Well, well, well. Would you look at that?
After months of bluster, threats, and performative chest-thumping, the Trump administration is reportedly slinking away from its own unconstitutional tantrum.
According to The Wall Street Journal, the Department of Justice “as soon as Monday is expected to drop its appeals of four trial-court rulings that struck down President Donald Trump’s actions against law firms Jenner & Block, WilmerHale, Perkins Coie, and Susman Godfrey.”
Let’s just sit with that for a second.
These were the executive orders that were supposedly so urgent, so righteous, so necessary to punish Biglaw for its perceived sins: representing the “wrong” clients, supporting diversity initiatives, not sufficiently genuflecting before MAGA orthodoxy. The administration went out of its way to make an example of firms like Jenner & Block, WilmerHale, Perkins Coie, and Susman Godfrey.
And what happened?
Judge after judge — across ideological lines — looked at these orders and said absolutely the hell not. The orders were unconstitutional and retaliatory abuses of executive power, and the courts fiercely swatted them down.
The administration appealed. Because you can’t build a culture war brand upon quietly accepting limitations, no matter how clearly articulated by the basic rule of law. But after all the posturing — and, presumably, under the distracting cover a war with Iran — the administration is dropping the appeals to avoid more humiliating losses.
All of which places a rather uncomfortable spotlight on the nine firms that bent a knee and traded their dignity to the administration rather than fight.
Those firms agreed to pony up a jaw-dropping $940 million in pro bono commitments — payola dressed up as patriotism — because they were afraid of these very executive orders. They calculated that it was safer to write a massive check in free legal services on behalf of conservative clients or approved causes than to risk being on the receiving end of a retaliatory EO. And their explicit acts of capitulation had a documented chilling effect on the entire industry.
Now even the government concedes that the orders were indefensible.
Imagine being in the next partnership meeting, listening to leadership explain that “We had to make a deal. The executive orders were too dangerous!” Along the way, the firms became infamous with law students and a lot of clients, all to avoid executive orders that the MAGA faithful at the DOJ have decided aren’t even worth defending anymore.
With the appeals being quietly ushered offstage, the contrast couldn’t be sharper. Some firms bet on the courts and the rule of law. Others bet on appeasement.
Only one group looks good today. The others have $940 million worth of egg on their face.
Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Mastodon @Kathryn1@mastodon.social.
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