All the President’s Lawyers Redux: Attack on the Legal Profession
I could not resist. In the second installment of my All the President’s Lawyers Redux series, I am writing about the Trump administration’s attack on the legal profession, a now frequent subject of national reporting.
Our public interest friends were perhaps the first group to be hit by the Administration’s actions when offers to join Honors Programs across the federal government were rescinded following President Trump’s announcement of a hiring freeze on federal jobs on January 20, 2025.[1] Although the announcement was not targeted at lawyers, in particular, it was no less devastating to our profession to see such promising talent stymied.
But the attacks have grown more direct since then. The Trump administration shocked the legal profession on February 25 when it issued a memorandum ordering the federal government to suspend security clearances for all attorneys at the firm Covington & Burling LLP (Covington) who served as pro bono counsel for Special Counsel Jack Smith pending a review of the firm’s alleged “weaponization of the judicial process.”[2] The administration further announced it would “take such actions as are necessary to terminate any engagement” and “review all Government contracts” with the firm “to the maximum extent permitted by law.” It is not apparent—at least publicly—that any subsequent actions have been taken by the firm or the Trump Administration in response to this memorandum.
President Trump took even more aggressive actions against Perkins Coie LLP (Perkins Coie) on March 6 when it accused the firm in an executive order of “representing failed Presidential candidate Hillary Clinton, [thereafter hiring] Fusion GPS, which then manufactured a false ‘dossier’ designed to steal an election”; “work[ing] with activist donors including George Soros to judicially overturn popular, necessary, and democratically enacted election laws, including those requiring voter identification”; and “racially discriminat[ing] against its own attorneys[,] staff, and [] applicants.”[3] The executive order further pilloried the firm’s DEI policies for displaying “disrespect for the bedrock principle of equality,” thereby demonstrating “good cause to conclude that they neither have access to our Nation’s secrets nor be deemed responsible stewards of any Federal funds.” The executive order then suspended all active security clearances associated with the firm; instructed the termination of contracts with the firm “to the maximum extent permitted by applicable law”; “limit[ed] official access [to] Federal Government buildings”; and froze any hiring of employees of the firm. The executive order also directed the Chair of the Equal Employment Opportunity Commission to review “large, influential, or industry leading law firms[’]” compliance with Title VII of the Civil Rights Act of 1964.
Perkins Coie responded swiftly. It solicited the services of Williams & Connolly LLP, who promptly filed a complaint on March 11 seeking to enjoin the Executive Order (except the provisions revoking security clearances and directing investigations of Title VII). In unambiguous language, the complaint asserted the executive order’s “plain purpose is to bully those who advocate points of view that the President perceives as adverse to the views of his Administration” and defended the firm’s “commit[ment] to a resolute defense of the rule of law, without regard to party or ideology.”[4] The complaint proceeded to dismiss the executive order for imposing punishments “ex post facto—the President having already supposedly adjudicated the matters . . . without giving notice to Perkins Coie and without giving Perkins Coie an opportunity to be heard and contest these and other false and disparaging claims made in the Order.”[5] The complaint argued the executive order violates separation of powers; violates procedural due process and “the substantive due process right to practice one’s professional livelihood”; “denies the firm the equal protection of the laws guaranteed by the due process clause of the Fifth Amendment”; violates the First Amendment for a host of reasons; and “violates the right to counsel afforded by the Fifth and Sixth Amendments.”[6] Judge Beryl Howell of the U.S. District Court for the District of Columbia equally expediently issued a temporary restraining order in a brief opinion enjoining enforcement of the challenged provisions of the executive order.[7]
Then the administration targeted Paul, Weiss, Rifkind, Wharton & Garrison LLP (Paul Weiss) on March 14, identifying it as one of many “[g]lobal law firms [that] have for years played an outsized role in undermining the judicial process and in the destruction of bedrock American principles.”[8] The Trump administration accused the firm in its executive order of “engaging in activities that make our communities less safe, increase burdens on local businesses, limit constitutional freedoms, and degrade the quality of American elections.” Curiously, rather than cite specific or familiar criticisms against law firms common in public discourse—for example, for representing Big Pharma in opioid marketing defense[9]—the administration instead called out a Paul Weiss partner who “brought a pro bono suit against individuals alleged to have participated in the events [of January 6, 2021],” and Mark Pomerantz, a former Paul Weiss partner who purportedly “left Paul Weiss to join the Manhattan District Attorney’s office solely to manufacture a prosecution against [President Trump].” Finally, the firm was accused of “discriminat[ing] against its own employees on the basis of race and other categories prohibited by civil rights laws” through its diversity, equity, and inclusion policies. The order concluded with a series of punitive measures similar to those enacted against Perkins Coie.
