We should never have reached the point where presidents can threaten law firms over whom they hire and represent.

D onald Trump has come for the world of BigLaw — the big law firms that represent Wall Street and corporate America. For now, he’s winning — but at what cost?

There is a lot of hue and cry about big liberal institutions “bending the knee” to Trump — i.e., caving in to his demands after being targeted or threatened with executive orders or investigations. For a certain stripe of liberal or progressive, there’s a tribal duty to resist Trump, no matter what he asks. For a certain stripe of right-winger, Trump is just evening the score. As with so many things Trump, however, we need the perspective to draw careful distinctions between the good, the bad, and the ugly — the things that are righteous, the things that are abusive, and when he pursues righteous ends by abusive means.

Yes, that means that conservatives sometimes have to stick up for people and institutions who never stick up for us when the shoe is on the other foot. We can also remind them of how we got here.

Trump is on comparatively stronger ground dealing with Columbia University, where his stance is mostly good mixed with some ugly. By contrast, Trump’s executive order targeting the Perkins Coie law firm went too far, as Andy McCarthy and National Review’s The Week newsletter detail. Trump’s legitimate grievances are with specific Perkins Coie lawyers who left the firm years ago, and attacking a law firm with sanctions just for making bad legal arguments mirrors the efforts to disbar John Eastman, except it’s like going after places Eastman used to work. Of course, unlike Eastman, Perkins Coie got immediate relief from the courts.

The Case Against Paul Weiss

After Perkins Coie, next up was Paul, Weiss, Rifkind, Wharton & Garrison LLP (Paul Weiss), a longstanding, respected pillar of BigLaw based in New York that has long been known as left-leaning. I’m old enough to remember when one of its partners was the lead lawyer attacking the Reagan administration in the Iran-Contra hearings. Trump’s March 14 executive order leveled three charges against the firm.

First, “In 2021, a Paul Weiss partner and former leading prosecutor in the office of Special Counsel Robert Mueller brought a pro bono suit against individuals alleged to have participated in the events that occurred at or near the United States Capitol on January 6, 2021, on behalf of the District of Columbia Attorney General.”

Now, the law profession is a public trust, too lightly disciplined, due to its power to invoke the machinery of government against sometimes-defenseless citizens. A pro bono lawsuit representing an attorney general’s office is not the same thing as representing a private client. It carries the grave public trust that comes with the government pursuing ordinary citizens. Even so, it’s a core value of the legal profession that everyone deserves representation. There should be a strong norm against pressuring lawyers to drop clients or cases, or subjecting them to cancel culture — even when that client is a government body such as the House of Representatives.

But even if a lawyer acts improperly in a case, it’s a different level to punish an entire law firm, much less to target it for professional extinction. Paul Weiss employs over a thousand lawyers in ten cities across six countries, plus more than 1,500 non-lawyer support personnel. Heavy sanctions on an entire firm are uncalled for simply for one partner bringing a case that the authorities believe to be unjust or abusive. Moreover, the people involved in the January 6 riot at the Capitol did in fact do something very bad. Riots and rioters are bad. The law is supposed to stand against them.

Second, Paul Weiss rehired Mark Pomerantz, a partner who left Paul Weiss to work unpaid as special counsel for the Manhattan district attorney’s office just to pursue Trump. Trump complains that Pomerantz “unethically led witnesses in ways designed to implicate me.” (A lawyer led witnesses — heaven forfend!) “After being unable to convince even Manhattan District Attorney Alvin Bragg that a fraud case was feasible, Pomerantz engaged in a media campaign to gin up support for this unwarranted prosecution.”

As I covered extensively at the time, the Bragg prosecution was a grave abuse of the law in multiple ways. The hiring of outside freelancers such as Pomerantz made it likelier that the office would pursue an abusive prosecution. It was a grave abuse of legal ethics for Pomerantz to write an open letter and then a book urging Trump’s prosecution based upon his own participation in an investigation of Trump. If Trump used his powers to sanction Pomerantz, I’d have time for that.

But again, this principally reflects Pomerantz’s conduct outside of his practice at Paul Weiss. As a justification for firmwide sanctions, it reeks of indirectly punishing the 73-year-old Pomerantz by trying to make him unemployable instead of making a direct case against him, while punishing thousands of other innocent people.

