f Skadden weren’t there, who would miss it?’ This brutal question caught the attention of partners of US-headquartered firms who downloaded a podcast on the president’s decision to target law firms for past cases they had brought for clients, and the lawyers they had hired. Firms’ diversity, equity and inclusion (DEI) policies were also in Trump’s sights.
Skadden pre-empted receipt of an order by dealing with the White House before one was issued.
The answer to the question is not clear cut. Maybe that is why it is being used to shape the thinking of other firms as they decide how to respond to Trump’s attacks.
Orders
The White House has acted against law firms in two ways. The first, and most noticeable, has been executive orders. The second has been letters to a wider group of 20 firms from the Equal Employment Opportunity Commission (EEOC). These demanded information about those firms’ DEI policies, based on the position that any sort of treatment of underrepresented groups that appeared preferential to that group in policy or practice was unequal treatment for other groups, and therefore discriminatory. That point was also commonly present in the executive orders.
The first order was against Covington, on 25 February, but while unprecedented, it was also narrow in scope. The order suspended the security clearance of lawyers who had worked with special counsel Jack Smith, who was appointed by the justice department and who had brought criminal charges against Trump after his first term. It also initiated a review and termination of the firm’s federal instructions.
The Covington order proved to be a straw in the wind, indicating that the president intended to make good on threats against lawyers and jurists made while he was out of office. It was clearly a vendetta.
Existential threats
A 6 March order, ‘Addressing risks from Perkins Coie’ went much further and established the format for others that followed. In its ‘purpose’, the order equated past cases which were disobliging to the president’s interests and views (‘dishonest and dangerous activity’) with the national (and national security) interest. This was the justification for what followed, including the withdrawal of security clearances for all the firm’s personnel. This effected a bar on them entering federal government buildings, including the premises of regulators and courts. It required private businesses with government contracts to report on and terminate instructions to the law firm or lose their contracts.
The order labelled the firm’s DEI policies illegal, and barred federal agencies and businesses with government contracts from hiring personnel from the firm.
Perkins Coie’s transgression, according to the order, was that ‘in 2016 while representing failed presidential candidate Hillary Clinton, [the firm] hired Fusion GPS, which then manufactured a false “dossier” designed to steal an election’. (Top Democrat lawyer Marc Elias had been a Perkins Coie partner, but left to start his own firm in 2021.)
This was an unprecedented interference in a private business by federal government, let alone a law firm, in the face of numerous constitutional protections against such retaliatory actions.
The format was followed in an order against Paul Weiss on 14 March. Paul Weiss had brought actions against protesters at the US Capitol Building on 6 January 2021 and investigated Trump during his first presidential term.
Another followed against Jenner & Block on 25 March. The firm’s offence was to hire Andrew Weissmann. No longer with the firm, Weissmann had worked with Robert Mueller, special counsel in the Trump-Russia investigation.
WilmerHale, likewise a firm with a past connection to Mueller, was the subject of another order on 27 March on the same ground.
Susman Godfrey followed on 9 April. The firm had successfully represented Dominion Voting Systems in election-related litigation, when false accusations were made about its voting machines during and after the 2020 presidential election.
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