The Volokh Conspiracy

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Next Up: Jenner and Block

Are you getting the message yet? Kiss the ring! And throw in some cash while you're at it. Or Our Leader will destroy you. Do not cross him - he has the entirety of the executive power of the United States at his disposal.

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Given that the VC is a blog that is heavily focused on the law and the legal profession in all of its various manifestations, I think it is incumbent upon us to at least pay a little bit of attention to the Trump Administration's continuing attacks on lawyers and judges, if only to ensure that our silence is not construed as capitulation.  So no, I'm not going to let it go - no one's forcing you to read anything I write. 

The punishment that was meted out to Paul Weiss last week for having "hired unethical attorney Mark Pomerantz [who] according to his coworkers, unethically led witnesses in ways designed to implicate President Trump" while at the Manhattan DA's office has been rescinded! The Executive Order has been withdrawn! All it took, apparently, was $40 million in pro bono legal assistance for Trump-endorsed causes - cheap!!

Of course, the money was never the point (though I am surprised Trump couldn't extort a few million more; I bet Paul Weiss would have paid another $50 million for, say, a statue of Trump somewhere, or a nice fat contribution to the DJT Family Foundation).  The point is obedience, about sending the message: "I can crush you, big powerful law firm, like a bug, so don't fuck with me." Mission accomplished.

Brad Karp, Managing Partner at Paul Weiss, sent an email to firm personnel explaining the settlement:

We initially prepared to challenge the executive order in court, and a team of Paul, Weiss attorneys prepared a lawsuit in the finest traditions of the firm. 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. We could prevent the executive order from taking effect, but we couldn't erase it. Clients had told us that they were not going to be able to stay with us, even though they wanted to. It was very likely that our firm would not be able to survive a protracted dispute with the Administration.

At the same time, we learned that the Administration might be willing to reach a resolution with us. So, working with our outside counsel, we did exactly what we advise our clients to do in "bet the company" litigation every day: we talked with the Administration to see if we could achieve a lasting settlement that would not require us to compromise our core values and fundamental principles.

In a matter of days, we were able to negotiate such a resolution. That resolution … had three primary components. First, we reiterated our commitment to viewpoint diversity, including in recruiting and in the intake of new matters. Second, while retaining our longstanding commitment to diversity in all of its forms, we agreed that we would follow the law with respect to our employment practices. And third, we agreed to commit $10 million per year over the next four years in pro bono time in three areas in which we are already doing significant work: assisting our Nation's veterans, countering anti-Semitism, and promoting the fairness of the justice system.

Next!!!  From Our Leader's latest Executive Order (emphases added):

"Jenner & Block LLP (Jenner) is yet another law firm that has abandoned the profession's highest ideals, condoned partisan "lawfare," and abused its pro bono practice to engage in activities that undermine justice and the interests of the United States.  For example, Jenner engages in obvious partisan representations to achieve political ends, supports attacks against women and children based on a refusal to accept the biological reality of sex, and backs the obstruction of efforts to prevent illegal aliens from committing horrific crimes and trafficking deadly drugs within our borders.  Moreover, Jenner discriminates against its employees based on race and other categories prohibited by civil rights laws, including through the use of race-based "targets."

In addition, Jenner was "thrilled" to re-hire the unethical Andrew Weissmann after his time engaging in partisan prosecution as part of Robert Mueller's entirely unjustified investigation.  Andrew Weissmann's career has been rooted in weaponized government and abuse of power, including devastating tens of thousands of American families who worked for the now defunct Arthur Andersen LLP, only to have his unlawfully aggressive prosecution overturned by the Supreme Court.  The numerous reports of Weissman's dishonesty, including pursuit of nonexistent crimes, bribery to foreign nationals, and overt demand that the Federal Government pursue a political agenda against me, is a concerning indictment of Jenner's values and priorities.

Whoa! Those are some really bad guys!  Another firm that re-hired an "unethical" attorney, about whom there have been "numerous reports of dishonesty"!  Unbelievable! I'm surprised that Our Leader, who can, by Executive Order, do pretty much anything he damn pleases, doesn't just toss the lot of them into the slammer.  But at least I'll sleep much more soundly knowing that those bastards don't have any more contracts with the federal government and that their employees are frozen out of federal buildings.

I hadn't heard of any of these terrible things Jenner and Block did until I read Our Leader's E.O., and I'm happy to take his word for all of it. Why wouldn't I?  He is, once again, judge, jury, and executioner - just like the Framers of the Constitution envisioned Presidents to act! He decides who's been unethical, who's been "weaponizing" the legal system on a partisan basis, and he busts their ass. And he's winning - nobody even cares that he issued this attack on Jenner and Block even though a federal judge enjoined him from doing the same thing to Perkins Coie a couple of weeks ago!

Our Leader has meted out the usual punishment:

  • suspending "any active security clearances held by individuals at Jenner pending a review of whether such clearances are consistent with the national interest";
  • identifying "all Government goods, property, material, and services, including Sensitive Compartmented Information Facilities, provided for the benefit of Jenner" which "the heads of agencies providing such material or services shall, to the extent permitted by law, expeditiously cease [to provide]; .
  • requiring all Government contractors "to disclose any business they do with Jenner and whether that business is related to the subject of the Government contract";
  • reviewing "all contracts with Jenner or with entities that disclose doing business with Jenner" and "taking appropriate steps to terminate any contract, to the maximum extent permitted by applicable law, including the Federal Acquisition Regulation, for which Jenner has been hired to perform any service";
  • "limiting official access from Federal Government buildings to employees of Jenner";
  •  "refraining from hiring employees of Jenner, including but not limited to Andrew Weissmann."

Any libertarians left out there?  How are we feeling about a president who unilaterally imposes this kind of punishment on private parties, based on "numerous reports" of bad action (A.K.A. "rumor" and "hearsay")?  No trial. No jury. No fact-finding.  Luckily for us, Our Leader is Infallible, so nobody need worry.

It appears that a group of current associates at some Biglaw firms (and not-so-biglaw firms) are circulating a letter decrying Our Leader's tactics of intimidation, and calling on their employers to take a stand against him.

 The Executive Branch has launched an all-out attack aimed at dismantling rule-of-law norms, including by censuring individual law firms by name because of past representation. On March 6, the Trump administration widened the scope of its attack to target firms with diversity, equity, and inclusion initiatives. This is not normal. We call on our employers, large American law firms, to defend their colleagues and the legal profession by condemning this rapid purge of "partisan actors," a group that seems to be synonymous with those the President feels have wronged him. . . . 

We join the American Bar Association in "reject[ing] the notion that the government can punish lawyers who represent certain clients." . . . When we are united, we cannot be intimidated. These tactics only work if the majority does not speak up. Our hope was that our employers, some of the most profitable law firms in the world, would lead the way. That has not yet been the case, but it still very much can be. It is easy to be afraid of being the first to speak. We are removing that barrier; we are speaking. Now it is our employers' turn. 

Good for them. Sign-on link is here.