Third, “Paul Weiss discriminates against its own employees on the basis of race and other categories prohibited by civil rights laws. Paul Weiss, along with nearly every other large, influential, or industry leading law firm, makes decisions around ‘targets’ based on race and sex.”

This is a more conventional case for the federal government to pursue a big business: discrimination against its employees. Whether the powers granted by civil rights and employment law are now worth more harm than good or are fundamentally inconsistent with the separation of federal power from private business associations, or whether outside pressure by the executive branch without filing charges subject to due process is legitimate in this area, liberals and progressives are the last people on earth to make that argument.

Trump is not writing on a blank slate here. Paul Weiss isn’t so much bending the knee as changing which knee is already bent. Pressure to meet “diversity” targets in hiring, promotion, and the like at BigLaw firms has been coming for quite some time from outside the firms, including directly from the government and indirectly from government pressure on clients, who in turn pass that pressure along to the firms. (I’ve written many times — see here, here, here, and here for examples — about the dynamics of “woke capital” and its government origins). Government should pressure businesses to comply with the law only through the proper channels of the legal system. But if you think this is all brand-new and that Trump is introducing new pressures rather than counter-pressures to what preceded him, you’re not living in the real world. The same goes if you complain that the behavior of private firms is being influenced by the mere threat of outside sanctions.

What I find more gravely objectionable in the Paul Weiss order is mixing and matching these three justifications and tying them to extreme remedies. This is precisely the game the Left plays: pile on the pressure from so many angles that an institution in practice cannot defend itself. The sanctions here included ordering the entire executive branch to take the following steps:

By definition, that last sanction falls disproportionately on subordinate lawyers who could have done nothing to prevent misconduct by the likes of Mark Pomerantz. Pomerantz has been around so long, he was already a prominent partner at his previous firm (Rogers & Wells) when I was in law school 30 years ago. Associates who graduated law school in the 2020s aren’t telling him what books to write.

These are excessive sanctions that no one man in a free society should be able to impose on a major business with thousands of employees without any sort of due process. They reflect the intersection of the imperial presidency, the progressive expansion of government into every form of business, a chief executive of low character, and a lot of accumulated demand to hit back at the left for things it never thought it would have to pay for. Three of those four things are bad; the fourth is a reason, but not a justification.

When the Stakes Get Real

Within a week of the Trump EO, Paul Weiss caved. Trump announced the deal on March 20. Brad Karp, the veteran litigator and Democratic fundraiser who leads the firm, met personally with Trump. Karp had a lot of material incentives to do so. He justified his decision in an email to the firm. He described the EO as “an existential crisis” that “could easily have destroyed our firm,” and emphasized his need to protect not just the firm but its clients and employees:

It brought the full weight of the government down on our firm, our people, and our clients. In particular, it threatened our clients with the loss of their government contracts, and the loss of access to the government, if they continued to use the firm as their lawyers. And in an obvious effort to target all of you as well as the firm, it raised the specter that the government would not hire our employees. . . .

First and foremost, we were guided by our obligation to protect our clients’ interests. . . . Even a victory in litigation would not be sufficient to do so, because our firm would still be perceived as persona non grata with the Administration. We simply could not practice law in the Paul, Weiss way if we were still subject to the executive order. . . .

Equally important, we were guided by our fiduciary duty to all of you — by our obligation, as stewards of the firm, to protect the livelihoods of the 2,500 lawyers and non-legal professionals who work at Paul, Weiss. That consideration — the need to ensure, above all, that our firm would survive — weighed extremely heavily on all of us, and especially on me, as the leader of the firm.

After all of the virtue-signaling and empty posturing by BigLaw firms such as Paul Weiss when they were risking nothing and earning plaudits for standing up for causes popular with their clients and peers, Karp had to remind his employees that courage actually costs something when you stand in the place that Paul Clement stood when he quit both King & Spalding and Kirkland & Ellis rather than drop unfashionably conservative clients: “It is very easy for commentators to judge our actions from the sidelines. But no one in the wider world can appreciate how stressful it is to confront an executive order like this until one is directed at you.”

