The ABA Declares War

Trump tried to first “kill all the lawyers.” Now the lawyers have hit back.

Photo by Andrew Kelly, Reuters

The American Bar Association (ABA) just dropped a massive federal lawsuit against the White House. And it’s not messing around. The lead counsel filing suit on behalf of the ABA is Susman Godfrey, one of the firms Trump targeted. The complaint names the Office of the President, but for good measure, it also names each and every high level government department along with every cabinet official.

The list of named defendants alone goes on for eight pages, and I admit that I smiled while flipping through it.

It’s hard to overstate what a consequential, historic and unprecedented move this is. The ABA is a normally quiet, nonpolitical organization. You’d know this if you’ve ever attended and tried to stay awake during its conferences.

To stir it to action and actually file a lawsuit against a sitting president and his entire administration is something I thought I’d never see. For starters, it risks “politicizing” the ABA, with Trump supporters likely to denounce it as captured by liberal, Democratic forces. The organization absolutely understands the Rubicon it has crossed.

The circumstances must be dire indeed for this organization to undertake such a move. As the ABA set forth in its suit, and as it stated in accompanying press releases, it has basically been left with no choice.

How we got here

Let’s rewind a few months. Donald Trump launched the first salvo against the legal profession in a series of executive orders barring certain law firms and attorneys from federal buildings, cutting them off from federal contracts, and yanking their security clearances. It was meant, and received as, a body blow to the entire profession.

Specifically, the executive orders created an existential threat to the bottom lines of many big law firms, which were suddenly unable to conduct some of their most important government business. Nine of the big firms quickly, and shamefully, bent the knee. They agreed to Trump’s numerous demands, which included forcing them to provide pro bono assistance to the regime when it’s sued over its many abuses. These firms have spent the last months scrambling to explain their behavior, answering calls from furious clients who don’t believe they can be adequately represented going forward without a huge conflict of interest, and trying to prevent top attorneys from leaving in disgust.

Meanwhile, some firms, most famously Perkins Coie, valiantly stood their ground and filed lawsuits to turn back the executive orders. But even while they scored significant court victories, the state of the legal profession remained precarious.

Why? As the ABA said in a press statement accompanying the complaint, Trump’s executive orders created a “pervasive fear within the legal community and the justice system.” It added, “Many attorneys are no longer willing to take on representations that would require suing the federal government because doing so poses a serious risk of becoming the next target of the administration’s devastating sanctions.”

In short, the ABA filed a complaint for declaratory and injunctive relief in order to protect firms that haven’t yet been targeted but remain afraid of taking any action that could put them on the wrong side of the regime. As the complaint states, the suit is intended to combat the “deliberate policy designed to intimidate and coerce law firms and lawyers” that challenge Trump’s policies.

The stakes go beyond the lawyers

While the pressure on lawyers from Trump’s orders is by itself disturbing, the stakes for our entire country also run high as a result. As Chris Geidner highlighted in his newsletter, the complaint makes a compelling and concise argument for why that is:

Using the powers of the Executive Branch to target private citizens and private firms for destruction is unprecedented, and bad enough regardless of the President’s motives. But the Administration’s Law Firm Intimidation Policy is uniquely destructive because of the critical role that its targets—lawyers—fulfill in our constitutional system. …

Without skilled lawyers to bring and argue cases—and to do so by advancing the interests of their clients without fear of reprisal from the government—the judiciary cannot function as a meaningful check on executive overreach.

We have all witnessed for ourselves the critical role the federal judiciary has played in curbing the excesses of the Trump regime. In May alone, before federal district courts, the White House lost 96 percent of its cases.

We credit the judges for their bravery, but we often forget that judges cannot adjudicate cases that aren’t properly before them. That requires lawyers to play their part, creating the adversarial pressure and urgency of action on which our legal system depends. If lawyers are afraid of what will happen to them if they stand up and oppose the government, then the whole system begins to falter.

That of course is the whole reason behind Trump’s attacks.

They sued everyone

I mentioned at the top of this piece that the ABA sued every single department and cabinet official in the country. Apart from the satisfaction this move delivers, there’s a practical reason for it.

As NOTUS reported, in earlier lawsuits the government argued that court rulings don’t apply to departments and officials not named as defendants. In response, Perkins Coie amended its complaint to sue dozens of others, “with a defendant list that stretched on for 40 pages, a move that generated humor and cheers across the legal field.”

This regime has played hide-the-ball and shift the blame quite often, especially when it comes to how to move migrants from one location to another after one department has been expressly enjoined from doing that. Just have another department assume custody! This has forced judges to play whack-a-MAGA with the regime, but the lawyers have gotten wiser: If you name every department and every cabinet official, any injunctions or orders that the courts issue will apply to each and every part of the government.

How do the suit’s chances look?

We have some idea early on that Trump’s executive orders are on infirm constitutional grounds. As NOTUS reported,

Last month, U.S. District Judge Richard Leon in the District of Columbia issued a 73-page order balking at the vindictive nature of the executive orders.

“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!” he wrote.

Weeks earlier, U.S. District Judge Beryl Howell concluded that the White House was violating Fifth and Sixth amendment rights that protect people’s ability to seek their own counsel and First Amendment right of free association.

“This action draws from a playbook as old as Shakespeare, who penned the phrase: ‘The first thing we do, let’s kill all the lawyers,’” she wrote.

These of course are district court opinions, and we don’t yet have any rulings from the appellate courts. Ultimately, these cases will wind up before the Supreme Court and its six-justice conservative majority.

As Geidner wrote, Chief Justice John Roberts recently spoke out in support of judicial independence. In a celebration in his home town of Buffalo of the 125th anniversary of the U.S. District Court of the Western District of New York, Roberts said that it is the role of the federal courts to “check the excesses” of Congress and the President. He lamented attacks upon the independence of the judiciary and calls for the impeachment of judges who rule against the White House.

As the ABA emphasizes in its complaint, the judiciary cannot remain strong and independent referees within our system if the White House can undermine the whole system by taking top lawyers off the field.

If ever there were a time for a 9-0 unanimous opinion in support of the basic rule of law and the fundamental nature and importance of our adversarial system, free from political pressures and coercion by the government, the executive orders attacking the legal profession itself should result in one.

I’ll of course take a more likely 7-2 outcome and not complain.