In his criticisms of law firms, educational institutions, and various American organizations, President Trump is operating under a misconception. This misconception suggests that these institutions lack the strength to defend themselves and must choose between adhering to their principles and ensuring their survival.
These institutions do not have to yield to Mr. Trump. They possess a viable strategy to counter his tactics of intimidation. Some law firms and organizations have commenced resistance efforts. By doing so, they are creating a preliminary guide for opposing his endeavors to undermine fundamental aspects of American democracy, such as due process, free expression, and the constitutional framework of checks and balances.
For those who doubt this notion and view Mr. Trump as omnipotent, it’s important to note that law firms have already secured judicial rulings that invalidate Mr. Trump’s executive orders aimed at them. Numerous legal experts anticipate that higher courts will similarly deem these orders unlawful. Additionally, it’s crucial to remember the significant legal setbacks Mr. Trump experienced during his first term. Courts, including the Supreme Court, dismissed his attempts to reverse the results of the 2020 presidential election; thwarted his initiative to include a citizenship question on the census; and obstructed his family-separation policy at the southern border. A grassroots political movement successfully halted his objective to dismantle Obamacare, even when Republicans held sway in both the House and Senate.
Admittedly, Mr. Trump has adopted a more aggressive stance on executive power in his second term. He has achieved some initial policy successes, and further victories are likely. Nevertheless, he faces genuine limitations on his authority. In fact, a significant trajectory towards American autocracy relies not only on a power-driven president but also on the voluntary submission of a subdued civil society. It hinges on the false assumption that a president is invulnerable. Anyone who has encountered a schoolyard bully should recognize this principle: The perceived invincibility of a bully often serves as their most formidable asset.
We can understand the apprehension of leaders from major institutions. Confronting the president of the United States demands bravery. This moment calls for that bravery.
The playbook starts with the acknowledgment that submission leads to inevitable failure. Some law firms and corporations, along with Columbia University, have chosen a different strategy, and the experiences of these law firms illustrate the pitfalls of capitulation.
Mr. Trump has enacted executive orders penalizing several firms who have done nothing amiss. These firms merely employed attorneys who represented Democrats, backed liberal initiatives, or contributed to investigations against Mr. Trump. The orders lack substantial legal justification and yet impose severe penalties. They aim to prevent the firms’ lawyers from entering federal buildings and engaging with federal officials, thereby obstructing the firms from representing numerous clients.
One firm affected by an executive order, Paul, Weiss, capitulated by pledging concessions including $40 million in pro bono services for Trump-aligned causes. Three other firms — Milbank; Skadden, Arps; and Willkie Farr & Gallagher — proactively negotiated arrangements with the White House and made their own concessions.
A critical detail about these arrangements is the absence of binding commitments from the White House. Mr. Trump can threaten the firms again whenever he wishes and demand additional concessions. These firms are effectively under Mr. Trump’s control. Columbia University similarly bowed to Mr. Trump after he threatened its federal funding. Even then, the university did not secure the restoration of that funding; it merely received permission to begin negotiations with the administration.
Mr. Trump’s sway over the submissive law firms should be particularly alarming to their clients. These firms have signaled their readiness to abandon clients who fall out of favor with the federal government. This is not a quality one would desire in an attorney. “Once you make concessions once, it’s hard not to repeat them,” remarked Christopher Eisgruber, the president of Princeton University and legal scholar, when discussing the threats to higher education.
The second principle in the playbook is a firm insistence on due process. The American judicial system has protocols to address Mr. Trump’s various accusations against these institutions. Should law firms act inappropriately, courts have the authority to penalize them. If a university is infringing upon students’ civil rights — such as by allowing antisemitism to flourish — the Justice Department can take action. These processes permit both parties to present evidence, mitigate the potential for power abuse, and set foundational regulations that other organizations can adhere to.
Mr. Trump may indeed prevail in some cases that adhere to due process, which is acceptable. Certain universities have, in fact, allowed their Jewish students to be threatened. However, the appropriate response is not the arbitrary withdrawal of unrelated research funding, which could hinder progress on cancer, heart disease, childhood illnesses, and more. Columbia University appeared misguided in both directions; it was slow to rectify its issues and then submitted to Mr. Trump. Other universities should both organize their internal issues and be prepared to legally challenge the administration.
The three law firms that have initiated lawsuits against Mr. Trump’s executive orders — Jenner & Block, Perkins Coie, and WilmerHale — serve as a model. Thus far, they are achieving success in court. Importantly, they have garnered support from various conservatives. As our colleagues on The Wall Street Journal’s editorial board stated, Mr. Trump’s assault on law firms “undermines a fundamental principle of American justice.”
Paul Clement, possibly the most accomplished Republican advocate currently practicing at the Supreme Court, represents WilmerHale and submitted a compelling brief on its behalf. “It is thus a core principle of our legal system that ‘one should not be penalized for merely defending or prosecuting a lawsuit,’” Mr. Clement stated, referencing a 1974 Supreme Court decision. He characterized Mr. Trump’s orders as “an unprecedented attack on that foundational principle.” Judge Richard Leon, a George W. Bush appointee, granted Mr. Clement’s plea for a temporary restraining order.
This trend should bolster law firms’ confidence that they can continue to triumph as long as they resist. The Supreme Court may lean conservatively on many issues and support a broad interpretation of executive power. However, it has defied Mr. Trump in the past, and conservative legal experts who align with the court’s views express dismay at his attack on the legal framework.
Any institution that stands firm against Mr. Trump should brace itself for sacrifices. Universities might need to allocate more of their endowments, akin to their strategies during economic contractions. Law-firm partners might experience a drop in income. Yet, they can manage it; partners at Paul, Weiss averaged $6.6 million in earnings in 2023. One flaw of the compliant law firms was their assumption that they could remain unscathed once targeted by Mr. Trump. Challenging him incurs costs, and yielding also carries costs. Already, certain students at prestigious law schools report they will no longer seek out interviews with firms like Skadden. “We’re not looking to sacrifice our moral values,” a Georgetown University student remarked.
Lastly, the playbook advocates for solidarity, particularly from institutions that Mr. Trump has not (yet) singled out. The immediate reaction to his executive orders from many other law firms has been contrary to solidarity. Reports indicate they attempted to lure clients away and recruit lawyers from the threatened firms. Most major firms also declined to endorse a legal brief defending their industry. This timidity is ultimately self-defeating. The campaign to subdue law firms will either be successfully resisted or will grow.
We are encouraged to see that some firms have spoken out. Even more encouraging, a few firms — Williams & Connolly, Cooley, and Clement & Murphy — are representing the three firms contesting the executive orders. Corporate leaders can also make a significant impact by privately assuring that they will not abandon any law firm targeted by Mr. Trump. The business community has significant interests at stake. The United States boasts an outsized portion of financial and corporate activity, partly because investors have faith that the rule of law is upheld here. If political power overrides legally binding contracts and the rule of law, American businesses will suffer.
Resisting the misuse of power is inherently challenging, yet it can be motivating. Those who take a stand often look back on their actions with pride and are justifiably recognized for them once the crisis subsides. However, crises rarely resolve themselves. Addressing them requires determination and proactive measures.
