Trump’s War on Big Law

>> Eugene Volokh: Hello and welcome to Free Speech Unmuted, a Hoover Institution podcast. I'm one of your hosts, Eugene Volokh, senior fellow of the Hoover Institution and professor of law emeritus at UCLA Law School. And I'm joined by my other co host, Jane Bambauer, who's a professor at University of Florida, also a law professor.

 

And today we're going to be talking about what's been much in the news, which is the president's executive orders targeting particular law firms for particular kinds of penalties, let's say loosely based in part on their previous litigation positions and their previous advocacy, those orders. Some firms have worked out a deal with Trump to get these orders rescinded or prevented.

 

Others have challenged these orders, and at least two have gotten temporary restraining orders against them. And the question is, what should we think about these orders? Are they in fact, unconstitutional? Mostly we'll talk about the First Amendment issues, but they're also undeniable Fifth and Sixth Amendment issues here having to do with due process and right to counsel.

 

Jane, tell us a little bit more about the orders generally and kind of the big picture of how frankly firms have reacted to them.

>> Jane Bambauer: So, so yeah, over the last couple weeks, the, the Trump, President Trump has has issued a few orders targeting each order targets a specific firm and describes the things that moved President Trump to, to want to put restrictions on the federal government's use of the firm and then also restricting the firm's access to various things.

 

So, for example, in one of the very most recent executive orders, President Trump targeted a firm and explained that they have represented partisan clients for partisan issues to achieve political ends they've supported. So, that's sort of based on client representation and particular positions and cases. But then the executive order also explains that the law firm, quote, I'm quoting here, supports attacks against women and children based on a refusal to accept the biological reality of sex.

 

So that might sound like it's more of just a, you know, outward facing public position that the firm has taken, maybe a purely expressive position. And and then also in some cases, some of the firms have been accused of hiring using race based preferences and that sort of thing.

 

So I raise this because it's sort of a mix of sins, according to President Trump, that, that each firm has committed. And then in response, President Trump has done a few things first, has canceled and prohibited future contracts with those firms. So the firms that some, some firms are highly reliant on clients that are, you know, part of the federal government.

 

I think in one case, one of the firms involved. 30% of its revenues come from, from clients that are in the, that are part of the federal government. So that's a big deal. The contracts are a big deal. Security clearances have been stripped to all lawyers of these firms.

 

And so that will be a very consequential, you know, decision for the firms that tend to litigate things involving national security or criminal, or maybe even some, some criminal law. And, and then they, the executive orders also restrict the firms from accessing government buildings. And it's not quite clear exactly what the scope of that access restriction is.

 

And that's something that I think is frustrated. At least one of the judges said so in, in his opinion. So, Eugene, do you wanna explain? So, so yeah, so the, as you said, the firms have taken a mix of approaches, some working out a settlement, an agreement so that they don't lose access to these things.

 

And of course, they've been under. The firms that have done that are coming under some criticism from the general public and maybe even from their clients too, for what looks like caving too quickly. And other firms have actually brought constitutional challenges. So do you want to explain how the constitutional challenges work and what's been happening so far?

 

>> Eugene Volokh: Sure. So there have been a couple of decisions in, in the challenges. Excuse me, there have been a couple of decisions as to the challenges that have been brought. The most detailed one was in the case involving the Wilmer Hale law firm. And by the way, these are just with regard to temporary restraining orders, which is why the decisions came so quickly.

 

And the interesting thing, among other things, one interesting thing about the Wilmer Hill case is the lawyer on that case is Paul Clement. Paul Clement was Solicitor General for part of the Bush Junior administration. He is very much a conservative. I know him personally, unlike him, but I shouldn't say but.

 

And I also know that he is personally quite conservative and he's also just in general, a very, very well regarded advocate. He's actually spoken up for a lot of conservative causes. He's left a couple of firms when these firms apparently did not allow him to represent particular conservative positions that he wanted to represent.

 

So he has real credibility, I think, both as a very well regarded advocate and as somebody who has personally fought or conservative causes in his saying, well, that this is an improper restriction on law firms as well. So what is the nature of his and his colleague's argument?

