Trump's Law Firm Orders Likely Having Little Effect on FCC

While numerous law firms have struck a deal with the Trump administration, Jenner & Block, WilmerHale and Perkins Coie are fighting back. None of the firms that signed agreements, which pledged to provide hundreds of millions of dollars' worth of free work on behalf of the administration, are headquartered in Washington, D.C.

Jenner is the only one of the firms opposing the orders that does substantial work representing clients at the FCC. Most recently, it represented the Wright Petitioners in their advocacy of prison-calling reform. Former FCC General Counsel Sam Feder is a co-chair of the firm’s communications, internet and technology practice. The other three co-chairs, John Flynn, Rebekah Goodheart and Trey Hanbury, are also FCC veterans.

University of Idaho administrative law professor Linda Jellum cited Shakespeare's Henry VI, Part II, in which a violent insurrectionist says, “The first thing we do is, let’s kill all the lawyers.” The context is that lawyers “can stop the people in power from doing what they want to do,” Jellum told us. “That’s what I see happening here with the Trump administration.”

“You’re going to have to be a very brave lawyer over the next four years to take on the Trump administration, because you’re going to be targeted,” Jellum added. The “benefit” to agencies like the FCC is that they can do whatever they want, “and there’s not going to be anyone challenging them.”

Public Knowledge Legal Director John Bergmayer characterized these "illegal orders" as “an attempt to intimidate law firms from representing clients and arguing positions that the administration does not like.” Much of what President Donald Trump's administration and FCC are doing “is so flatly illegal and unconstitutional that they’d rather attempt to intimidate law firms from bringing cases than try to defend themselves in court, where they are certain to lose."

Bergmayer said he admires law firms that are fighting back. “Some of the orders purport to bar lawyers from those firms from entering federal buildings, which presents obvious obstacles for attorneys who are representing clients before the FCC,” he said.

“One of the goals of the Trump administration's targeting of law firms is to instill fear that the clients of firms who refuse to play nice will suffer the effects when it comes to their dealings with the federal government,” said Daniel Deacon, an assistant law professor at the University of Michigan. “Whether that fear plays out in reality, and whether the fear alone causes firms who have refused to back down to lose business, is something to monitor.”

But other observers said law firms that fight the executive orders may burnish their reputation with clients.

The Real Story

New Street’s Blair Levin said in an email that many people are missing the real story about the law firms fighting Trump. “If you were a client, would you rather have a lawyer that (a) has mixed loyalty between the client and the government official” or “(b) whose only loyalty [is] to achieving the best possible result for the client?” Levin asked: “The answer is (b). If you pick (a) you will be in a position in which, if the lawyer makes arguments or uses the courts in ways the government official does not like, the lawyer will back down to save their own reputation.”

If law firm Paul Weiss were representing a client at the FCC and Chairman Brendan Carr was going to rule against them, “Carr knows he could call the White House and have word go forth to tell Paul Weiss to stand down and not appeal,” Levin said. “If you understand the real dynamics that occur, it is obvious that clients should be rushing to Jenner or Wilmer.”

In an opinion piece Thursday in The Hill, independent litigator Philip Allen Lacovara wrote, “The ironic fact is that, by seeking to buy near-term protection from a vengeful president, the law firms actually have weakened their professional standing and jeopardized their longer-term financial prospects.” A former general counsel at Morgan Stanley and a top lawyer at GE, Lacovara said he “would have grave doubts about using them to protect my interests.”

“As more firms face the prospect of executive orders, more of my colleagues in the bar will face the same choice: sue or settle? They should sue,” Jenner’s Adam Unikowsky wrote in The Atlantic this week. “To zealously represent their clients, law firms must remain genuinely independent from government,” he said: “A law firm that settles with the government is no longer independent from government -- particularly where, as here, the settlements give the government de facto veto power over which cases the law firm chooses to take on.”

The Trump executive orders are likely to fail in court, some legal experts said. In fact, challenges to the orders appear likely to succeed on many points, said American University administrative law professor Jeffrey Lubbers. Courts will probably rule that the administration has lots of control over granting security clearances, but the U.S. Supreme Court is likely to “look with a pretty jaundiced eye” at other provisions of the order, Lubbers said. Those that appear “to be a fundamental attack on representation” or seek to punish individual lawyers for doing their jobs won’t be received well by most judges, he added.

Firms that received the orders “continue to practice before federal agencies as usual,” said a regulatory lawyer who has discussed the issue with senior Trump White House officials and Trump alumni: They confirm “that advocacy before executive branch agencies in the ordinary course will continue without impairment.” At the end of the day, “there is a consensus among constitutional lawyers of all political backgrounds that these executive orders are bills of attainder and will be struck down by the courts as they are litigated through the appellate process,” the regulatory lawyer said. “We have had to explain these practical realities to clients to calm their jitters.”

Litigation

The U.S. District Court for the District of Columbia will hold a hearing April 23 on Perkins Coie’s motion for summary judgment and the U.S. government’s motion to dismiss the law firm’s challenge. The order against Perkins is “a personal vendetta that is antithetical to our constitutional order,” the law firm said in a filing Wednesday.

“The reality, which becomes starker with each successive executive order against a major law firm, is this: The President has embarked on an unconstitutional mission to retaliate against Perkins Coie and, more generally, to intimidate and muzzle the independent legal profession,” the law firm said. In its own opposition filing, the government said the order is well within the executive branch’s power. It “directs agencies to do what they should already be doing, declines to contract with entities who act inconsistently with valid social policies regarding discrimination, and calls for the lawful examination” of security clearances and government access, the filing said. The government made similar arguments in filings against Jenner & Block (see 2504090044).

In an amicus brief filed in the Perkins Coie case Monday, six legal ethics professors said the orders against law firms are “a profound threat to the ethical rules and norms that govern the legal profession.” A firm “that can survive only by staying in the President’s good graces has incentives that conflict” with the firm’s attorneys’ duties to remain loyal to clients and be truthful in court, the filing said. Firms that reach deals with the White House in exchange for pro bono legal services “may be taking actions that arguably run afoul of federal anti-bribery law.”

In an amicus brief in support of Jenner & Block, Loyola Law School professor Aaron Caplan argued that the orders are unconstitutional because they resemble “bills of attainder.” Such bills are specifically barred by the Constitution, and SCOTUS has previously found that post-Civil War laws targeting former Confederates and Red Scare-era acts of Congress must be struck down for violating the anti-attainder rules, Caplan said.