How the Government Should Deal with Lawyers' Alleged Bad Behavior: Substance and Procedure

Last week, I posted an excerpt of Paul Clement's arguments as to why the Executive Order targeting the WilmerHale law firm violates the Constitution, and said they struck me as quite correct. (The analysis is similar, I think, with regard to the other Executive Orders targeting law firms.) In response, a reader asked:

With all the hub-bub now around Big Law firms being attacked, it might be nice to see a piece harkening back to the way numerous lawyers and law firms were attacked by the left back when we were representing Trump in 2016 and 2020 and how the profession didn't so much as yawn in our direction about it.

For example, in a WSJ article on March 9, 2025 ("Fear of Trump Has Elite Law Firms in Retreat"), Rep. Jamie Raskin's (D., Md.) was fired up that the Trump administration was singling out law firms that solicited the Steele dossier and which vigorously attacked Trump's own lawyers in 2020. Raskin was a Constitutional law professor before his election to Congress. He was utterly silent when his then Congressional colleague, Bill Pascrell, Jr. (D., NJ.) wrote a letter on November 20, 2020 to the Pennsylvania Disciplinary Board seeking to have [various lawyers] disbarred solely because we represented President Trump in courts across Pennsylvania on mundane election law issues not involving allegations of fraud….

It didn't much seem to matter to anyone back then because we were mostly small firm and solo practitioners under attack. Now that its Big Law getting punched, suddenly everyone's up in arms. Where was the rest of our profession when we were getting hit with both barrels back then?

I think this is an important question; let me offer a tentative and partial answer.

Lawyers are bound by specific professional obligations, and violating them can rightly lead to discipline. Those start with reprimands and financial sanctions, and move up to loss of one's license and therefore one's livelihood. Indeed, some lawyer misconduct may actually be criminal.

Just to give some examples, lawyers aren't allowed to help their clients commit crimes (though of course they are often supposed to help their clients avoid punishment for committing crimes). Lawyers aren't allowed to make misrepresentations to courts. Lawyers aren't allowed to make legally frivolous arguments (though my sense is that making such frivolous arguments very rarely leads to punishment beyond the occasional financial sanction).

Now of course the existence of these disciplinary rules sometimes leads to demands that lawyers be punished for behavior that, viewed objectively, is perfectly legitimate. Disgruntled opponents sometimes make that arguments. Sometimes political opponents do, too. There's a risk that the bar authorities might erroneously punish legitimate behavior, whether because of simple error or political bias. And in any event, often the process is the punishment, even if the accused is ultimately cleared.

Nonetheless, if we are to have any rules governing lawyers' conduct, there needs to be a system to adjudicate claims of misconduct. If people, including government officials, think they've spotted a lawyer misbehaving, they are entitled to call for a bar investigation. If their calls seem to lack legal or factual basis, they can be criticized. If a bar finds misconduct but its explanation is unpersuasive, then it can be criticized.

But all that is part of our system of rule of law, not inherently an interference with it. The disputes also often have to do with contested factual claims (who made what assertions, what they knew at the time, and so on). They have to do with how rules, which are often imprecise, apply to the contested facts. As a result, many observers might have little to say about such allegations, especially before the bar investigates the matter and issues a decision (and sometimes even after).

The Executive Orders targeting the firms, on the other hand, have nothing to do with either the substantive rules that lawyers must follow or the procedures set up for adjudicating disputes about such rules. Consider some of the allegations in the Executive Order targeting WilmerHale:

WilmerHale engages in obvious partisan representations to achieve political ends, supports efforts to discriminate on the basis of race, backs the obstruction of efforts to prevent illegal aliens from committing horrific crimes and trafficking deadly drugs within our borders, and furthers the degradation of the quality of American elections, including by supporting efforts designed to enable noncitizens to vote.

None of that is actually inherently against the established rules governing lawyers. No rules of lawyer conduct forbid partisan representations to achieve political ends. (Many Republican-leaning lawyers do that all the time.) No rules forbid supporting efforts to discriminate on the basis of race; a court may reject an argument in favor of race discrimination, but lawyers are free to make such an argument. Likewise as to lawyers' opposition to enforcement of immigration law or criminal law, or their "supporting efforts designed to enable noncitizens to vote."

The premise of our legal system is that lawyers can take either side in any of these disputes. Indeed, the lawyers' speech and petitioning in such cases are generally protected by the First Amendment, and the government generally may not retaliate against them based on such First-Amendment-protected actions.