On March 21, the White House revealed that Paul Weiss capitulated and negotiated a deal with the Trump Administration to rescind the previous executive order in exchange for Paul Weiss committing to provide $40 million in pro bono legal services to support initiatives preferred by the Administration, like “assisting our Nation’s veterans” and “combating anti-Semitism,” and agreeing to terminate diversity, equity, and inclusion initiatives.[10] The deal was the product of an overture by Paul Weiss chairman Brad Karp, who reportedly visited the White House to negotiate with President Trump directly.[11]
Firms were not the only organizations targeted by the administration. Indeed, on February 17, Interim U.S. Attorney for the District of Columbia Edward R. Martin, Jr. directed a letter to Dean William Treanor of Georgetown Law School stating that it was “unacceptable” that the law school “continues to teach and promote DEI.”[12] He then requested a response to inquiries regarding whether the law school would remove DEI from its curriculum, albeit coupled with a threat that “no applicant for our fellows program, our summer internship, or employment in our office who is a student or affiliated with a law school or university that continues to teach and utilize DEI will be considered.”
Dean Treanor responded by letter on March 6. He wrote:
The First Amendment . . . guarantees that the government cannot direct what Georgetown and its faculty teach and how to teach it . . . Given the First Amendment’s protection of a university’s freedom to determine its own curriculum and how to deliver it, the constitutional violation behind this threat is clear, as is the attack on the University’s mission as a Jesuit and Catholic institution.[13]
Then, on Friday, March 22, the Trump Administration called out not just a few firms by name, but the entire legal profession. In a memorandum to Attorney General Pam Bondi, President Trump criticized lawyers and law firms for “engag[ing] in actions that violate the laws of the United States or rules governing attorney conduct . . . [and] threaten[ing] our national security, homeland security, public safety, [and] election integrity.”[14] He followed with a brief lesson on the Federal Rules of Civil Procedure (FRCP), a recurring theme in this series. He provided a gloss over FRCP 11(b), which requires that complaints be filed not “for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation”; are “warranted by existing law” or make a “nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law”; and make “factual contentions” or denials with “evidentiary support.” Violations of FRCP 11(b) are subject to sanctions under FRCP 11(c). President Trump also helpfully cited Rule 3.1 of Model Rules of Professional Conduct, providing a second lesson on professional responsibility. Rule 3.1 states: “A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.”
Following these helpful lessons, President Trump directed Attorney General Bondi “to seek sanctions against attorneys and law firms who engage in frivolous, unreasonable, and vexatious litigation against the United States or in matters before executive departments and agencies of the United States.” He further directed the Attorney General “to take all appropriate action to refer for disciplinary action any attorney whose conduct in Federal court or before any component of the Federal Government appears to violate professional conduct rules.”
First, a quick legal analysis. It is important to remember that the Attorney General does not have legal authority to unilaterally issue sanctions under the Federal Rules of Civil Procedure. Only courts can issue sanctions.[15] The Attorney General can, however, file a motion for sanctions against violating conduct with the court.[16] In that sense, however, the memorandum merely confirms a power that the Attorney General already had under appropriate circumstances, while signaling a policy to more frequently employ such motions during the course of litigation in which the federal government is a party. Ironically, however, it seems as though a motion for sanctions filed against opposing counsel itself qualifies as a “written motion” which “must be signed by at least one attorney of record in the attorney's name” certifying that the motion “is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.”[17] Therefore, “frivolous, unreasonable, and vexatious” motions for sanctions are themselves not immune from the threat of sanctions. At the end of the day, the courts—not accountable to the President’s memorandum—must rule on these motions for sanctions. Rules of professional conduct are likewise enforced by state bar associations, also not subject to the memorandum. This should provide at least some solace.
But there is still cause for concern. The memorandum says more than that it will monitor and encourage compliance with the Federal Rules of Civil Procedure or rules of professional conduct through the threat of motions for sanctions or reports of professional misconduct. The President also warned of “additional steps that may be taken” by the administration itself for “conduct by an attorney or law firm in litigation against the Federal Government [that] warrants seeking sanctions or other disciplinary action.” This threat does not depend on adjudication by judges or state bar associations, but instead commits the Executive Branch to take retaliatory action against conduct it deems to satisfy its own standard of “frivolous, unreasonable, and vexatious.” The chilling effect of such language is not trivial.
