I have been a lawyer for almost 50 years. During the first two decades of my career, along with colleagues, I represented clients charged with heinous offenses. We defended those clients in criminal trials in the state and federal courts in Upstate New York.
During the next two decades I presided over some of the most serious criminal trials throughout Upstate and Northern New York. During that period, I was able to observe the next generation of lawyers courageously defend those individuals whom Clarence Darrow once described as the “damned and the despised.” We did it without regard to our personal feelings about the client or the crime because it was part of what we were sworn to do when we took the oath to become lawyers.
During the past month President Trump has targeted several major law firms with executive orders punishing them for employing lawyers that were averse to him during legal proceedings and investigations or because of the clients that they represented. These executive orders imposed sanctions that include blocking their attorneys from government buildings and stripping them of their security clearances.
The first firm targeted, Perkins Coie, sued Trump and successfully obtained a temporary court order declaring this executive threat was likely unconstitutional. Trump threatened to levy similar punitive sanctions on the firms Jenner &Block and Wilmer Hale, another large law firm, who chose to fight back and obtained injunctive relief similar to Pettit Coie’s. Susman, Godfrey the latest firm to join this fight was also granted this injunctive protection. Most regrettably, other large firms bowed to Trumps threats.
The firms of Paul, Weiss, Rifkind, Wharton & Garrison; Skadden, Arps, Slate, Meagher and Flom; and Willkie, Farr, and Gallagher all opted to “settle” with Trump by collectively pledging to perform two-hundred forty million dollars in pro bono work for causes of Trumps choosing, along with other concessions.
In a separate line of attack, Trump ordered the Equal Employment Opportunity Commission (EEOC) to investigate the law firms, Kirkland &Ellis; Latham & Watkins; A&O Sherman; Cadwalader, Wickersham & Taft; and Simpson, Thacher &Bartlett for employment discrimination. Their sin was that they may have employed Diversity, Equity, and Inclusion (DEI) in their hiring practices. Rather than celebrate these efforts to broaden the profession by adding women, African Americans and other historically shunned groups to the profession, they capitulated to Trump by agreeing to provide another six-hundred million dollars in pro bono legal services to causes of Trump’s choosing in exchange for the investigations being terminated.
Trump gleefully celebrated these capitulations declaring, “They’re all bending and saying, “Sir, thank you very much. Law firms are just saying where do I sign where do I sign.”
What makes this capitulation, so disheartening is that each of these firms employ attorneys of the highest caliber, outmatching the MAGA sycophants now heading the Justice Department. If they had pooled these talents with the firms that have successfully resisted Trump this disgraceful episode would be over.
One wonders what the reaction will be inside these firms if Trump orders them to represent the Proud Boys, Oath Keepers or some other far-right militia?
From my perspective, Trump is extracting these multi-million-dollar benefits by threatening sanctions and that amounts to the crime of Extortion as defined in Title 18 United States Code Section 872 and Bribery, in violation of Title 18 USC Section 201(2). According to news accounts, Trump has declared that the pro bono work required by these “settlements” will be determined by his whims and wishes and and do not appear related to any compliance with any EEOC action.
In my experience the crime of Extortion usually requires that a victim be powerless in the face of threatened conduct. These law firms that “settled” when faced with these threats have surrendered their integrity and the stain on their reputations will last far beyond the time when their multi-million-dollar commitments have been exhausted.