The same is basically true, I think, as to most of the allegations in this paragraph:

WilmerHale is also bent on employing lawyers who weaponize the prosecutorial power to upend the democratic process and distort justice. For example, WilmerHale rewarded Robert Mueller and his colleagues—Aaron Zebley, Mueller's "top aide" and "closest associate," and James Quarles—by welcoming them to the firm after they wielded the power of the Federal Government to lead one of the most partisan investigations in American history. Mueller's investigation epitomizes the weaponization of government, yet WilmerHale claimed he "embodies the highest value of our firm and profession." Mueller's "investigation" upended the lives of public servants in my Administration who were summoned before "prosecutors" with the effect of interfering in their ability to fulfill the mandates of my first term agenda. This weaponization of the justice system must not be rewarded, let alone condoned.

But even if you think that the named people actually did violate any prosecutorial obligations in their behavior, it's not up to the President to decide whether as a result these lawyers—or their law firms—should be banned from representing federal contractors (or, under unspecified circumstances, excluded from federal government buildings). We have rules, and for good reason, that (1) clients should have the right to choose which lawyers represent them, unless (2) the courts or the bar authorities (which are ultimately answerable to the courts) find that the lawyers have committed sufficiently serious misconduct.

I've joked that lawyers' true superpower is the power to turn every question into a question about procedure. But there's good sense behind the legal system's obsession with procedure (even if at times that obsession goes too far).

We leave adjudication of claims of lawyer misconduct to the judiciary, and we have rules for how those claims are adjudicated. We don't make the President the decisionmaker on such matters. That's especially sensible when the President is upset with the lawyers because of their behavior in cases involving himself, or his subordinates. But it's also true in other cases as well.

Now, to be sure, the President does have considerable authority to make some decisions about perceived lawyer misbehavior. To take the most obvious example, if he thinks the Attorney General has acted improperly, he doesn't have to wait for a bar investigation to dismiss him. Likewise, the Executive Branch has great authority over security clearances. The questions about possible loss of security clearance for lawyers at the targeted firms are potentially harder precisely because of that.

The President may also have some authority over decisions about which lower-level lawyers to hire or fire, or which law firms to engage on the government's behalf if the government wants private representation. Yet even that authority is constrained by the First Amendment, and probably by the various procedural rules that have been set up to protect government employees and government contractors.

And the Executive Branch doesn't have the same employment relationship with the lawyers who represent federal contractors. The President is not allowed, I think, to just unilaterally decide that some law firms have misbehaved and therefore should be effectively barred from representing federal contractors. And, again, that is especially so when the alleged misbehavior is the firm's taking litigation positions of which the President disapproves.

In any event, the reader asked the question, and I thought I'd offer my answer. I'd love to hear what others think as well.

Comments

[Brett Bellmore]

" WilmerHale engages in obvious partisan representations to achieve political ends, supports efforts to discriminate on the basis of race, backs the obstruction of efforts to prevent illegal aliens from committing horrific crimes and trafficking deadly drugs within our borders, and furthers the degradation of the quality of American elections, including by supporting efforts designed to enable noncitizens to vote.

None of that is actually inherently against the established rules governing lawyers."

I think you're... not quite right here. Don't the rules governing lawyers require that they be, well, law abiding?

In fact, isn't the administration directly citing the Federal Rules of Civil Procedure, in justifying these actions?

I mean, maybe they're wrong, but they are in fact justifying these actions on the basis of rules of conduct for lawyers.

[tuphat]

If the administration believes the lawyers are not "law abiding," then they should indict and prosecute them. But that's probably too messy, right, due process and everything?

[rloquitur]

They are doing them a fave---a DOJ investigation into their DEI practices would really suck for them.

[Magister]

Since they want to harm these lawyers and law firms, why wouldn't they do something that "would really suck for them"? Maybe it wouldn't suck that badly for them.

(Separately, the Trump administration wants to establish its power to act without Congress or the courts, so there may also be other reasons they prefer not to prosecute their targets, but not admirable or constitutional reasons.)

[rloquitur]

It's all about the W. They got a quick win.

[Noscitur a sociis]

You realize that the firm under discussion just won in court, right?

[rloquitur]

Um, SASM&F just caved.

