Trump vs Law Firms

Participant seen holding a sign outside Willkie Farr law firm offices. Members and allies of the activist group Rise and Resist gathered outside NY-based law firms to protest their deals with Trump.th

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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning again, everyone. We'll return now to the issue of the rule of law, this time as it pertains to lawyers themselves. If lawyers seem less sympathetic maybe as a group or more insulated from the worst authoritarian power grabs that matter to your life or other people's lives like some we were talking about in our first hour, many democracy experts beg to differ and say the Trump administration executive orders barring the government from doing business with select law firms is a big, big, big deal to democracy.

Now, there are major law firms agreeing to some kinds of arrangements with the administration and some vowing to resist. We'll get a take on this from Harold Hongju Koh, Sterling Professor of International Law and former dean of the Yale Law School. He formerly served as legal advisor and senior advisor for the US State Department under Obama and Biden respectively, and assistant secretary for democracy, human rights, and labor under President Clinton. He is co-author of an article on the website Just Security called, No, the President Cannot Issue Bills of Attainder, and a related amicus brief in a lawsuit filed against the Justice Department by the law firm Perkins Coy, one of those that Trump's executive orders have targeted. Professor Koh, thank you for coming on. Welcome to WNYC.

Professor Harold Hongju Koh: Good to be here, Brian.

Brian Lehrer: Start at the beginning, if you would, for people not in the weeds on the law as it pertains to law firms. What are these executive orders that President Trump is issuing in these cases?

Professor Koh: Starting in late February, President Trump started to issue executive orders punishing law firms associated with individuals who had challenged him in the past. They were very explicitly retaliatory. Among the things that it does is it removes from those lawyers' security clearances so they can't defend their clients. It bars them from certain government buildings. It terminates their participation in government contracts. It has the Equal Employment Opportunity Commission investigate them for their policies of diversity, equity, inclusion in hiring. There are several problems.

First, it's blatantly illegal, not just because it violates rights, but because it violates particular provisions of the Constitution, including the one you mentioned, bills of attainder. Second, it enters into First Amendment space and says that lawyers can't defend unpopular defendants. This is such a fundamental feature of American life, going back to John Quincy Adams defending the defendants in the Boston Massacre, people being defended who were accused of being spies. Everybody deserves a lawyer. If you intimidate their lawyer, they can't get due process of law.

Brian Lehrer: Let's take the case of Perkins Coy as an example, and I'll read because I'll bet a lot of listeners haven't heard it. From Trump's executive order, it says in part, "The dishonest and dangerous activity of the law firm Perkins Coy LLP has affected this country for decades. Notably in 2016, while representing failed presidential candidate Hillary Clinton, Perkins Coy hired Fusion GPS, which then manufactured," his claim manufactured, "a false dossier designed to steal an election."

"This egregious activity is part of the pattern. Perkins Coy has worked with activist donors, including George Soros, to judicially overturn popular, necessary, and democratically enacted election laws, including those requiring voter identification. In one such case, it says a court was forced to sanction Perkins Coy attorneys for an unethical lack of candor before the court." That's from Trump's actual executive order with respect to that law firm. Where would you begin, Professor Koh, to either fact-check or dispute some of that characterization of Perkins Coy per se, or the idea of the executive order, even if they did everything the President said they did?

Professor Koh: Well, it sounds like a judgment, but it's an accusation. What Trump has done is set himself up as judge, jury, and prosecutor and saying someone is guilty with no chance to prove themselves innocent. If that scares you, it's because your name could be substituted everywhere that the word Perkins Coy is and that such an order be issued tomorrow.

You'd have no opportunity to defend yourself or to disprove those claims. These sanctions begin immediately. One reason we call it a bill of attainder is that this was exactly the kind of thing that the English king used to do. Pick out an enemy and just punish them. It was precisely because we didn't want these kings to be acting on whim or grievance to retaliate against people who don't do their bidding that the Constitution said there shall be no bills of attainder.

You can't just name people and punish them. That's something for the courts to do, not for the executive to do, which means that the order is unauthorized. It violates the separation of powers because it puts the President in the role of the courts. It violates an explicit prohibition against doing exactly what they've done, namely, pick people out for punishment based on allegation and not proof.

Brian Lehrer: By the way, I stand correct. On the pronunciation of that law firm, I heard you say it. A listener immediately texted to slap my wrist. It's Perkins Coie, not Coy. C-O-I-E, but pronounced "cooey." The line that most jumped out at me from that paragraph from the executive order that I read was Perkins Coie has worked with activist donors, including George Soros, to judicially overturn popular, necessary, and democratically enacted election laws, including those requiring voter identification. To me, Professor, the President just seems to be saying flat out that this law firm has represented positions on issues Trump disagrees with and that's reason enough to ban them. Do you read it that way?

Professor Koh: Exactly. Could you imagine if you turned it around and the next president punished somebody because of their connection to Elon Musk or whoever gave them money or that a law firm that represented Trump in one of his lawsuits is suddenly punished for that? That is exactly the kind of thing that's not allowed by our Constitution. We don't have a Constitution where the President can, on his whim or at his grievance or because of some gripe about what happened in the past, just pick out people and say, "You're next."

