While reading the New York Times this morning, I started laughing. That is not my typical reaction to the Gray Lady, they are not exactly known for their funny pages, but Michael Schmidt and Devlin Barrett have quite the scoop. The day we all knew was coming has finally arrived: Donald Trump has turned on the nine Biglaw firms that sold out their reputations and the rule of law to get out from under his onerous and unconstitutional executive orders.
My colleague Joe Patrice has been on top of this since jump, comparing the whole arrangement to Lando Calrissian’s deal with Darth Vader, “pray I don’t alter it any further,” and all that. And, as Joe wrote: he will. Congratulations to Joe on being right, which is a sentence I do not get to type often enough.
The details are a little onerous and frankly resemble a Rube Goldberg machine more than a legal strategy, so bear with me.
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According to the Times, the Justice Department has subpoenaed all nine of the craven, capitulating firms — the ones that inked deals promising $940 million in pro bono payola to Trump-approved causes rather than fight the EOs in court — demanding all communications the firms had with Boris Epshteyn, plus “any communications concerning the implementation, enforcement or monitoring of” the deals themselves. On top of that, DOJ wants depositions from the firm leaders who signed on the dotted line: former Paul, Weiss chair Brad Karp, Jon Ballis of Kirkland & Ellis, Richard Trobman of Latham & Watkins, Patrick Quinn of the firm formerly known as Cadwalader, Jeremy London of Skadden, Thomas Cerabino of Willkie Farr, Scott Edelman of Milbank, Adam Hakki of A&O Shearman, and Alden Millard of Simpson Thacher.
Turns out payola doesn’t buy you peace.
So why is the DOJ doing this to its own success story? Remember, the DOJ has spent the last several months whipsawing on these very executive orders — dropping its defense of the orders against the four firms that fought back, then reversing course two weeks later and citing the nine capitulating firms as proof the intimidation policy worked exactly as designed. And you have to remember the administration is also facing a lawsuit from the ABA over the same executive orders; the ABA’s discovery requests in that case, which sought, inter alia, the White House’s communications with Epshteyn and Steve Bannon about the deals.
As the Times puts it, “the uneasy truce between the firms and the White House has erupted into a pitched legal battle.” Rut roh. Looks like there’s trouble in Mar-a-Paradise?
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The DOJ has moved to quash the ABA’s discovery demand, but in the meantime, it’s turned around and requested the same universe of information from the nine capitulating firms, plus, from the four firms that actually fought the EOs and just keep winning. The Times reports the logic, such as it is, “The government’s subpoenas marked an escalation of the battle surrounding the lawsuit, and aim to put the law firms’ leaders under the same kind of pressure that the bar association’s subpoena put on Mr. Epshteyn, according to people familiar with the matter.”
There’s more, and it gets weirder.
Some lawyers who are representing the firms have speculated that the Justice Department made the demands in the hopes of forcing the firms to pressure the American Bar Association to drop its lawsuit, according to three of the people. Others have questioned why the department would take a step that could provide greater insight into Mr. Epshteyn’s role in the administration, as there have been concerns at the White House about him.”
Which is… circular at best. The DOJ’s own subpoena might be the thing that hands the ABA exactly what it’s been asking a federal judge to force out of the White House. And about the theory that the subpoenas are meant to pressure the firms into leaning on the ABA to drop the suit…. I mean whaaa??? While powerful individual actors, Biglaw firms are not the driving force behind the ABA. And especially not the firms that brokered a deal with Trump, which, according to the ABA, is chilling a far broader profession. These are firms that sold their reputations for a truce with the administration; why would the ABA care what they think? The ABA’s entire lawsuit is a low-key callout of the yellow-bellied nine’s capitulation in the first place. I don’t see how a subpoena changes… any of that.
And here’s the kicker: at least some of the nine firms are reportedly too scared to fight these subpoenas, worried that opposing them will earn them another executive order for their trouble. Sigh. THIS IS EXACTLY why you don’t cut deals with Darth Trump!
So nine Biglaw firms bent the knee to avoid a fight, turns out they got one anyway.
Earlier: The ABA Wants The White House’s Receipts On The Biglaw Executive Orders
The Trump Administration’s Best Argument For Its Biglaw EOs Is That You Just Have To Trust The President
DOJ’s Defense Of Trump’s Biglaw Executive Orders: Look How Many Firms We Scared Into Compliance!
DOJ Drops Defense Of Biglaw Executive Orders, Leaving Capitulating Firms Holding $940 Million Bag
There’s No Absolution For Biglaw Firms Suing The Administration After Bending A Knee To Trump
Biglaw’s Trump Deals Have Chilling Effect On Pro Bono
‘Pray I Don’t Alter It Any Further’: What Darth Vader Should Teach Law Firms About Settling With Trump
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 Bluesky @Kathryn1