The professional class of Washington often repeats the refrain that the Trump administration is not normal. Since January, the lawyerati — especially at the dominant, large law firms in the nation’s capital — have done plenty to signal their opposition.
They’ve mobilized against immigration crackdowns. They’ve challenged President Donald Trump’s transgender military ban. They’ve stood up for Twitter users blocked by Trump. They’ve questioned the president’s business interests. They’ve publicly denounced the pardon of a sheriff who was in contempt of court. And, in guarded language, law firms decried the president’s equivocation of white supremacists and anti-hate opposition.
The list seems likely to grow as long as Trump is in office. But is the legal industry really in uncharted territory? Despite the growing number of actions they’ve taken, even Trump’s foes say not yet.
Jack Rakove, a Pulitzer Prize-winning historian and Stanford University professor, has confronted the question while probing Trump’s presidential ethics. Rakove signed onto an amicus brief for legal historians in the federal case that challenges Trump companies’ earnings and the conflicts of interest that may arise from them while he is a public officeholder.
If there’s a difference in the legal establishment’s response to Trump, it’s a matter of intensity, Rakove suggests.
“In one sense, the Trump administration is so offensive on so many grounds. Its policy-making is so suspect, and its political impulses seem so vicious and small-minded,” Rakove says. “On the other hand, it seems to me there has been over the last decade or decade-and-a-half this ramping up of litigation.”
Status Quo — Or No?
Cases that push back against an administration’s policies are, historically, as common to Washington as steak-and-brown-liquor client dinners. There were efforts during past presidencies to preserve the rights of detainees at Guantanamo Bay, for example, and legal challenges that paved the way for same-sex marriage.
Or take the recent efforts of two quintessential D.C. firms: Covington & Burling and Wilmer Cutler Pickering Hale and Dorr. Both are challenging attempts by the administration to cut federal funding for so-called sanctuary cities. They’re also both challenging the president’s ban on transgender people in the military.
But both firms have long taken up civil rights work — including LGBT and immigration rights causes — and not only when a Republican held the Oval Office. Paul Wolfson, the Wilmer partner handling the transgender ban case, says little has changed in his firm’s approach. Wilmer is working on the case with Foley Hoag on behalf of two gay rights advocacy groups.
“It doesn’t necessarily represent anything different from anything we would have done under any other administration,” Wolfson says. “It was obvious to us this was a situation where there was serious need and people would be suffering harm.”
Wolfson’s colleague, Wilmer partner Jamie Gorelick, spearheaded briefs for immigrant rights groups in sanctuary city cases from San Francisco and Santa Clara, California. Gorelick previously represented presidential advisers Ivanka Trump and Jared Kushner on their federal disclosures and says those client representations don’t preclude her from working on federal policy challenges.
As the year progresses, firms are devoting more of their litigators’ time — millions of dollars’ worth — to cases that oppose Trump.
Covington’s matters touch on nearly every major policy challenge against the president. That includes representing Los Angeles in a sanctuary city case and the University of California school system against the president’s previously announced rollback of immigration protections for undocumented children. The firm also brought a class-action case against Joe Arpaio and filed a recent brief disagreeing with the Justice Department’s stance toward the pardoned Arizona sheriff.
Even weeks before Trump took office, Covington partner Eric Holder Jr., Obama’s first attorney general, inked a $25,000-a-month contract with the California Legislature to examine ways the state could oppose Trump, an arrangement that ended after four months.
Conversely, Covington represents former Trump National Security Adviser Michael Flynn, who is under investigation, and the firm had challenged the previous administration on behalf of detained undocumented immigrants fleeing violence in Central America. Another Covington partner worked during the Obama years to roll back historical policies that excluded transgender people from the military.
“It’s obviously a different posture when you’re advocating to change an existing policy,” says Mitch Kamin of Covington. The new transgender ban challenge stands out, he says, because “litigation wasn’t needed the last time around, and it’s really the tool that’s required here.”
Jenner & Block, another corporate defense firm with a substantial D.C. presence, is challenging Trump’s use of Twitter after he blocked users from following and messaging his account. The case tests First Amendment principles — familiar territory for Jenner.
“This is just an application of work we had done before, with a new set of facts,” Amunson says.
Though they’re largely a socially progressive bunch, corporate lawyers are just as capable of clustering behind conservative politics. The Clean Power Plan, for instance, during the Obama years prompted a parade of large law firms to join the opposition.
Even so, Trump-era legal challenges can feel like a lopsided seesaw. Large firms with surprising swiftness are signing on to cases and briefs that challenge the president.