Karp also carped that his competitors had no interest in a united front — exactly the collective-action problem that has long faced conservative businesses and governments when confronted with boycotts, government pressure, and the cancel-culture mob:

We were hopeful that the legal industry would rally to our side, even though it had not done so in response to executive orders targeting other firms. We had tried to persuade other firms to come out in public support of Covington and Perkins Coie. And we waited for firms to support us in the wake of the President’s executive order targeting Paul, Weiss. Disappointingly, far from support, we learned that certain other firms were seeking to exploit our vulnerabilities by aggressively soliciting our clients and recruiting our attorneys. . . . Clients had told us that they were not going to be able to stay with us, even though they wanted to.

Welcome to the party, pal.

The Terms of Surrender

What did Paul Weiss actually agree to? Three things, which Trump and Karp describe differently, and which in practice likely are not all that costly to Paul Weiss — or shouldn’t be. Moreover, it’s important to bear two points in mind about the conditions here.

One is that some of these terms are only tenuously connected to the ostensible grounds for the EO. It’s not surprising that Trump would use power for pretextual ends, but it remains a depressingly familiar pattern. The other is that these agreements are framed in general terms that are hard to police. That doesn’t necessarily mean that they will be ignored; Paul Weiss will have an incentive, so long as Trump is president, to appear to be complying and (perhaps more ominously) to be perceived as staying out of his way. But it will be all about perception in ways that are very much unlike how my brain as a lawyer (and probably Karp’s) thinks about settlement agreements or consent decrees as things that pair specific undertakings with specific consequences for a breach.

First, according to Karp, “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.” Trump says that “Paul, Weiss affirms its commitment to merit-based hiring, promotion, and retention, and will not adopt, use, or pursue any DEI policies. As part of its commitment, it will engage experts, to be mutually agreed upon within 14 days, to conduct a comprehensive audit of all of its employment practices.” Among the three conditions, this is the one most directly connected to the allegations in the executive order, and the one that most closely resembles how federal power has been used openly in the past to influence business behavior. It’s a thumb on a scale that has previously been thumbed in the other direction. Many knees have been bent this way before.

Agreeing to “follow the law” is a pretty minimal commitment, but engaging an outside monitor on the firm’s employment practices is likely to exercise at least some beneficial chilling effect on how openly Paul Weiss obsesses over race, gender, and sexual orientation in hiring. That’s progress.

Second, Karp says, “we reiterated our commitment to viewpoint diversity, including in recruiting and in the intake of new matters.” Trump is more fulsome:

Paul, Weiss agrees that the bedrock principle of American Justice is that it must be fair and nonpartisan for all. Our Justice System is betrayed when it is misused to achieve political ends. . . . Law firms should not favor any political party when it comes to choosing their clients. Firms also should not make decisions on whom to hire based on a person’s political affiliation. To do otherwise is to deny some Americans an equal opportunity for our services while favoring others. Lawyers abandon the profession’s highest ideals when they engage in partisan decision-making, and betray the ethical obligation to represent those who are unpopular or disfavored in a particular environment. . . .

Paul, Weiss affirms its unwavering commitment to these core ideals and principles, and will not deny representation to clients, including in pro bono matters and in support of non-profits, because of the personal political views of individual lawyers.

Karp insists about this and the third condition, however, that “the Administration is not dictating what matters we take on, approving our matters, or anything like that. We obviously would not, and could not ethically, have agreed to that.”

Now, first of all, there’s no reason why law firms cannot be partisan. It’s a free country, lawyers have always been engaged in politics, and they should be free to associate in a political fashion in their practice. Both political parties at the national and state levels tend to hire outside counsel who are zealously identified with one side.

What’s been more ominous is not the existence of partisan law firms but the kind of industry-wide groupthink that makes it harder for Republicans, conservatives, and their causes to get jobs or hire lawyers at all. It’s not the existence of diverse, partisan, or ideological firms that is the problem, but the cartel behavior of collectively shunning dissent. It should not be the case that the legal profession begins to resemble a political faction unto itself, attached to one side of the political spectrum and closed to outsiders. The perception of becoming one is precisely how the profession attracts this kind of disproportionate response.

There’s no easy or obvious solution, because much of the problem is cultural and client-driven, but it is true that if firms feel more external pressure to be seen returning to the days when it was considered good form to have some publicly known conservatives and Republicans in their own ranks, and to represent the occasional cause that can be pointed to as a “see, we represent both sides” example, that’s an improvement. And firm management (not just at Paul Weiss) being able to point to the big, bad president is one way of resisting pressure from clients who demand, say, that the firm not take religious liberty cases or gun-rights cases or represent pro-lifers.