[Voodoo]

Two firms sort of caved, and 3 firms are fighting, and getting initial wins in court. Hard to know what any of this means for the firms who cave. Perhaps they get temporary relief from being out of the Pres's crosshairs, but now they are just under the Pres's thumb. (And retain the stain of being a firm the Pres believes is immoral but gets to soldier on after saying a few Hail Marys.)

If you are a lawyer with substantial business, working for a firm that was once in Pres's crosshairs and is now under his thumb, and which he still believes is immoral, what will you do? Probably move to another firm.

So in the end, who's getting a "win" here? The Pres gets some superficial wins by getting 2 firms to play along, and in the process probably also harms those firms by driving away some top rainmakers, who will move along and be just fine. Cool -- partial vindication for the Pres's personal vendetta. But do the people (of the USA) win? Does the govt win? Or are we all agreed those questions are entirely irrelevant?

[Lee Moore]

I think you have this kinda backwards. This is not about what the lawyers think, it's about what the lawyers' clients think. You cannot make rain if nobody will hire you to represent them.

Which is why wins in court are irrelevant.

The question is will a company bidding for government contracts be more comfortable hiring bend-the-knee Skadden Arps, or one the feisty "we'll fight Trump on the beaches" firms ? Will the choice, in practice, influence whether the contract is awarded ?

Let's do this in baby terms. You, C Montgomery Voodoo, own a large federal contractor. Do you think your chances of getting a series of fat contracts are enhanced by you going onto CNN (if it still exists) and mouthing off about "that fat Orange Creep" ? Or not ? So why would you take a chance with your lawyers ?

[Voodoo]

I'm not doubting firms who've chosen to fight will miss out on some clients who want a lawyer or firm with a good relationship with the administration. I haven't suggested otherwise.

What I'm doubting, though, is that a sophisticated client will think it a good idea to send that legal work to one of the firms that bent the knee. They'll just take their business to a firm that isn't compromised either way. There are at least 25 others in the echelon of the of the 5 that have been the subject of recent events, and dozens of other large firms and boutiques that are right on their heals.

Now, say you're a partner with a good book of business at a bend-the-knee firm. You're not getting *more* work because your firm bent-the-knee. You might get less, because your smart client knows the knee-bending was more like a temporary hall pass and the Pres still isn't too fond of your firm. What do you do? Stay, or move to one of the uncompromised firms? Partners who are able, will move.

[Noscitur a sociis]

If the administration isn’t vigorously enforcing civil rights laws against them, that’s worse!

[not guilty]

"They are doing them a fave---a DOJ investigation into their DEI practices would really suck for them."

I doubt that. A private employer's diversity, equity, inclusion and accessibility policies and practices, standing alone, do not violate federal law. An egregious case could lead to civil liability, but I am confident that litigation firms know where the boundaries are.

[jb]

That's not one of the orders targeting specific law firms like WilmerHale, though, which is the issue here.

Where in the EO regarding WilmerHale do you see an assertion of an actual violation of the law?

[Brett Bellmore]

You mean this EO? Reads almost exactly the same.

Here's your assertion: "Moreover, WilmerHale itself discriminates against its employees based on race and other categories prohibited by civil rights laws, including through the use of race-based “targets.”"

[Noscitur a sociis]

But again, there’s a process for addressing unlawful discrimination, and this isn’t it.

[Brett Bellmore]

But, going back to the start of this thread, Eugene's "None of that is actually inherently against the established rules governing lawyers.", I was just pointing out that the EO's actually DO accuse the law firms of violating established rules governing lawyers.

I mean, we can argue about whether the appropriate response to thinking a law firm is breaking the law is prosecution and/or boycotting them, but I wanted it clear that breaking the law, and standards for lawyerly behavior, WAS being alleged.

[jb]

Reads pretty differently to me. For example, there's no rules of the FRCP.

But fair enough, you found the one sentence in the EO that relates to an actual law. I think that Professor Volokh's overall point is valid--that most of the rationale in the EO is not related to WilmerHale violating any laws and is clearly intended to discourage the firm from representing causes that Trump happens to disagree with versus because he's making the case that they're illegal, unethical, etc. (i.e., that one sentence doesn't in any way address the substance of either Volokh's or Clement's arguments)

[Noscitur a sociis]

Everything in that paragraph refers to their representation in various, and nothing about that representation would be inherently unlawful.

