And Then They Came for the Lawyers

Donald Trump doesn’t much like lawyers–unless they are those who can manipulate the system to keep him out of jail or prevent him from paying legal penalties that juries have awarded to those he has harmed. With Congress firmly under his control, the only barriers in Trump’s way have been the courts. And who gets cases before the judges? Lawyers–like the 20+ Democratic attorneys general who have brought actions to block DOGE funding cuts, rehire federal employees, defend illegal immigration detentions, and keep the Department of Education from being gutted. Or federal prosecutors like Jack Smith, who pursued Trump illegal activities from J6 insurrection to the destruction of classified documents at Mar-A-Lago. There are local district attorneys like Alvin Bragg and Fannie Willis, neither of whom backed away when confronted by Trump’s assault on their character and livelihoods. And the traditional whipping boys of the right, like attorneys at the ACLU or major unions.

Trump proclaimed during the campaign, “I am your retribution”. And he has proceeded against the guardians of the legal system with a vengeance.

This week brought yet another ominous attack on lawyers who are meeting this moment of constitutional challenge. Trump revoked all security clearances for attorneys at Covington & Burling, the prestigious DC law firm providing pro bono legal assistance to Jack Smith, and threatened to cancel federal contracts with the firm. He then fired a similar missive at Perkins Coie, another Washington firm known not only for its election law expertise, but more importantly for Trump, its representation of Hillary Clinton.

The lawyers, however, would not be cowed. Instead, they fought back, engaging another heavy hitter in the legal profession, Williams and Connelly, who filed suit against yet another Trump assault on the First Amendment. This did not deter the President, who issued a third order targeting the prominent international law firm, Paul, Weiss, Rifkind, Wharton & Garrison, for their pro bono assistance to those injured in the J6 attack on the U.S. Capitol.

[Note: Paul, Weiss bought it’s way out of the lawsuit by pledging to perform $40 in pro bono work for nonprofits upon which it and Trump agreed. This is a major capitulation, and one that does not bode well for the future]

Although the Perkins Coie case is still pending, federal Judge Beryl Howell had no problem issuing a restraining order against Trump’s efforts, condemning them as “retaliation” and a “wholly personal” vendetta of “political payback”. That such an action would have to be fought in the courts is troublesome nonetheless, as Trump continues to test the boundaries of what is legal and proper. The stakes are high; Trump victories in the courts hold the prospect of undermining key elements of the system of checks and balances upon which this Republic depends.

A STRING OF LOSSES

Trump’s first two months in power have brought him few victories in the courts. In February, a lawsuit by Democratic attorneys general led a New York federal judge to block DOGE’s access to Treasury Department information. Elon Musk’s attempt to gain access to data at the Office of Personnel Management and Department of Education —including student loan data—has been blocked while a lawsuit from the American Federation of Teachers and federal employees moves forward. Trump’s legal attack on birthright citizenship appears doomed.

Another federal court has ruled that not only must the president release federal funds that had been approved by Congress for various nonprofits, but that his administration has been skirting the decision and continuing to deny the funds. If Trump was a defendant who continued to violate a court order to pay child support, he would likely end up in jail.

Last week, federal Judge William H. Alsup, granted a preliminary injunction and ordered reinstatement of thousands of probationary federal employees fired by the administration, labeling the terminations a “sham” to avoid complying with legal process. As Trump has with most cases he has lost, he will appeal.

Even the U.S. Supreme Court got into the act, recently upholding a federal judge’s ruling requiring the administration to release foreign aid payments for work already completed. The courts appear to be stiffening their spines.

This game, however, is anything but over. Apart from Supreme Court rulings, many of these victories are only temporary. The legal process takes time, and Trump knows how the system can be exploited. Chaos is his game, and every day brings one more attempt to exhaust the opposition and remove institutional obstacles to his power. Trump’s plan appears to be to destroy as much as he can as quickly as possible. Even if he loses, the damage will have been done, and rebuilding will only be more difficult.

