The case for suing

Why law firms should remain independent from the government

While I am a partner at Jenner and support our firm’s lawsuit wholeheartedly, I write this post, as always, in my personal capacity.

On March 25, 2025, President Trump issued an Executive Order entitled “Addressing Risks from Jenner & Block,” the firm where I am a partner. Among other things, the Executive Order “limit[s] official access from Federal Government buildings to employees of Jenner,” “limit[s] Government employees acting in their official capacity from engaging with Jenner employees,” and “require[s] Government contractors to disclose any business they do with Jenner and whether that business is related to the subject of the Government contract.” The President has issued similar Executive Orders against other law firms as well, with additional Executive Orders reportedly waiting in the wings.

On March 28, 2025, Jenner, represented by Cooley, sued the government in the U.S. District Court for the District of Columbia. That same day, the District Court granted Jenner’s motion for a temporary restraining order. As such, the bulk of the Executive Order is currently not being enforced. In total, three federal judges have now found that these Executive Orders likely violate the Constitution.

Our firm’s official website regarding this litigation is here. We say: “For more than 100 years, Jenner has stood firm and tirelessly advocated for our clients against all adversaries, including against unlawful government action. We once again go to court to do just that. To do otherwise would mean compromising our ability to zealously advocate for all of our clients and capitulating to unconstitutional government coercion, which is simply not in our DNA.” It gives me goosebumps when I read that because it’s absolutely true. I’m so proud that our firm—leadership, partners, associates, and staff—is sticking together and doing the right thing. I can’t tell you how proud I am to be affiliated with the firm.

While two other law firms have challenged similar Executive Orders, other law firms have followed a different path. The President recently withdrew an Executive Order against a law firm after it agreed to, among other things, dedicate $40 million of pro bono time to what the President referred to as “mutually agreed projects” that “support the Administration’s initiatives.” Since then, in an apparent effort to avoid similar Executive Orders, three other law firms have preemptively agreed to commit $100 million to pro bono initiatives supported by the government.

As more firms face the prospect of Executive Orders, more of my colleagues in the bar will face the same choice: sue or settle? In this post, I will make the case that they should sue.

The Executive Orders are unconstitutional. They violate the First Amendment right of lawyers and their clients to speak, petition, and associate. They are also designed to discourage lawyers from representing unpopular clients—even clients with meritorious cases—and in so doing, they profoundly distort the judicial system. If anyone should be standing on principle and attempting to vindicate the rule of law, it is our nation’s lawyers.

But the reasons for suing go beyond that. To zealously represent their clients, law firms must remain genuinely independent from government. 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 what cases the law firm chooses to take on.

At core, these settlements reflect an attitude of deep cynicism. Cynicism towards the law firm’s own clients—that they would prefer a law firm that is beholden to the government than one that maintains its ability to provide independent, uncompromised advice. And cynicism towards our justice system—that it is so toothless that the law firm would be better off capitulating than suing even if it prevails. We should be optimistic both about the clients we exist to represent and the justice system we are sworn to uphold.

The Executive Order is unconstitutional and undermines the rule of law

The Executive Orders violate the First Amendment. There have been several Executive Orders so far that all suffer from similar constitutional infirmities; I’ll focus on the one against Jenner.

It is well established that “the First Amendment prohibits government officials from retaliating against individuals for engaging in protected speech.” The Executive Order retaliates against Jenner because Jenner engaged in protected speech. According to the Executive Order, Jenner must be punished because it “engage[d] in obvious partisan representations to achieve political ends,” such as representations on behalf of immigrants and transgender persons. Legal advocacy is a form of speech. Jenner is being punished for speaking.

The First Amendment’s Petition Clause separately protects the right to petition the government for redress of grievances, including the filing of lawsuits. Indeed, as the Supreme Court has emphasized, the right to petition is “one of the most precious of the liberties safeguarded by the Bill of Rights.” Retaliating against Jenner because it purportedly filed lawsuits to “achieve political ends” is anathema to the First Amendment.

