The Trump administration’s fixation on Biglaw has become one of the strangest — and most legally embarrassing — throughlines of this term. As regular readers know, the White House has rolled out a series of executive orders aimed squarely at elite law firms, premised on the idea that representing certain clients, participating in diversity initiatives, or otherwise displeasing the administration is somehow a punishable offense. The result? Judicial smackdown after judicial smackdown. Courts across the ideological spectrum have struck these orders as blatantly unconstitutional, rejecting the administration’s efforts to weaponize federal contracting power and punish protected speech and association. Conservative judges. Liberal judges. All reading the same Constitution and arriving at the same conclusion: no, the president does not get to blacklist law firms because he doesn’t like them.
There was also the EEOC gambit; an attempt to frame Biglaw diversity efforts as unlawful discrimination. That, too, fizzled. As Bloomberg Law reports, the EEOC quietly wrapped up its investigation without much to show for it, a tacit admission that the agency’s legal theory was never going to hold water. Then came the FTC, with the administration floating an antitrust theory attacking law firms for their participation in diversity programs (the Mansfield Certification program). Actual antitrust experts reacted with something between bafflement and laughter. A diversity initiative (particularly one that’s been blessed by a federal judge) as cartel behavior? That’s a legal yoga pose no court is likely to attempt without pulling a muscle.
What’s striking about all of this isn’t just the aggression; it’s how bad the lawyering is. These are theories that collapse under even casual scrutiny. And yet, here we are. The administration keeps losing in court, keeps advancing new theories, and keeps pretending that the next swing will finally connect. It hasn’t. When firms have actually fought back, they’ve won. Overwhelmingly.
But here’s the uncomfortable part: despite the administration’s abysmal legal record, the campaign against Biglaw hasn’t been a total failure. Faced with facially unconstitutional executive orders, nine major firms (Paul Weiss, Skadden, Kirkland, Latham, Cadwalader, Willkie Farr, Simpson Thacher, Milbank, and A&O Shearman) chose not to litigate, and instead sought Trump’s seal of approval, providing millions in pro bono payola, that is, free legal services on behalf of conservative clients or approved causes in order to avoid Trumpian retribution.
That capitulation, which Above the Law has chronicled in detail, remains one of the most consequential outcomes of this pressure campaign. The government didn’t need good law; it just needed enough leverage to scare firms into compliance.
And the chilling effect hasn’t stopped there. Even firms not directly targeted have quietly revised DEI language, pulled affinity-group pages, and softened public commitments, all preemptive obedience dressed up as “risk management.” The FTC’s latest bullying move may yet succeed, not because it’s legally sound, but because it signals that the administration is willing to keep throwing punches until someone flinches.
Power doesn’t always need doctrinal coherence to be effective. Sometimes all it needs is enough bluster and enough fear to convince powerful institutions to fold without a fight.
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.
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