[Brett Bellmore]

You seem to have missed the allegation that DEI practices violate federal civil rights laws.

[David Nieporent]

Weird how there's no lawsuit alleging that this happened, then.

[not guilty]

No, Brett, a private employer's DEI practices do not violate federal civil rights laws.

[Social Justice is neither]

Funny how that only applies to one side in your mind.

[Noscitur a sociis]

Can you elaborate? I’d love to learn more about what’s on my mind, since you seem so knowledgeable about it.

[rloquitur]

What you're missing, EV, is that the law firms are vulnerable due to their DEI initiatives. It's the same tried and true method of the DOJ under Holder and Garland--nail them on something, then leverage that to get them to cooperate on other fronts. Now, we are supposed to be sad because BigLaw is getting a taste of his medicine?

[tuphat]

"The President is not allowed, I think, to just unilaterally decide that some law firms have misbehaved and therefore should be effectively barred from representing federal contractors." Isn't this the most egregious and obvious weakness of the EO?

[rloquitur]

Give money to a Republican and see if you can get a contract in the City of Chicago . . . .

[dwb68]

Basically this. Progressives have been denying state and city money to conservative groups (especially those promoting adoption over abortion) for decades. Now that the shoe is on the other foot, its ileeeeeegal and unconstituuuutional.

I mean fine: no discrimination based on political affiliation. But that should be read to include redistricting!

[Sarcastr0]

Progressives have been denying state and city money to conservative groups

There has been nothing like these EO's before.

[rloquitur]

Obama's AIG abuses . . . . yeah, those were very similar

[jb]

Many of us don't exist in your weird right wing conspiracy bubble, so you might have to elaborate a little on what you mean.

[Lee Moore]

Sarcastro : There has been nothing like these EO's before.

Of course not. You are pretending to forget that this is asymmetrical warfare. You guys have the net and trident, we have the sword and shield.

The apparat is composed of your guys so you don't need to order them to do what you want. They'll do it anyway. If the apparat was full of committed Trumpkins he wouldn't need to issue all these orders.

That's what all the fuss is about with the unitary executive thing and Trump firing Dem hacks. He is threatening the Dem control of the apparat. He is picking at the stitching of your net, the dirty dog.

[Causter]

As always, it's (D)ifferent.

[windycityattorney]

What does that have to do with the President and executive order's targeting firms? Is the president relying on Chicago's alleged exclusionary contracting practices to justify its executive orders?

[rloquitur]

No. It's just showing what the rules of the game are. If the Democratic party doesn't give a shit about all the contracting abuses of their friends in big cities, then why should I give one about BigLaw?

[Noscitur a sociis]

A different person in a different unit of government apocryphally did something sort of similar, therefore we’re allowed to do whatever we want.

This is actually how some of these people think.

[rloquitur]

There's enough of it that we're going to stick it to you.

[Noscitur a sociis]

How is attempting to strongarm law firms that I don’t particularly like and never have and in all likelihood never will work for “stick[ing] it to” me? Or are you talking about the court costs imposed on me as a taxpayer when the administration loses?

[Noscitur a sociis]

Here are the contracts issued by Chicago:

https://webapps1.chicago.gov/vcsearch/

They awarded one on Thursday for more than $137 million to Granite Construction.

In the 2024 cycle, Granite Construction donated primarily to Democrats, but they did donate to two Republicans, including Donald Trump.

https://www.opensecrets.org/orgs/granite-construction/summary?id=D000026279

[rloquitur]

You found the exception that proves the rule.

[Noscitur a sociis]

What a coincidence that it was literally the first contract I looked it!

[rloquitur]

I lived there for 15 years. Let's just say that the city's contracting process, as long as a lot of other things, absolutely suck.

[Noscitur a sociis]

That slightly different from your original claim!

[dwb68]

"If people, including government officials, think they've spotted a lawyer misbehaving, they are entitled to call for a bar investigation. If their calls seem to lack legal or factual basis, they can be criticized. If a bar finds misconduct but its explanation is unpersuasive, then it can be criticized."

A distinction without a difference since the disciplinary committees themselves are stacked with ideologues. Referring a conservative lawyer to a disciplinary committee full of leftists is just as chilling for the legal profession. The committee can disbar him/her and take away their livelihood. Anyone who naively thinks these disciplinary committees are objective loses credibility in my mind.

