnt-mean-it-caved.
Trump says that Paul Weiss agreed that it “will not adopt, use, or pursue any DEI policies.” But the version of the agreement that Paul Weiss circulated to the firm contains no such commitment. Trump says that Paul Weiss will donate $40 million in services to support the “Administration’s initiatives.” Paul Weiss’s version of the statement does not say that it will support the “Administration’s initiatives” and instead lists initiatives that it will support. Given that the parties do not agree on material terms, no real “settlement” exists. Bob Bauer discusses these differences in his article about the Paul Weiss settlement:
