A handful of major law firms that sued after being targeted by Trump administration executive orders are finding growing support for their cause in the legal community—and in the courts.
Susman Godfrey, which is suing in the U.S. District Court for the District of Columbia over an April 9 executive order aimed at the firm, has rounded up amicus support from an array of law school students, law firms, legal advocacy organizations, former judges, and academics.
On Tuesday, a group of more than 1,100 law students submitted a legal brief supporting Susman Godfrey, asserting that actions taken by President Trump against the firm represent "government reprisal," Reuters reported.
The brief, known as an amicus curiae or "friend-of-the-court" filing, was presented in federal court in Washington, D.C. It was signed by 1,129 individual law students and 51 law student organizations, underscoring widespread concern within the legal community about the implications of the executive order.
Law Firm Partners United Inc., a professional association that includes more than 700 partners and shareholders at Am Law 200 firms, filed an amicus brief on Susman’s behalf on April 25. The same day, 20 litigation firms, 884 law firms, 777 small firm and solo attorneys, and 366 former judges also filed separate briefs in support of Susman. Some 775 law professors joined an April 23 amicus, and on April 29, 1,129 law students from 38 states did the same.
“Executive orders targeting Susman Godfrey and other law firms threaten the legal profession, the judiciary, and the rule of law itself,” the partners group wrote in its amicus brief. In their brief, the law professors added, “under the specter of the [executive order], any firm that has, or hopes to, retain clients who contract with the federal government will have to shape its practice to meet the whims of the President.”
Meanwhile, early judicial reactions to the administration’s orders have been largely skeptical—and in a few instances, withering. At an April 28 hearing, one judge hearing summary judgment arguments over whether an executive order against Jenner & Block should stand was heard to say, “Give me a break,” as the government’s lawyer spoke.
Facing Retaliation
Susman, Jenner & Block, Wilmer Cutler Pickering Hale and Dorr, and Perkins Coie have sued to overturn executive orders signed by President Donald Trump directing the government to strip lawyers at those firms of their security clearances, preventing them from entering federal buildings, and threatening federal contractors with penalties if they work with the firms on government business.
Each of the firms has represented clients in matters opposing President Trump, his policies, or political allies. Susman, for instance, is accused in the April 9 executive order of spearheading “efforts to weaponize the American legal system and degrade the quality of American elections” for its successful work on behalf of Dominion Voting Systems in a post-2020 election defamation case against Fox News.
“The executive order makes no secret of its unconstitutional retaliatory and discriminatory intent to punish Susman Godfrey for its work defending the integrity of the 2020 presidential election…[and] standing up for a company that was subjected to a flood of falsehoods wrongly accusing it of having stolen that election,” Susman argues in court documents.
Susman and the other firms are also being punished for maintaining diversity, equity and inclusion programs, which the Trump administration has deemed a form of racial discrimination.
Acquiescing to Demands
The amicus support Susman and other firms are receiving is not a given, considering the potential financial and professional damage individuals and organizations could face.
Nine Big Law firms have acquiesced to administration demands to avoid an executive order or to have one rescinded and have committed to spending $940 million on pro bono causes supported by the administration. Those firms include Paul, Weiss, Rifkind, Wharton & Garrison; Skadden Arps Slate Meagher & Flom; Willkie Farr & Gallagher, Cadwalader Wickersham & Taft; Milbank; Kirkland & Ellis; Allen Avery Shearman & Sterling; Latham & Watkins; and Simpson Thacher & Bartlett.
The firms argued that opposing Trump would have unleashed executive orders that could have harmed their clients and devastated their businesses. They have committed to pro bono efforts helping veterans and public servants (including military, law enforcement and first responders), fighting antisemitism, and ensuring fairness in the justice system. They have also agreed to commit to “merit-based hiring, promotion, and retention,” and to give “fair and equal consideration” to job candidates regardless of political ideology.
The chilling effect of the executive orders can be seen in a number of the amicus briefs filed in recent days.
The brief on behalf of Law Firm Partners United, for instance, notes that its members “are acting in their personal capacity and not on behalf of any firm or in their roles as law firm partners or shareholders.” While the organization claims more than 700 members “many of whom are globally recognized leaders in their respective fields,” 110 signed onto the brief by name (sans firm affiliation). According to Reuters, the signatories included three partners from Cadwalader, Simpson Thacher and Willkie Farr, firms which had reached deals with Trump.
The full lists of 884 law firms and 366 former judges were also absent from their briefs. However, hundreds of small firms and solos, law professors, and law students did include their names and affiliations.
The Amicus Arguments
The amicus briefs largely make the same arguments. The executive orders, they say, are a government reprisal against law firms for representing clients who are disfavored by the people and political party controlling the executive branch.
The orders, the amici note, unacceptably intrude on the professional independence of lawyers and on the rule of law, and if allowed to stand, will undermine the legal profession’s ethical principles and cause enduring damage to public trust in lawyers and the law.
“For courts and judges to fulfill their constitutional role, lawyers must be free to represent their clients without fear of governmental retribution on political grounds,” the judges wrote in their brief, filed by Donald Falk, an Oakland, Calif.-based appellate lawyer, Sara Kropf, a name partner with Washington, D.C.’s Kropf Moseley Schmitt, and San Diego-based law professor David McGowan.
Many of the amicus briefs quote liberally from Legal Services Corp. v. Velazquez, a 2001 U.S. Supreme Court case. In that case, the court rejected a congressional attempt to restrict legal aid lawyers from representing clients who wished to amend or challenge federal welfare laws.
Quoting Velazquez, Susman’s fellow litigation firms wrote in their amicus brief, “courts cannot act on their own; they must rely on lawyers to sue when the other branches of government break the law. ‘[A]n informed, independent bar’ is thus necessary for ‘[a]n informed, independent judiciary’ to play its role in the constitutional system.”
Court Reactions
To date, the courts have been sympathetic to law firm arguments that the administration has overstepped. Jenner, Susman, Wilmer, and Perkins have all won temporary restraining orders blocking the administration from moving ahead with significant portions of Trump’s executive orders.
At its hearing on April 28, Jenner asked Judge John Bates of the U.S. District Court for the District of Columbia to make the injunction permanent on First, Fifth, and Sixth Amendment grounds and also arguing that the executive order exceeds the president’s constitutional authority under Article II of the Constitution and violates the separation of powers. Michael Attanasio, a partner at Cooley representing Jenner, told Bates the executive order “reeks of unconstitutionality.” (Cooley partners David Mills, Kristine Forderer, and John Bostic also represent Jenner in the case.)
According to the news accounts of the hearing, Bates, who was appointed to the bench by President George W. Bush, appeared impatient with the legal rationale for the administration’s arguments. "Ordering guidance specific to Jenner & Block that limits access to federal buildings, access to federal employees, access to federal agencies — the rationales…that warrant that are what? Are what?" Bates asked.
Richard Lawson, the Department of Justice lawyer representing the administration, is arguing that the executive order is legal because it requires federal agencies to act in ways “consistent with applicable law,” Business Insider reported. Although no court or regulatory agency has found against Jenner, Trump, Lawson said, was justified in his actions because the firm “discriminates against its employees based on race.” It was this assertion that prompted Bates to retort, “give me a break.”
Trump’s March 25 executive order against Jenner focused on the firm’s ties to Andrew Weissmann, a former partner who played a key role as a prosecutor in the investigation of Russian interference into the 2016 election. In an earlier hearing, Bates appeared unconvinced about the administration’s argument regarding national security. “You’re not going to really tell me that having someone employed four years ago poses some kind of national security threat?” he said.
‘Red Scare’ Panic
The Jenner hearing followed similar hearings the previous week involving Perkins Coie and WilmerHale. In both, judges also appeared skeptical of the government’s arguments.
According to the Associated Press, U.S. District Judge Beryl Howell grilled the DOJ’s Lawson over the suspension of Perkins Coie lawyers’ security clearances, asking him to “respond to the suggestion that the blacklisting of disfavored law firms was similar to the ‘Red Scare’ panic over communism decades ago.”
Howell did not immediately rule, but is expected to do so soon. Bates also said a written opinion in the Jenner case would be forthcoming. A hearing on a permanent injunction in the Susman case will be held later in May.
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David L. Brown is a legal affairs writer and consultant, who has served as head of editorial at ALM Media, editor-in-chief of The National Law Journal and Legal Times, and executive editor of The American Lawyer. He consults on thought leadership strategy and creates in-depth content for legal industry clients and works closely with Best Law Firms as senior content consultant.