Letitia James and Raskin made an entire campaign out of getting Trump and his allies ("show me the man, I'll show you the crime"). Having failed to convince a majority of the electorate of their position, having lost the house and Senate too, they are resorting to lawfare. What goes around in D.C. always comes around.

Clement may be right on paper, but the hypocrisy is palpable, and injunctions won't stop clients from leaving. Maybe current contracts have to be honored, maybe not, but firms can go bankrupt waiting for the check to clear after litigation, and in any case, there is no entitlement to future federal contracts.

Will people learn their lesson on improprieties, gamesmanship, and lawfare? Doesnt look like it.

[David Nieporent]

A distinction without a difference since the disciplinary committees themselves are stacked with ideologues.

Another person who's an expert on a topic he knows nothing about.

[dwb68]

Ahhh, another progressive who thinks only progressives are angelic

[David Nieporent]

Are you retarded? I am not a progressive.

[Roger S]

You are a Trump-hater, so you are aligned with the progressives.

[CountmontyC]

Shouldn't Trump have to be convicted of a crime before disbarring his attorneys for supposedly helping him commit a crime?

[windycityattorney]

Are you suggesting that the allegations for which someone was federally indicted are not sufficient to refer to a bar licensing entity for investigation absent a conviction first?

Let's say, for example, there are unindicted co conspirators and those people are lawyers who advised the president. Is not the bar association looking at ethics of the conduct vs the criminality? There may be significant overlap but its not an absolute 1 to 1...there could be an ethical lapse that doesn't rise to the level of criminality.

Neglect of client's files is a major reason to suffer bar discipline. It's not exactly criminal and often criminal charges are not filed (absent some fraud.) But that doesn't mean the lawyer cannot be disciplined for violating their ethical duties to their clients especially if its a pattern of conduct. It happens all the time.

[Noscitur a sociis]

Attempting to help a client commit a crime seems worthy of discipline even if the crime is never committed. It follows a fortiori that the client’s conviction can’t be a prerequisite.

[Jett's Pop]

"No rules forbid supporting efforts to discriminate on the basis of race; a court may reject an argument in favor of race discrimination, but lawyers are free to make such an argument."

The assumption here is that "supporting efforts to discriminate" was only done through legal arguments made in court, but the E.O. doesn't say that, does it? And, of course, there are lots of rules that forbid "supporting efforts to discriminate" in certain circumstances (T7, the EPC).

Of course, the post accurately says that the administration should not be making those determinations itself.

[Mr. Bumble]

"And in any event, often the process is the punishment, even if the accused is ultimately cleared."
The money quote.

[Voize of Reazon]

Pascrell wrote that letter, and letters to disciplinary bodies in Arizona, Michigan, New York, and Nevada. They alleged the making of frivolous arguments and misrepresentation, which is a little more than just representing President Trump, but I could believe that in his letter-writing frenzy he cast the net too wide and caught up some lawyers who had represented Trump in election litigation without crossing that line.

Then Rep. Andy Biggs introduced a House resolution to censure Pascrell for writing his letters, and for good measure wrote his own letter to AG Bill Barr urging him "to investigate Representative Bill Pascrell for possible civil rights violations".

So, what happened with all these letters and resolutions? Well, nothing. Those state disciplinary boards, and the House, and the DoJ were all free to say thanks but no thanks, and they did.

And that's the difference. Trump isn't writing letters advocating that some neutral authority investigate and punish his enemies, letters they would be free to ignore. He is ordering punishment, orders his agencies are presumptively required to follow.

If Pascrell had possessed and used the power to adjudge and punish those lawyers, then these would be comparable incidents.

[Absaroka]

It's 2022 and President Biden is upset that Dewey, Cheatham, and Howe have successfully represented the NRA or Glock or whoever. He issues an EO that the feds won't do business with DC&H, nor with any business that hires them.

All hunky-dory?

It doesn't have to stop there. He learns their lease is due for renewal, and their building owner has a lot of other leases with GSA, so he says GSA will cancel if DC&H has their lease renewed. Mr. Dewey is thinking of buying a new Mercedes, so the Pres tells Daimler they will be looking at big tariffs if they sell him a new car. Mr. Howe likes to have his groceries delivered from Whole Foods, but that can be fixed with a quick call to Bezos about whether that antitrust investigation ought to proceed.

That kind of unpersoning is completely incompatible with democracy.