The First Amendment also prohibits the government from discriminating on the basis of viewpoint. The Executive Order discriminates on the basis of viewpoint. Immigration and transgender rights are areas of intense social debate. The Executive Order openly targets Jenner because it represented clients who had viewpoints on these issues with which the current government disagrees.

The Executive Order also targets Jenner because of its previous affiliation with Andrew Weissmann. Mr. Weissmann, a former member of Robert Mueller’s team, wrote a book criticizing the President and has frequently criticized the President on television. The Executive Order states that Mr. Weissmann’s “overt demand that the Federal Government pursue a political agenda against me” shows his “dishonesty.” And it assails Jenner because Jenner stated years ago that it was “thrilled” to have Mr. Weissmann as a partner. According to the Executive Order, Jenner’s decision to associate with Mr. Weissmann is a “concerning indictment of Jenner’s values and priorities.” The First Amendment does not permit the government to retaliate against a law firm (or anyone else) based on its perceived “values and priorities”—particularly when the government is inferring those “values and priorities” from the law firm’s constitutionally protected decision to associate with a person whose political views differ from the President’s.

Not only does the Executive Order retaliate against Jenner for its prior exercise of its First Amendment rights, but the Executive Order’s retaliatory measures are themselves First Amendment violations. The Executive Order “limit[s] official access from Federal Government buildings to employees of Jenner” and “limit[s] Government employees acting in their official capacity from engaging with Jenner employees.” These restrictions—if ever enforced—would make it impossible for Jenner to exercise the constitutionally protected right to petition the government for redress of grievances.

The Executive Order further “require[s] Government contractors to disclose any business they do with Jenner and whether that business is related to the subject of the Government contract.” The “fact sheet” accompanying the Executive Order sets forth the purpose of this requirement: “To ensure taxpayer dollars no longer go to contractors whose earnings subsidize activities not aligned with American interests.” In other words, the Executive Order—should it ever be implemented—compels contractors to disclose their association with their chosen counsel as a means of deterring contractors from retaining that counsel. That compelled disclosure, for the purpose of deterring contractors’ exercise of their right to freely associate, violates the First Amendment.

The Executive Order also violates the Due Process rights of both Jenner and its clients. I’ll start with Jenner. Due Process requires the government to provide notice and a hearing before it imposes punishment. That did not happen here. There was no notice. There was no hearing. Instead, the Executive Order was issued based on the President’s unilateral decision that Jenner had done something wrong.

The Due Process Clause also requires the government to give citizens advance notice of what actions may trigger punishment. This is the basis of the void-for-vagueness doctrine and many other doctrines. What advance notice did Jenner have? Indeed, even after this Executive Order, what advance notice do other law firms have? What types of representations or affiliations will trigger the next Executive Order? No one knows.

The Executive Order violates the Due Process rights of Jenner’s clients, too. The Due Process Clause guarantees our clients’ rights to obtain zealous legal representation. Without the temporary restraining order, it would not be possible for Jenner to represent its clients in dealings with the government when there is an Executive Order that bans Jenner lawyers from government buildings and that bans government officials from speaking to us. And forcing our clients to disclose the fact that they have retained us invades the attorney-client privilege. For similar reasons, with respect to criminal defendants, the Executive Order violates the Sixth Amendment right to counsel.

The government might say that our clients have the option of terminating their relationships with us and hiring other lawyers. But the Fifth and Sixth Amendments protect a client’s right to be represented by the lawyer of his choice, rather than being limited to lawyers who are restricted in their speech to messages that align with the government’s viewpoint.

Moreover, the purported opportunity for people with differing viewpoints to hire other lawyers is illusory. The Executive Order calls out our pro bono representations of disfavored clients for the express purpose of deterring other law firms from taking on similar representations. What law firm would take on a pro bono case—or any case—if the consequence of taking the case would be a potential executive order attacking the firm? The Executive Order’s purpose and effect is to strip unpopular litigants of any access to legal representation from law firms, even if they have meritorious claims.