On the other hand, being forced into representing clients you don’t believe in is not necessarily the best way for those clients to get good lawyers. But if you improve the climate within a firm of tolerance for politically conservative lawyers, you will have a ready pool of people who can handle those matters.

David Lat is skeptical that this is enforceable: “I suspect Paul Weiss’s official position is that they don’t currently ‘deny representation . . . because of the personal political views of individual lawyers.’ (And to the extent that they actually do this in practice, coming up with non-political reasons for denying representation isn’t hard.)” But it doesn’t need to be enforced at Paul Weiss or across the industry as if this was a law; there just needs to be a belief by BigLaw managers that it is good to be seen politically diversifying personnel and client representation. That said, the public commitment on this insulates the firm from external or internal pressures in the kind of situation that happened to Clement, where other clients or a vocal faction of junior lawyers demanded of his firm that he drop an existing representation (which is supposed to be a violation of professional ethics, but that didn’t stop the cancel-culture mob in its heyday).

Third, Karp says:

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. . . . We have agreed to commit substantial pro bono resources, in addition to the $130+ million we already commit annually, in areas of shared interest. We will continue all of the existing pro bono work we already do and will continue in our longstanding role as a leader of the private bar in the pro bono and public interest sphere.

Trump says that the firm “will take on a wide range of pro bono matters that represent the full spectrum of political viewpoints of our society, whether ‘conservative’ or ‘liberal’” and will do pro bono work “to support the Administration’s initiatives, including: assisting our Nation’s veterans, fairness in the Justice System, the President’s Task Force to Combat Antisemitism, and other mutually agreed projects.”

This is a subset of the previous set of commitments, although the “mutually agreed” part is troublesome. Big firms already have extensive pro bono practices, which provide good publicity and opportunities for training young lawyers; the state bar in New York and elsewhere increasingly demands that lawyers attest that they perform a certain amount of pro bono work. Paul Weiss has long been known for pro bono causes, so this is not the sacrifice of resources it may sound like.

Will this be a politically balanced portfolio of cases? I doubt it. Most likely, reading between the lines of Karp’s framing of the deal, Paul Weiss will balance out representation of aggressively left-wing causes in big-footprint impact cases by litigating for individual veterans’ benefits and working with the Anti-Defamation League. Still, this pledge probably makes it likelier that the firm’s pro bono committee will quietly pressure partners not to take on high-profile representations of, say, pro-Hamas campus protestors between now and January 2029.

Word has it that big firms such as Skadden are looking to proactively cut similar deals, and that their Wall Street clients are thinking the same way. It turns out that the bully-boy tactics of progressivism can run both ways.

I worked at a big firm in New York from 1996 to 2020, and saw and heard my share from friends around our competitors. The firms were always, collectively, left-of-center, especially in their pro bono practices, but they got a lot more monochromatically so over those years. (For my part, while I did some religious liberty work, I was on the Second Circuit’s Civil Pro Bono panel, so I mostly handled pro bono cases that were assigned to me by the court — a good way of never having to justify my clients). I spent a good deal of the decade from 2011–2020 watching the BigLaw industry become a lot less politically diverse while the client pressures mounted for sex and gender orthodoxy and “diverse” hiring that swiftly devolved into pulling people like me off cases and pitches for business. I was fortunate to work at a firm that had a vibrant tradition of political balance (and that for quite some time tolerated my high public profile as a conservative), and resultingly did not lurch as far as others in that direction, but nobody was immune to the pressures. They were deeply unhealthy and corrosive of the profession’s values.

A BigLaw-wide course correction was needed, and I confess that I share some of the emotional satisfaction of seeing this day come. As with so many things in the Trump era, one of the lessons ought to be that it should never have come to this.

But it is also an enormously dangerous path for the White House to be singling out and picking off particular private businesses and concentrating its immense coercive power in order to dictate who they can hire, what they can stand for internally and externally, and (in the case of lawyers) who they represent. George Washington, Abraham Lincoln, or Ronald Reagan would have been horrified to see the presidency used this way. Woodrow Wilson, Franklin Roosevelt, Bill Clinton, or Barack Obama would not have. A government big enough to do this to your enemies can and will do this to your friends — and to you. If we don’t take this moment to demand both smaller government and higher character in our leaders, we will get what we deserve, and deserve what we get.