PURGE AND REPLACE

Trump’s assault on the legal system and federal bureaucracy is unprecedented in both speed and audacity. The president is aggressively firing attorneys in key positions and replacing them with loyalists unlikely to challenge him. While administrations typically appoint their own people to significant roles—and Trump has certainly done so—his efforts go far deeper. His purge targets real or potential enemies, defined as anyone who might dare question his future plans. At the Justice Department, for example, Trump ousted a career official leading the Civil Rights Division and installed Mac Warner, a promoter of false claims that the CIA, with FBI assistance, stole the 2020 election. Trump also dismissed key national security lawyers and the head of the Justice Department’s professional misconduct office—along with longtime career attorneys involved in the January 6 and Mar-a-Lago prosecutions.

As part of Trump’s shakeup of this nation’s highest military leadership, the administration also fired all of the military’s Judge Advocates General (JAG officers), lawyers who ensure that the military follows the Constitution and the Uniform Code of Military Conduct. Despite the reputation of JAG officers as apolitical, DOD Secretary Hegseth justified the removals as necessary to protect against "roadblocks to orders that are given by a commander in chief."

Immediately upon taking office, the President fired Inspectors general (IGs), nonpartisan watchdogs tasked with preventing corruption and ethical transgressions, in 17 different agencies. Though not all lawyers, the IGs are often asked to interpret federal law and refer cases that require litigation. Unless restored by the lawsuit that is now pending, Trump will effectively have removed a group capable of checking governmental improprieties.

THREATS CONTINUE

In recent weeks, the threats have only intensified. In a warning shot fired at the federal judiciary, Vice President J.D. Vance proclaimed that “judges aren’t allowed to control the executive’s legitimate power.” Musk has called some judges “evil” and suggested that those who rule against him should be “fired.” The Trump administration claims it has the power to fire administrative law judges at will, despite specific Congressional actions protecting them. Resolutions have been introduced by several Republican members of Congress to impeach federal judges who have ruled against the president. And DOJ Chief of Staff Chad Mizelle filed a judicial complaint accusing a federal judge of “hostile and egregious misconduct” during a hearing over the constitutionality of President Donald Trump’s anti-transgender military executive order.

Fortunately for the American public, neither the lawyers nor the courts have caved in face of ongoing attacks leveled at both individual judges and the judicial system itself. They realize that if the administration can undermine the legitimacy of the judicial system (e.g. judges are merely left-wing activists in black robes), one of the pillars of our Republic will collapse.

Powerful voices have raised serious questions about Trump’s aggressive approach. In 2024, Chief Justice John Roberts stated that “attempts to intimidate judges for their rulings in cases are inappropriate and should be vigorously opposed.” And when Trump called for the dismissal of the “Radical Left Lunatic” judge who opposed the President’s efforts to implement some of his deportation proposals, Roberts rebuked the statement as an inappropriate response to disagreement concerning a judicial decision. The American Bar Association (ABA) has also been critical, arguing that “ we cannot remain silent” in response to actions that “may appeal to a few” but are “chaotic,” “wrong,” and “contrary to the rule of law.”

END GAME

How this all will end is not yet clear. Lawyers are fighting the Trump executive orders, but they are reacting, just trying to stay ahead of the next outrage. And the power of the courts is inherently limited. Many of the rulings are temporary and some will be appealed or possibly reversed. The Trump team continues its efforts to undermine the numerous temporary injunctions against its policies by seeking unusual Supreme Court “emergency” interventions to stop them. They are already violating court orders, always with some rationale. There will come a time–perhaps soon–when the noncompliance is so significant that it can’t be ignored. The constitutional crisis about which so many are worried will then be upon us.

Courts at all levels—and the lawyers on the front lines of this constitutional battle—must summon their sharpest arguments and steeliest resolve to beat back the most significant executive power grab in American history. These attorneys are speaking for all of us, and we must stand with them. To do otherwise would render the final line of Lutheran pastor Martin Niemöller’s famous warning about Hitler’s Germany all the more prophetic: “Then they came for me—and there was no one left to speak for me.”

P.S. In the “It’s the Economy, stupid” category, here is an interesting graph, courtesy of Rachel Bitecofer:

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