After Perkins Coie, they went after Paul, Weiss law firm. They went after WilmerHale. They went after Jenner & Block. They went after Susman Godfrey. In fact, when Susman Godfrey, which is a law firm in Houston, helped produce the brief that we filed, an hour later, they got an executive order. Now, they also sued Fox News successfully about the Dominion Voting Systems' false story, but it shows that they just have a list of enemies and they're going down that list issuing bills of attainder against them.

Brian Lehrer: Listeners, we can take a few phone calls for Yale Law professor and former dean Harold Koh, especially from other lawyers in this case at 212-433-WNYC. Lawyers, what kinds of discussions are you having at your law firms if you're able to listen at this time of day even if you work for a law firm about what the Trump executive orders in your field mean for you or for democracy writ large or anything else you want to say or ask Professor Koh? 212-433-WNYC, 212-433-9692, call or text. What does the executive order actually stop law firms from doing? They're not banned from opposing the government in court, again, I presume. What would the executive order actually do to any of these firms?

Professor Koh: Well, for example, take the security clearance provisions. If someone whose defense is, "I was doing something classified that was in support of US national interest," the defense lawyer needs to be able to see the evidence that proves that they were acting lawfully. If they don't have security clearance, they can't do the representation. It's forcing the defense lawyer to act with one-and-a-half hands behind their back. You can't have a fair trial where the prosecutor has free rein and the defense lawyer is not able to do things.

Secondly, by cutting off government contracts, it means that if you continue the representation, you're not going to get more work. That could destroy a law firm that does a lot of work on behalf of the government. Third, it says you can't enter a government building. Suppose your work is administrative law. What you do all day is meet with officials in various government offices in New York or in DC.

You can't even go in. That means that the lawyer who would otherwise be hired by the client can't get hired because they are physically being barred. It's a form of discrimination based on their criticism of the government. This is a country in which it's very fundamental that we have a right to say what we want, to criticize those in power, and to not suffer arbitrary consequences for that without due process of law.

Brian Lehrer: Catherine in Oyster Bay, you're on WNYC. Hi, Catherine.

Catherine: Hey, longtime listener. I know everyone says it, but it's true. I've never called before. I am not an attorney myself, but I do come from a family of attorneys. I just wonder, why do these law firms cave if it's so blatantly illegal what they're doing? [chuckles] I just want to know that. Is there any sense to them caving to the Trump administration executive orders and negotiating with them? Thank you. I'll listen in to the answer.

Brian Lehrer: Thank you for your call and your question, Catherine. It's true that different law firms are having different reactions to these executive orders against them, right, Professor?

Professor Koh: Yes. Well, I think, initially, they thought that Trump would keep his part of the bargain. If they agreed to certain things, they were in the clear. It turned out that he did not see these as deals or enforceable agreements. He saw them as indentured servitude. He could keep specifying more and more terms over time and have them represent the people that he wants, which means that a law firm has turned over its program of who they represent to the government.

That's the kind of thing that happens in authoritarian societies. I think what's going on now is that the law firms are starting to realize that they've been had and that they made a deal with someone who was going to keep ratcheting up their side of the bargain. I think it fundamentally goes to something that you learn when you're in the schoolyard, Brian. If you get confronted by a bully and you cave so they go away, they'll come back and bully you some more. That's exactly what's been going on here.

Brian Lehrer: What was in some of these deals? I'm looking at a New York Times op-ed from a couple of weeks ago, Our Law Firm Won't Cave to Trump. Who Will Join Us? That was written by the three principals from the law firm of Keker, Van Nest & Peters. It was obviously a response to some other law firms who they saw as caving. What did these cavings actually entail? What were these deals that you're saying Trump as the bully is now going beyond?

Professor Koh: Well, I think the bigger the firm, the more leverage points the administration had in on them. Often what happened is the deal-making side of the firm said, "We won't be able to do half of our business because it involves our having security clearances or our getting government contracts or being able to access federal government facilities." The other side of the firm said, "We don't like it, but we understand."

I think at the time, they were led to believe that if they made this deal, the government would go away. In fact, Trump then started saying, "Well, maybe we could tell them to do this, maybe we could tell them to do that." In which case, he's created a law firm or a collection of a war chest of lawyers who are supposed to do his bidding. Now, they pledged to do various kinds of pro bono activities.

First, it was $40 million. Now, it's up to $100 million per firm. They've announced that they want to get to a war chest of $1 billion of free legal representation, which is an alternative Justice Department, which operates at the behest of the Trump administration. My view is that these agreements, as they're called, are not enforceable. They were made through extortion. The terms were not fixed at the time. There is no third party to monitor them. I don't believe that these firms are actually bound by what they did.

Brian Lehrer: Last question. I see your amicus brief was filed this month with 27 former senior government officials of both political parties from the last seven presidential administrations in the case of Perkins Coie versus the US Justice Department. How's that case going so far, and then we're out of time?

Professor Koh: Well, it's moving to a preliminary injunction hearing today, Brian, April 21st. If it happens, as we hope, the court has been inundated with briefs on the side of Perkins Coie. They will grant a permanent injunction against this order and they will grant summary judgment against the government, which means that the order is dead. Of course, the government can appeal. My guess is that this and the other law firm cases will be up at the Supreme Court before the end of the year.

Brian Lehrer: Harold Hongju Koh, professor and former dean of the Yale Law School. Thank you so much for joining us today. We really appreciate it.

Professor Koh: Thank you, Brian.

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