The Executive Order also violates the Equal Protection component of the Due Process Clause. Abundant case law holds that the government may not single out particular entities for adverse treatment based on animus. That is what the Executive Order does. It declares that our firm has done pro bono work and affiliated with an ex-partner that the Administration doesn’t like, and therefore singles out us out for adverse treatment.

In addition to violating multiple provisions of the Bill of Rights, the Executive Order is inconsistent with the Constitution’s structure and the separation of powers. There is no constitutional basis for this action. Article II states that the President “shall take care that the laws be faithfully executed.” What “law” is being “faithfully executed” here? No constitutional provision, statute, or regulation authorizes the President’s action. To the contrary, the concept of a “law” that authorizes the President to unilaterally retaliate against his political opponents without due process is antithetical to the American tradition.

The separation-of-powers concerns are obvious. The judicial system cannot function unless lawyers can defend their clients zealously without fear of government retaliation. Every court has the authority to take appropriate action if a lawyer acts improperly in a particular case. Unilateral executive action retaliating against a law firm for representing clients—for the unapologetic purpose of deterring lawyers from making arguments in litigation with which the President disagrees—impedes the judicial process. Worse, the Executive Order deters suits on only one side of contentious social debates. If you want to represent clients whose views align with the government’s, you can litigate to your heart’s content. If you want to represent clients with opposing views, the government will come after you.

Moreover, there is no conception of the common good that is compatible with the Executive Order. The Executive Order bans nearly a thousand employees—including hundreds of attorneys—from one particular law firm from entering government buildings and interacting with government officials because of the government’s animus towards a former partner of that particular law firm. I participate in panel discussions all the time in which principled conservatives and progressives engage in reasoned discussion about a particular policy or legal issue. It is hard to imagine a panel discussion in which principled conservatives and progressives debate the policy merits of this Executive Order. It is alien to any conception of good policymaking under our constitutional system.

One final point. It should have been obvious to the government that the Executive Order would fail in court—not only is it plainly unconstitutional, but a federal judge had already enjoined the virtually identical Executive Order directed at Perkins Coie. Yet it was issued anyway. Why? Because the government has made the assessment that the law firm would be so cowed that it would refuse to litigate, even if it knew it would win. The implicit message of the Executive Order is: even if you win, the justice system cannot save you. At its core, the Executive Order is a bet on our justice system’s failure.

The settlements

Three law firms so far have sued and obtained quick temporary restraining orders barring the government from implementing the Executive Orders.

But other law firms pursued a different path. So far, four law firms have settled to avoid similar Executive Orders. One persuaded the President to withdraw an Executive Order by agreeing, among other things, to “dedicate the equivalent of $40 million in pro bono legal services” to “support the Administration’s initiatives” on “mutually agreed projects.” Since then, three other law firms have preemptively staved off Executive Orders by agreeing to undertake $100 million in pro bono work on causes supported by the President.

In light of this wave of preemptive settlements, other firms now face the same choice: settle or sue?

They should sue. Law firms should not accept settlements of this nature. Settling with the government not only reflects capitulation to unconstitutional government coercion, but also irrevocably compromises a law firm’s ability to defend its clients.

Law firms should not agree to dedicate $40 million or $100 million in pro bono legal services to “mutually agreed projects” to “support the Administration’s initiatives.” I am not saying this because I valorize impact litigation by large law firms, which I recognize does not inherently advance the public interest even if it may sometimes be worthwhile. Judge Jacobs’ thoughtful speech—now 17 years old, but still remarkably fresh—is the definitive statement of this position.

Instead, the problem is this: when a law firm agrees to dedicate $40 million or $100 million to “support the Administration’s initiatives” via “mutually agreed projects,” it cedes control over a piece of the law firm to the government. “Mutually agreed” means the government has to agree. But law firms are private organizations. The partners own the firm. The partners, not the government, decide what pro bono cases to take. I view it as unacceptable to have to turn over a piece of our firm to the government in exchange for lifting unconstitutional government restrictions.