For instance, firm pro bono departments sprung into action following Trump’s first executive order on travel hours after the president signed it. The order banned citizens from seven Muslim nations from entering the U.S. Thousands of lawyers rushed to airports around the country to help detained travelers, and law firms like Mayer Brown and Kilpatrick Townsend & Stockton peppered courts with emergency petitions that January weekend.
Former acting U.S. solicitor general Neal Katyal, a partner at the global firm Hogan Lovells, filed a challenge on behalf of his client, the state of Hawaii, days after the president announced the ban, and stuck with it after Trump revised his order.
More than a decade ago and while he was still a law professor at Georgetown University Law Center, Katyal defended Osama Bin Laden’s former chauffeur over his court proceedings in Guantanamo Bay after Sept. 11, 2001. Looking back, he remembers how unpopular it was to oppose the Bush administration’s authority. At first, Katyal couldn’t get a law firm to help him, he says, then eventually Perkins Coie signed on. Thirty-eight other law firms followed after Katyal won the case in federal district court, he recalls. The Supreme Court ultimately supported his side.
When the president revised his ban and Hawaii wanted to challenge it, Hogan Lovells’ leadership and firm clients were already on-board, Katyal says.
“It’s a lot easier to represent the sovereign state of Hawaii than it is to represent Osama Bin Laden’s alleged driver,” Katyal says. “My view on any case like this, when you’re fighting the executive, [is that] your duty is to do it not for politics but for standing up for the rule of law. That’s the only way to get Big Law involved.”
Trump’s actions and words seemed to startle Washington’s legal establishment at least three times this year. Lawyers piped up after the president pardoned Arpaio for being convicted in criminal contempt of court, when Trump blamed “all sides” for the race-driven violence in Charlottesville, Virginia, and earlier when Trump said in February a ruling on the travel ban came from a “so-called judge.” “You can criticize an opinion. You can’t criticize a judge,” says Hilarie Bass, president of the American Bar Association and Greenberg Traurig’s co-president. “Any time any politician criticizes a judge on a personal level, the American Bar is going to stand up against that.”
Bass wouldn’t go as far as to say the ABA opposes the president. “We talk about policies, not politicians,” she adds, following her statement on the Arpaio pardon. “I decided to speak out because I spend a lot of time enhancing the public’s trust in the justice system. Anything that serves to undermine that, we will speak out.”
Law firms and their institutional leadership sliced at the administration with similar caution in August following the president’s reaction to the white supremacists’ rally in Charlottesville, which left a protester — legal assistant Heather Heyer — dead. More than a dozen large firms released statements that asserted commitments to diversity, inclusion and pro bono work. Yet among them, only Marty Lipton of Wachtell, Lipton, Rosen & Katz, wrote that Trump, by name, was part of the problem.
The legal industry’s Rubicon may run straight through Robert Mueller III’s investigation of the president and his campaign’s ties to Russia. Deputy Attorney General Rod Rosenstein and Senate Judiciary Committee Chairman Chuck Grassley have both indicated they wouldn’t tolerate a decimation at the top tiers of the Justice Department, if the president tried it.
Fifty Republicans signed a letter during Trump’s campaign that they thought his lack of leadership skills put the country at risk. That group included four lawyers from Covington alone, and several others that work at large private practice law firms in town,
John Mikhail, a Georgetown University Law Center professor who specializes in constitutional scholarship, says he joined the legal historians’ emoluments brief this year because he felt appalled by the president’s approach and knew there’s been no high court interpretation in 300 years on the issue.
“People like me are stepping forward because of the extremity of the situation. This is an administration that’s trampling constitutional norms, all across the board,” he says. When the “conservative legal elites” rebuke the president, he says, “that’s the canary in the coal mine.”
Katyal, a Democrat and Obama appointee who backed conservative Justice Neil Gorsuch in his Supreme Court nomination, says that feeling among conservatives hasn’t changed. He mentions lawyer-friends of his. “I can’t think of a single one in Big Law today who thinks the president has acted with the appropriate attitude for the federal judiciary,” he says.
Neither the executive director nor the president of the Republican National Lawyers Association responded to requests for comment for this story.
Though Katyal’s travel ban case doesn’t have a brief signed collectively by Republican lawyers or politicians, he has received support from former national security officials, a group that includes conservative stalwarts in its ranks.
Among the brief’s signers is retired Gen. Michael Hayden, a former Central Intelligence Agency director and National Security Agency director under President George W. Bush. Trump’s travel ban is “beneath the dignity of the nation and Constitution that [they] took oaths to protect,” they write.
Firms largely haven’t been willing to engage in the same rhetoric. But at what point do their actions mean more?