If you thought the fight over Trump-era executive orders targeting Biglaw firms might lose some of its edge on appeal, think again. The four firms still standing — Perkins Coie, Jenner & Block, WilmerHale, and Susman Godfrey — have now filed their response briefs in the D.C. Circuit, and they are not exactly mincing words.
Susman Godfrey, never one to shy away from a punchy line, framed the stakes in stark constitutional terms, calling the executive order targeting the firm “a grave abuse of presidential power that threatens the essential postulates of our constitution and the rule of law itself.” A point that’s more than just rhetorical flourish, it’s actually the throughline of all four briefs.
Because, as Susman puts it, if this order stands, lawyers are no longer independent actors: “Susman’s lawyers would effectively be under the thumb of the president, forced to submit to his whims regardless of their own sense of duty to the constitution, their clients, and the rule of law.” And the risk the orders spread is real, “Today, it is Susman. Tomorrow, it could be any law firm or lawyer.” The Framers, they note, baked the First Amendment and due process protections into the Constitution precisely to prevent this kind of strong-arm governance.
Over at Jenner, the brief leans hard into what should be an uncontroversial proposition but apparently now needs litigating, that the government does not get to punish lawyers for who they represent. “Our Constitution forbids the government from retaliating against lawyers based on the clients they represent and the people with whom they associate,” Jenner writes, before twisting the knife: “The executive orders challenged here defy this fundamental precept.”
And in case anyone in the back row missed the implications, Jenner spells it out the harsh reality. If lawyers fear sanctions for doing their jobs, they cannot effectively advocate, which stunts clients’ ability to vindicate their rights. Which is a system-wide failure. The orders, Jenner warns, “cast a chill over the entire legal profession.”
Jenner also takes a not-so-subtle swipe at the government’s appellate strategy:
Faced with defending the indefensible—and after wavering on whether to maintain this appeal at all—the government has little to say. On the merits, it protests that the order has nothing to do with Jenner’s representations or associations, but instead was prompted by unspecific and unsubstantiated allegations of hiring discrimination.
Meanwhile, Perkins Coie — the OG Biglaw target — situates the dispute in a broader landscape of fear and capitulation. Nine firms, they note, folded under pressure and struck deals with the administration rather than risk existential sanctions. (A fact that continues to hang over this entire saga like a particularly judgmental cloud.)
Nine law firms, cowed by the threat of firm-ending sanctions, ‘settled’ with the President. But Perkins, followed by Jenner, WilmerHale, and Susman, sued to defend themselves and their clients. Four different district judges recognized the President’s executive orders for what they are: shocking abuses of power that trample the constitutional rights of the law firms and their clients. This Court should recognize the same.
WilmerHale’s brief, for its part, zeroes in on what it calls the order’s “unabashed” retaliatory purpose, pointing to the laundry list of penalties imposed on the firm, from restricting access to federal buildings to effectively blacklisting it from government engagement and leaning on its clients to walk away.
Wilmer doesn’t sugarcoat it, calling the EO a “direct assault” on the First Amendment, separation of powers, and the adversarial system itself.
And that’s really where all four briefs converge, framing the legal fight as something much bigger than the individual firms and whether the executive branch can weaponize its power to reward friendly lawyers and kneecap the ones who displease the administration.
The question isn’t whether Biglaw can survive; it’s whether the legal system, as we understand it, can.
Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Mastodon @Kathryn1@mastodon.social.
The post Biglaw To D.C. Circuit: This Isn’t Just About Us — It’s About Whether The President Can Put Lawyers On A Leash appeared first on Above the Law.
