Crime & Law
Trump’s Executive Orders Targeting Law Firms Tee Up Potential Constitutional Clash
Some of the nation’s largest law firms have recently been faced with a stark choice — cooperate with the Trump administration or face punitive executive orders.
As of Friday, five more big law firms gave in to President Donald Trump’s demands, committing to provide $600 million in pro bono legal work to the administration.
The White House said that the firms of Kirkland & Ellis LLP; Allen Overy Shearman Sterling US LLP; Simpson Thacher & Bartlett LLP; and Latham & Watkins LLP would each provide $125 million in free legal work for causes including veterans affairs and combatting antisemitism. As part of the agreement, the administration agreed to withdraw letters from the Equal Employment Opportunity Commission demanding information about whether the firms were engaged in discriminatory hiring practices.
In a separate deal also announced Friday, Trump said the firm of Cadwalader, Wickersham & Taft would agree to dedicate $100 million in pro bono services. The agreements also required the firms to disavow any “illegal” diversity, equity and inclusion considerations in their hiring and to agree to accept clients without regard to political beliefs.
With those deals, Trump has now secured commitments for almost $1 billion in free legal help to support conservative causes from some of the country’s most powerful law firms.
But several firms — including Chicago-based Jenner and Block — are choosing to oppose the administration’s demands.
And constitutional scholars are questioning the legality of Trump’s actions.
“We have never seen executive orders targeting law firms before. It’s totally unprecedented,” said Harold Krent, former dean, constitutional law specialist and now professor of law at Chicago-Kent College of Law. “It seems to me clearly unconstitutional.”
Krent said the Trump administration’s actions could be challenged on at least two constitutional grounds.
“The first is they’re singling out law firms based upon the content of their speech and what their advocacy has been, and so that’s clearly retaliation,” Krent said, and a violation of their 1st Amendment rights.
Secondly, Krent said, the administration’s actions effectively limit a person’s right to counsel if some law firms opt not to represent clients or take on cases that may displease the president.
David Applegate, a lawyer with Williams Barber & Morel and a member of the libertarian and conservative-leaning Federalist Society, said that while the Trump administration may be able to find a “technical legal argument” related to the bounds of executive authority to support its actions, in his view, it is an inappropriate use of executive orders.
“I take a very dim view of executive orders generally,” Applegate said. “I think the lawmaking power belongs with the Congress and we have invested way too much power in the president. This is really an extreme example of the kind of abuse of power that you can have.”
The financial pressure on big law firms with billion-dollar revenues to cave to the administration’s demands is immense.
“The No. 1 criterion for success and advancement basically is your client list and how much you’re bringing in business for the firm, some of which have revenues in the billions of dollars today,” said Applegate. “So a firm that has lobbying business or business with government agencies (being shut out of government work) — that can have a serious financial impact.”
Krent and Applegate both expect the courts to rule against Trump’s actions.
“All the courts are going to find that this really is an assault on the rule of law,” said Krent. “If people wouldn’t take unpopular clients, then you wouldn’t have a justice system at all.”
“I think this goes to the Supreme Court unless the administration decides to settle based on lower court decisions that I think will almost certainly go against it,” said Applegate.
And the big question then is whether Trump will comply with a Supreme Court order if it rules against his administration.
“That’s the issue underlying all of these confrontations that are coming forward and particularly with what’s going on in El Salvador today — how do you get the administration to comply with a court order?” Krent said. “That’s the real threat to our constitutional order.”
“This is an inflection point,” said Krent. “These are perilous times. I hope cooler heads prevail, but there’s no guarantee.”
The Associated Press contributed to this report.