[rloquitur]

Yes, but you guys were cool with Operation Chokepoint, so eff off.

[Brett Bellmore]

That sounds like exactly how the NRA has been treated in NY, though, doesn't it? So it's not exactly a hypothetical.

In Supreme Court NRA ruling, justices issue unanimous decision in favor of gun group

[Absaroka]

"So it's not exactly a hypothetical"

Indeed, that's why I picked it. People who didn't think it was OK when Team D did it shouldn't think it is OK when Team R does it.

[rloquitur]

Well, there's the whole unilateral disarmament thing. I don't recall team D getting too worked up about SEIU trying to take money from people getting Medicaid reimbursement to take care of their profoundly disabled children/ So once again, eff off.

[David Nieporent]

If it weren't for not having any principles, rloquitur wouldn't not have any principles at all.

[rloquitur]

Like I said, where were the likes of you when SEIU was trying to grab money from moms taking care of an profoundly disabled kid. And when four Justices on Supreme Court thought it should be ok. There's a reason we call them 'rats.

[David Nieporent]

Like I said, where were you when Solzhenitsyn was sent to the Gulag?

[Lee Moore]

The principle is Tit-for-Tat.

[not guilty]

Whenever I hear or read the phrase, tit for tat, I can't help but recall Dennis Miller's three questions: (1) What is tat? (2) Where can I get it? and (3) How do I exchange it for the other?

[Sarcastr0]

1. Attempted to persuade. Trump's gone well beyond that.

2. This was found impermissible but the Supreme Court. You seem to agree; so how are you okay with it now?

[Carl_N_Brown]

I assume you meant "This was found impermissible by the Supreme Court."
I'll blame autocorrect.

[Sarcastr0]

Yeah my tablet typing is at speed, but not as accurate as desktop.

[rloquitur]

Can't unilaterally disarm. And then there's the whole lawfare against Trump personally.

[Noscitur a sociis]

And I assume you think that treatment was bad?

[Social Justice is neither]

But it is perfectly consistent with Democrat actions in support of "our Democracy" so what's your point?

[Rossami]

Prof Volokh, I'm confused by something you say in the middle of the article. Specifically, you said "it's not up to the President to decide whether ... these lawyers — or their law firms — should be banned from representing federal contractors" but then that "clients should have the right to choose which lawyers represent them". The president, as head of the Executive Branch, is the client, no? Under the standard rules of an attorney/client relationship, why doesn't he have the power to say that X law firm should not represent this administration?

The argument that "the law firms are protected by the First Amendment" does not strike me as sufficient. Losing a customer because you pissed them off (for any reason or none) is not the kind of right that seems redressable without stomping all over the rule that clients get to choose which lawyers represent them.

If you are only objecting to the application of 'client's choice' to federal contractors (rather than to the government itself), how is a rule restricting a federal contractor's choice of legal services provider any different from the (as far as I can tell) entirely uncontroversial rules restricting federal contractors' choices of security services, electrical services, labor services and probably dozens of other conditions and stipulations of becoming a federal contractor?

Note: I'm not saying that these executive orders are good policy. I just don't understand how the thesis above is a valid argument against them.

[Noscitur a sociis]

The president, as head of the Executive Branch, is the client, no? Under the standard rules of an attorney/client relationship, why doesn't he have the power to say that X law firm should not represent this administration?

Prof. Volokh isn’t referring to the prohibition on the government hiring the firms (which is largely hypothetical anyway). He’s talking about the attempt to ban the firm’s other clients from getting federal contracts.

[Rossami]

Actually, he is. At least, in part. See the third paragraph from the bottom.

[David Nieporent]

how is a rule restricting a federal contractor's choice of legal services provider any different from the (as far as I can tell) entirely uncontroversial rules restricting federal contractors' choices of security services, electrical services, labor services and probably dozens of other conditions and stipulations of becoming a federal contractor?

Because those aren't speech?

[David Nieporent]

But also, those "entirely uncontroversial rules" are generally applicable rules. You can't hire a contractor with too many OSHA violations, or that has been convicted of Medicare fraud, or whatever. Not "You can't hire XYZ company because the president has decided he doesn't like the CEO."

[rloquitur]

Where were you when Obama DOJ did Operation Chokepoint?

[David Nieporent]

Where were you when they burned Joan of Arc at the stake?

