Conservative Judges To Trump: Your Law Firm Death Warrants Are Unconstitutional Garbage

Federal judges don’t normally punctuate their rulings with multiple exclamation points while invoking the Founding Fathers. But then again, no president before has issued executive orders targeting law firms for the clients they represent and the cases they take. In the last week, two George W. Bush-appointed conservative judges delivered brutal constitutional smackdowns of Trump’s law firm death warrants — making clear that these aren’t just bad legal tactics, they’re attacks on the core principle of an independent bar willing to challenge government power.

Last week, Judge John Bates, well known as a traditional conservative judge, blasted the Trump admin for its executive order against the law firm Jenner & Block.

In our constitutional order, few stars are as fixed as the principle that no official “can prescribe what shall be orthodox in politics.” W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943). And in our constitutional order, few actors are as central to fixing that star as lawyers.

This case arises from one of a series of executive orders targeting law firms that, in one way or another, did not bow to the current presidential administration’s political orthodoxy. Like the others in the series, this order—which takes aim at the global law firm Jenner & Block— makes no bones about why it chose its target: it picked Jenner because of the causes Jenner champions, the clients Jenner represents, and a lawyer Jenner once employed. Going after law firms in this way is doubly violative of the Constitution. Most obviously, retaliating against firms for the views embodied in their legal work—and thereby seeking to muzzle them going forward—violates the First Amendment’s central command that government may not “use the power of the State to punish or suppress disfavored expression.” Nat’l Rifle Ass’n of Am. v. Vullo, 602 U.S. 175, 188 (2024). More subtle but perhaps more pernicious is the message the order sends to the lawyers whose unalloyed advocacy protects against governmental viewpoint becoming government-imposed orthodoxy. This order, like the others, seeks to chill legal representation the administration doesn’t like, thereby insulating the Executive Branch from the judicial check fundamental to the separation of powers. It thus violates the Constitution and the Court will enjoin its operation in full.

Then on Tuesday, another extremely conservative judge, Richard Leon, delivered an even more forceful rebuke in the WilmerHale case.

The cornerstone of the American system of justice is an independent judiciary and an independent bar willing to tackle unpopular cases, however daunting. The Founding Fathers knew this! Accordingly, they took pains to enshrine in the Constitution certain rights that would serve as the foundation for that independence. Little wonder that in the nearly 250 years since the Constitution was adopted no Executive Order has been issued challenging these fundamental rights. Now, however, several Executive Orders have been issued directly challenging these rights and that independence. One of these Orders is the subject of this case. For the reasons set forth below, I have concluded that this Order must be struck down in its entirety as unconstitutional. Indeed, to rule otherwise would be unfaithful to the judgment and vision of the Founding Fathers!

Exclamation points! So many of them!

Either way, between Bates and Leon, MAGA cultists can no longer claim it’s just “radical leftist judges” ruling against them on these law firm executive warrants (not that anyone actually believed that in the first place).

While these judges are forcefully defending constitutional principles, their opinions also call out the thing that many of us find equally disturbing: the firms that chose capitulation over principle have handed Trump exactly what he wanted. Judge Bates pointedly included Trump’s own boasting about these surrenders:

Other firms skipped straight to negotiations. Without ever receiving an executive order, these firms preemptively bargained with the administration and struck deals sparing them. The deals largely mirror Paul Weiss’s, though the price continues to rise: instead of $40 million, these firms have pledged $100 million or more in pro bono legal services the administration has a hand in choosing. And in public statements, the President has floated the prospect of deploying the firms to work on the administration’s own projects, rather than traditional pro bono causes, while acknowledging the firms’ lack of wrongdoing: “I agree, they’ve done nothing wrong,” the President said at a recent event. “[B]ut what the hell, they give me a lot of money considering they’ve done nothing wrong.”

The consequences of this surrender are already playing out. At Paul Weiss — the first major firm to cave to Trump’s demands — some top partners have already jumped ship to start their own firm rather than be associated with the capitulation.

Meanwhile, the law firms that caved (including Paul Weiss) are suddenly finding that MAGA cultists are expecting the hundreds of millions worth of free legal services to start flowing immediately:

One of them is the Oversight Project, a conservative group affiliated with the Heritage Foundation. The group has sent letters to dozens of big law firms, including some that settled with the White House, asking each of them to provide up to $10 million in pro bono legal work to support litigation brought by conservative groups.

In that case, it’s at least a non-profit group. But the article also details a bunch of random MAGA fans who seem to think they should just be able to call up these firms and get free legal support.

Some veterans have viewed the deals as an open invitation to ask for free legal work. In recent months, several have called Paul Weiss’s pro bono department asking for help on a range of issues, including their rental leases and medical benefits, two people with knowledge of the requests said.

The pattern here should make everyone wonder why any firm caved in the first place. The court rulings make clear the executive orders were unconstitutional garbage from day one. But beyond being legally unnecessary, the capitulation has left these firms drowning in exactly the kind of bad faith exploitation any competent lawyer should have seen coming.

Which brings us to the most damning indictment of all: Law firms that can’t even advocate successfully on their own behalf have no business advocating for anyone else.