Importantly, settlements between a law firm and the government cannot possibly be confined to millions of dollars in “mutually agreed” pro bono. Instead, all aspects of the firm’s legal work are irrevocably compromised.

Look at the President’s statement after one of the recent settlements. He announced: “The President continues to build an unrivaled network of lawyers.” He is correct. Any law firm that settles effectively joins the government’s “unrivaled network of lawyers.”

I am also struck by the President’s remarks yesterday:

Have you noticed that lots of law firms have been signing up with Trump? $100M, another $100M, for damages that they’ve done. But they give you $100M and then they announce that, ‘but we have done nothing wrong.’ And I agree, they’ve done nothing wrong, but what the hell, they give me a lot of money considering they’ve done nothing wrong. And we’ll use some of those people, some of those great firms, and they are great firms, too, they just had a bad moment. But we’re gonna use some of those firms to work with you [the coal industry] on your leasing and your other things, and they’ll do a great job. I think they’ll do a fantastic job.

As well as the White House Press Secretary’s statement today:

Big Law continues to bend the knee to President Trump because they know they were wrong, and he looks forward to putting their pro bono legal concessions toward implementing his America First agenda.

These statements accurately describe both the intent and the effect of the settlements: to conscript private law firms into doing the government’s work, or at least not to do any work that the government might perceive as inconsistent with its interests.

If you asked me to summarize the key to a free society while standing on one foot, I would say: “a robust private sector that is truly independent of the government.” Free enterprise cannot be free when the government demands that private organizations conduct “mutually agreed projects”—or else face government retribution. And this concern is heightened in the context of private law firms. All criminal litigation, and much civil litigation, pits private citizens against the government. The justice system cannot function unless those private citizens are zealously represented by counsel—which cannot happen unless that counsel is genuinely independent of the government.

By joining the government’s “unrivaled network of lawyers,” law firms forfeit their identity as independent organizations. Remember that the purported “deals” are not, in fact, deals. There is no binding contract. They are written in pencil. If the President lifts an Executive Order, he retains total discretion to reimpose a new Executive Order at any time. Similarly, when law firms preemptively settle, the President gives up nothing. He retains exactly the same legal authority to impose an Executive Order as he did previously.

As a result, if a law firm enters into this type of non-deal, I don’t understand how it can ever represent clients in any case that involves the government. Every time its lawyers file a brief, they will think: “On the one hand, I have to represent my client zealously, but on the other hand, I have to make sure not to undo the deal.”

The firm might pretend it is defending its clients zealously. It might file legal briefs making all manner of legal arguments. But what if a lawyer uncovered information that made the government look bad? There would be massive pressure on the lawyer to look the other way. Maybe the lawyer would try to offer some explanation to his client as to why it’s strategically best to set the issue aside. But there would always be a question mark in the client’s head: “is my lawyer saying this because he believes it, or is the lawyer saying this because he’s trying to preserve his law firm’s settlement with the government?”

Crucially, the Executive Orders against all of the affected firms explicitly call out the firms for the positions they took in litigation. As such, to preserve the deal, a firm that settles with the government has a strong incentive to pull punches in litigation. In every case in which the government has an interest, the firm has a conflict of interest.

Many lawyers at the settling law firms disagree with their firm leadership’s decision to settle. But agree or disagree, they are subject to the same conflict of interest. Partners at law firms have fiduciary duties not only to their clients, but also to each other. They also have strong personal interests in not doing anything that would undermine the firm’s delicate position.

When I say that the firm can’t represent the clients in cases involving the government, I’m not just talking about litigation against the government. I’m talking about any practice—regulatory, contract negotiation, anything—involving the government. Lawyers can and do have productive and respectful relationships with the government. Neither law firms nor businesses can function if they are constantly at odds with regulators. But in any interaction with the government, a private law firm can always maintain the implicit position that, if things go south, the law firm can zealously defend its client in court. A law firm in the pocket of the federal government can’t say that anymore.