[rloquitur]

Aww, aren't you clever. Here's the problem--the people for whom you're a pathetic fan-boy have been doing shit like this for years. So why would we take the lumps and not fight fire with fire?

Gone are the days when pathetic Republicans would flagellate themselves over some Dem accusation. The Ronnie White nomination is instructive. Ronnie White was and is a dipshit. Flagged the bar, academic probation in law school etc. etc. And Tom Daschle demagogued the issue during the Ashcroft nomination.

Now we hit back. You toss Peter Navarro in leg irons for doing what Eric Holder did, we're going to fuck over Perkins Coie. That simple.

[Noscitur a sociis]

So why would we take the lumps and not fight fire with fire?

Because there’s such a thing as right and wrong?

You toss Peter Navarro in leg irons for doing what Eric Holder did, we're going to fuck over Perkins Coie. That simple.

Yeah, that’ll show… someone! (For the couple of days before the TRO is issued.)

[David Nieporent]

For the record, Peter Navarro did not do what Eric Holder did. Eric Holder refused to produce some documents to Congress on the ground that the president (Obama) had invoked executive privilege. Peter Navarro refused to testify on the grounds that he personally wanted to invoke executive privilege despite not being the president. If you're a Navarro stan, you should be mad at Trump for refusing to invoke executive privilege to protect him.

[rloquitur]

Just stop. You're a toady.

[David Nieporent]

I'll take that as the white flag of surrender that it is.

[rloquitur]

No. Just an acceptance that you are a fan-boy and impervious to facts/reason. Go team.

[Michael Ejercito]

Holder was held in contempt.

[Absaroka]

Your third paragraph raises interesting questions, and I think there can be a lot of grey.

At one end of the spectrum, it seems pretty uncontroversial that a contract could say 'all work will be done in accordance with the electrical code'. That's just ensuring the govt is buying a quality product, not playing politics.

To get a little more controversial, what about 'vendors will certify that at least 10% of their electricity is produced from renewables' or 'vendors will certify none of the components are produced by Uyghur slave labor'. Those aren't just about buying a quality product, but are trying (rightly or wrongly) to promote general public welfare[1], environmentally or morally.

At the hopefully not OK with anyone end of the spectrum would be a 1979 requirement that school lunch programs produce their peanut butter with at least 10% peanuts bought from Carter Peanut Farms Inc. That's obviously about benefiting someone other than the general public.

So what about the requirements that only union labor be used? It's not corrupt in the sense of the peanuts. It is a little sketchy when unions overwhelmingly support one party. OTOH, if Party A says 'end public schools' while the other doesn't, teachers - and their union - might support Party B for both altruistic (they think an educated public is good and public schools are the best way to do that) and selfish (their paychecks!) reasons. Those kinds of conflicts seem unavoidable, and I'm not sure much can be done other than have the decision making happen out in the open.

OK, finally, what about law firms. Is it OK for a president say 'we won't hire so-n-so because they hired my ex's divorce lawyer'. On a personal case - he's drafting a will - OK, he's the client an can hire whoever he likes. But when he puts on the presidential hat, he's not supposed to doing whatever he likes - he is supposed to be doing what is best for all of us. It's his duty to do so. So the propriety question boils down to whether he is trying to hire, on behalf of us, the best (or cheapest or whatever) talent he can, or is he doing what is best for him personally. And letting personal animus into the decision sounds more like the peanut farm than obeying the electrical code.

[1]individuals may not be fans of green energy, or might be fans of Uyghur labor camps, of course.

[Rossami]

I completely agree. And the large amount of grey is a big part of why I think the categorical approach implied in the original post can not be right.

This is especially so since our usual redress for presidential "impropriety" is at the ballot box. So how do you even get consensus where the line is, much less write a rule that coherently defines it?

[ah....Clem]

What's going on here is basically extortion. "Give me $25M and stop representing clients I don't like or I'll ruin your business."

Yeah, I know, the Supreme Court has ruled that bribery and extortion are not illegal if they are done by the president, But the law firms should be fighting back on this instead of capitulating, otherwise they're just going to get more of this behavior.

[Roger S]

When lawyers do it, and use the right language in the paperwork, it is legal.

[Kleppe]

"None of that is actually inherently against the established rules governing lawyers [...] No rules forbid supporting efforts to discriminate on the basis of race."

Exhibit "A" why placing regulatory powers in the hands of the regulated is always a mistake.