To get an idea of what conduct might satisfy this standard, one need not look beyond the memorandum itself. Much like the executive orders against Perkins Coie and Paul Weiss, President Trump highlighted in this memorandum examples specific to himself, rather than cite a host of legitimate public criticisms against the legal profession and misconduct by lawyers. He first called out Marc Elias by name for his “deep[] involve[ment] in the creation of a false ‘dossier’ by a foreign national designed to provide a fraudulent basis for Federal law enforcement to investigate [] Presidential candidate [Trump] in order to alter the outcome of the [2016] Presidential election.” He then obliquely referenced his recent criticisms against the legal challenges to his direction to deport alleged Venezuelan gang members under the Alien Enemies Act of 1798: “The immigration system—where rampant fraud and meritless claims have supplanted the constitutional and lawful bases upon which the President exercises core powers under Article II of the United States Constitution—is likewise replete with examples of unscrupulous behavior by attorneys and law firms.” He did include one claim that the immigration bar “coach[es] clients to conceal their past or lie about their circumstances when asserting their asylum claims.” But barring this last example, President Trump was focused on legal challenges pursued against himself or his official actions as President.
Detailing these accounts, I am reminded of the lecture Pamela Karlan delivered earlier this semester titled “Unaccountable,” where she described the erosion of institutional mechanisms for maintaining accountability in the federal government. She concluded her remarks on a more personal note, posing the question “[T]o what and to whom should we be accountable in our lives as lawyers? And just as important, what will we do to hold the government accountable?”
“I don't think this is an easy question,” said Karlan. Nor is it an easy question here. These recent actions by the Trump administration can be characterized as one set in a series of actions aimed at chilling the vestiges of accountability. Already engaged in an effort to remove mechanisms of accountability from within the federal government, the President is also focused on removing mechanisms from without.
We as law students—I hope—are committed to the project of upholding the Constitution and the rule of law in our democratic society, but also of upholding our own ethical commitments to the profession. We should not shy away from legitimate legal challenges in the course of zealous and ethical advocacy on behalf of clients against unlawful or unconstitutional conduct by government officials for which our clients are legitimately injured, even in the face of threatened retaliation.
I walked through each of the accounts of specific actions brought by the Trump administration against legal institutions for a reason. Each institution demonstrated a different style of response: silent inaction (Covington); vocal inaction (Georgetown); silent negotiation (Paul Weiss); and litigation (Perkins Coie). The law firms we all will be working for may face similar choices in the coming years and will need to determine an appropriate course of action under the circumstances. And while we will likely not be responsible for making those decisions, we do have a voice, and we should exercise that voice to both defend the rule of law and uphold our ethical and professional commitments. There is nothing mutually exclusive about these dual commitments of accountability—in fact, they are self-reinforcing. Effective, ethical, and zealous advocacy for clients seeking to hold the federal government accountable for illegal and unconstitutional action strengthens the rule of law and emboldens our profession.
[1] Memorandum , Hiring Freeze, The White House (Jan. 20, 2025), www.whitehouse.gov/presidential-actions/2025/01/hiring-freeze/.
[2] Memorandum, Suspension of Security Clearances and Evaluation of Government Contracts, The White House (Feb. 25, 2025) www.whitehouse.gov/presidential-actions/2025/02/suspension-of-security-clearances-and-evaluation-of-government-contracts/.
[3] Executive Order No. 14230, Addressing Risks From Perkins Coie LLP, The White House (Mar. 6, 2025), www.federalregister.gov/documents/2025/03/11/2025-03989/addressing-risks-from-perkins-coie-llp.
[4] Complaint at 2, Perkins Coie LLP v. U.S. Dep’t of Justice (D.D.C. 2025) (No. 1:25-cv-00716).
[5] Id. at 3.
[6] Id. at 5–6.
[7] Perkins Coie LLP v. U.S. Dep’t of Justice, No. 1:25-cv-00716 (D.D.C. 2025).
[8] Executive Order No. 14237, Addressing Risks from Paul Weiss, The White House (Mar. 14, 2025), www.federalregister.gov/documents/2025/03/20/2025-04867/addressing-risks-from-paul-weiss.
[9] This is a general example. I am not attributing this criticism to Paul Weiss, specifically.
[10] Executive Order, Addressing Remedial Action by Paul Weiss, The White House (Mar. 21, 2025), www.whitehouse.gov/presidential-actions/2025/03/addressing-remedial-action-by-paul-weiss/.
[11] Eric Mulvaney, Trump Rescinds Order Targeting Law Firm Paul Weiss, The Wall Street Journal (Mar. 20, 2025 9:06 pm), www.wsj.com/politics/policy/trump-rescinds-order-targeting-law-firm-paul-weiss-2bda2791.
[12] Still finding the source.
[13] Still looking for the source.
[14] Memorandum, Preventing Abuses of the Legal System and the Federal Court, The White House (Mar. 22, 2025), www.whitehouse.gov/presidential-actions/2025/03/preventing-abuses-of-the-legal-system-and-the-federal-court/. Many national new sources reported the story on March 21 when the memorandum was announced.
[15] Fed. R. Civ. P. 11(c)(1) (“If, after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated, the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation.”).
[16] Fed. R. Civ. P. 11(c)(2).
[17] Fed. R. Civ. P. 11(a)–(b).