And the conflict-of-interest concern goes beyond cases involving the government. The concern extends to any representation of any kind in which the government has an interest.

In any matter in which the government is interested—even a matter that does not directly involve the government—a law firm that settles will serve two masters. One is the law firm’s client. The other is the government. Suppose your law firm represents a client in a high-stakes lawsuit. On the other side of the case is a company that the government favors—either because it has explicitly come out in support of the government or because the government has politely persuaded it to undertake “mutually agreed projects.” How can you possibly represent your client zealously?

The Executive Order augurs the largest expansion of government in my lifetime. The size of government isn’t measured by the number of employees on the government’s payroll. It’s measured by the degree of influence the government has in the private economy. The Executive Order illustrates the government’s willingness to exercise authority, unconstitutionally if necessary, to acquire control over private organizations. To provide uncompromised advice, law firms must avoid being controlled.

No deal

I also have more fundamental objections to the settlements.

Look at some of the litigants who have stood their ground to vindicate First Amendment rights for the benefit of not only themselves, but everyone else. In West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), the plaintiffs were 8-year-old Marie Barnette and 11-year-old Gathie Barnette, Jehovah’s Witness schoolchildren in West Virginia who refused to salute the flag based on their interpretation of the Book of Exodus. In Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), the plaintiffs were 15-year-old John Tinker, 13-year-old Mary Beth Tinker, and 16-year-old Christopher Eckhardt, schoolchildren in Iowa who were suspended when they wore black armbands to protest the Vietnam War. These people were children, from religious or ideological minorities, who I doubt were wealthy, who must have faced extreme pressure, hostility, discrimination, and fear as their cases winded their way through the courts. They prevailed and vindicated constitutional rights that we now take for granted. If those litigants can stand their ground, the nation’s largest law firms can too.

Challenging the Executive Order follows from the oath we took to support the Constitution when we joined the Bar. The Constitution does not mean much unless the rights it protects are vindicated. By bringing suit, law firms vindicate their own constitutional rights. They also vindicate the constitutional rights of their clients to retain counsel that will defend them zealously. And they set a precedent that will make it easier for other, similarly-affected firms to bring their own lawsuits, thus advancing constitutionalism across the legal profession.

Further, the Executive Order creates a chilling effect that will make it difficult for litigants with disfavored viewpoints to find counsel. Those litigants have the constitutional right to petition for redress of grievances like everyone else, and they cannot exercise that right unless they can find a lawyer willing to defend them. Bringing suit—and contributing to a legal culture in which law firms are willing to defend themselves—protects those litigants’ access to the courts.

I don’t think any lawyer, even lawyers at the firms that settle, think the Executive Orders are constitutional or that the settlements are virtuous. Instead, they view settling as a necessary evil designed to protect the firm’s fortunes. But that perspective reflects a profoundly cynical view of a law firm’s own clients. The theory behind settling is that what clients really want is a law firm that folds in the face of unconstitutional coercion, ostensibly to get into the government’s good graces, rather than a firm that stands up for its right to remain independent from the government. Law firms should have more faith in the people they represent than that.

Settling demonstrates cynicism not only about a firm’s clients, but also about the justice system. Three law firms have sued. All have obtained quick temporary restraining orders. Yet law firms are preemptively capitulating anyway. These settlements reflect the view that prevailing in litigation and obtaining a court order will lead to no real relief, and all that matters is public perception regardless of the outcome of judicial proceedings. I don’t think law firms, of all institutions, should be so dismissive of our justice system. And that cynical attitude by law firms will contribute to cynicism by the public. How can citizens not be cynical when they see these highly sophisticated and successful firms, ostensibly devoted to protecting the rule of law and being brave warriors for their clients, folding instantly?

By contrast, bringing suit reflects optimism in our justice system’s ability to right legal wrongs when litigants bring meritorious claims. If the Executive Order is a bet on the failure of our justice system, then bringing suit is a bet on its success. I will always bet on the success of the American justice system, and I hope other law firms do the same.