BigLaw shrieks when they are made to account for their society destroying behavior, and libertarian lawyers -- the outcasts of their own profession -- come running to provide succor. Fucking cringe.

[Sarcastr0]

Since Trump won you just get angrier and angrier at more and more people.

[questioner7]

"the Executive Branch has great authority over security clearances" -- could a President strip security clearances based on race? If this would violate constitutional rights to equal protection, why wouldn't violation of constitutional rights to free speech matter in the security clearance context?

[not guilty]

The law firms that caved to Trump are at best shortsighted.

Suppose you are the head of a major corporation that frequently gets sued and accordingly needs a stand up law firm. Are you now going to give Paul Wiess or Skadden Arps, each of whom folded like a deck chair, even a moment's consideration?

[rloquitur]

SASM&F does some great work. Sometimes having really smart guys/gals do your legal work absolutely fucking matters.

[not guilty]

"Sometimes having really smart guys/gals do your legal work absolutely fucking matters."

I agree, but my hypothetical specifies a company that needs a stand up lawfirm. Any number of firms have really smart guys/gals do your legal work.

In the struggle to preserve the rule of law, Paul Wiess and Skadden Arps are quislings.

[Krenn]

On the other hand, it is kind of weird that there isn't really a "federal bar" that has jurisdiction over "federal legal representation". I mean, there's the DC Bar, but that's not quite the same thing.

I'm not saying that Trump's EO is sane, proper, or justified, but it does raise a hypothetical question....

Let's imagine that POTUS really did have clear evidence that a specific Big Law firm based in, say, Chicago, Illinois, really was willing to do anything and everything to assist their foreign governmental clients in the Chinese Communist Party, up to and including disclosing US classified information to them at every opportunity, and filing dubious-premise lawsuits solely for the purpose of acquiring MORE classified information to feed to the CCP later.

And let's imagine that, through a remarkable coincidence, the procedures for the Illinois bar association really don't address that specific kind of attorney misbehavior. And even the vaguer rules that MIGHT be bent to address that sort of misbehavior can only be used if the members of the Illinois bar association WANT to bend the rules that way, and they have been very clear that they DON'T want to bend the rules that way, and that generally speaking, the Illinois Bar Association doesn't care WHAT happens between Chicago law firms, the CCP, and federally classified documents. Not an Illinois problem.

In that situation, what recourse WOULD the President have? He can't file a complaint to the Federal Bar, because there isn't one. Bringing actual federal charges would take forever to actually secure a conviction beyond a reasonable doubt, and would involve huge problems with sequestering privileged attorney-client material. Asking every single individual federal judge to censor every single individual member of the Big Law firm in question sounds like an administrative nightmare.

The President has to have SOME ability to protect national secrets in that situation, and he has to be able to do so quickly, and to do so using some standard of evidence a lot weaker than "beyond a reasonable doubt."

So even if Trump's particular EO's in this particular case are totally unjustified... what WOULD a justified EO in a different situation actually look like?

[ReaderY]

Easy. The United States could prosecute the firm and its members under the Espionage Act for passing classified information. It could request sanctions for filing frivolous lawsuits from the judges of the lawsuits. And so forth.

The premise that there are no federal remedies for these things is just nonsense.

[Incunabulum]

So . . . what happens when the Bar is on the side of the abusers and either refuses to investigate or fakes one?

[Incunabulum]

Also, who are you supposed to take disputes with a lawyer's actions to at the federal level?

[not guilty]

"Also, who are you supposed to take disputes with a lawyer's actions to at the federal level?"

The bar disciplinary authorities in the state(s) where the offending lawyer is licensed.

[ReaderY]

You can ask for sanctions for frivolous lawsuits from the judges in the lawsuits. You can prosecute actual crimes.

However, as Professor Volokh said, most if not all of Mr. Trump’s beefs with these law firms do not involve any wrong-doing at all in the legal sense, merely conduct he doesn’t happen to like.

[ReaderY]

The whole thing shows two classic totalitarian tendencies: A tendency to conflate Mr. Trunp’s personal interests and enmities with those of the United States (“L’etat, c’est moi!”), and a tendency to attaint by decree with no regard to process of any kind.

On the latter, I am surprised that nobody has argued that the Bill of Attainder Clause also prohibits Proclamations of Attainder. At least the British monarchs bothered to go through Parliament first.