 

Well, part of it is that the First Amendment protects, through its free speech clause and through its petition clause, protects the right to take a wide range of litigation positions, both as a client and as a law firm. And if the courts ultimately reject those positions, then you lose the case.

 

But you haven't done anything illegal in making those arguments and you've done something that's protected by the First Amendment that the government should not retaliate against you for. So just to give a few examples, so the executive order about Wilmer Hale says Wilmer Hale engages in obvious partisan representations to achieve political ends.

 

Well, of course, that's what a lot of law firms do and that's what they're entitled to do. Just like politicians are allowed to propose politically laden statutes and government actions to achieve political ends, just as citizens are entitled to make political arguments to achieve political ends, law firms are entitled to engage in partisan representations to achieve political ends.

 

Likewise, supports efforts to discriminate on the basis of race. If it discriminates based on race, it can be sued for that. Actually, separately, the government has also criticized these firms for actually engaging in race discrimination, and that's something that could be a basis for. Both lawsuits and various kinds of executive branch action, but simply supporting efforts to discriminate based on the basis of race.

 

People are free to do that. You can support efforts to discriminate against whites, against blacks. This is supporting efforts to do something in this context simply means advocating. Simply means speaking. Or again, filing lawsuits likewise backs the obstruction of efforts to prevent illegal aliens from committing horrific crimes and trafficking deadly drugs within our borders.

 

To be sure, if it backed the obstruction of those efforts by giving money to people, I don't know who would attack police officers who are trying to arrest someone, or ICE agents or whatever that might be criminal. But that's not the way that they are backing the obstruction.

 

They're backing the obstruction of such efforts by litigating with regard to that. That is something that the First Amendment protects. Now, the orders in this case were focused on the First Amendment, but the lawsuit brought by Wilmer Hale and I think some of the other lawsuits as well are also talking about two other amendments.

 

Now we usually, this is free speech unmuted, not due process unmuted. But it's worth keeping in mind, in part because the Bill of Rights and parts of the Constitution are connected, that restricting, essentially punishing law firms for governments, punishing law firms for advocating on behalf of crimes interferes with people's ability to get legal assistance, which is protected in criminal cases by the Sixth Amendment and in most civil cases protected by the Fifth Amendment, the due process clause, that if law firms know that advocating for a particular position is going to get them retaliated against by the federal government, there will be a lot fewer law firms who are willing to advocate those for those positions.

 

And clients will therefore will not be able to exercise the rights to get a lawyer. So those are the challenges that are currently before the court. I'll get to in a moment the short but somewhat detailed order that Judge Leon issued in this case. But, but first, Jane, like, looks.

 

>> Jane Bambauer: Yeah, I, I do. Yeah. So I, I, I, so you've characterized the retaliation based on the wide range of litigation positions or against filing of certain lawsuits as covered by the First Amendment and also due process and maybe Sixth Amendment as well. I would actually, you know, there's some danger, I think, in suggesting that the actual act of litigating and, you know, anything that's filed formally with a, with, with a court as part of litigation is covered by the First Amendment as opposed to these other constitutional rights.

 

So for a minute, let me put aside, it's true, it's absolutely true that Trump, in part, you know, President Trump is in part retaliating against these firms for, for pure speech or advocacy to the public, like you know, taking a position or a, whether it's affirmative action or trans rights or whatnot, that I think you and I would both agree that if they are being retaliated based on that this is clearly covered by the First Amendment and we would have that conversation.

 

But suppose that President Trump was much narrower in his explanation and it's really exclusively based on filings that these law firms have made in certain cases that he sees as, you know, highly left leaning or something like that. The danger, I think, in treating this as a First Amendment issue.

 

So, so by the way, one, one initial question is when I, when I see the discussion of this as a First Amendment issue, I usually see references to NAACP versus Button and we can talk about that, but I'm wondering if there is any other precedent that maybe we should, we should talk about as well.

 

But, but the danger of treating this as a First Amendment issue is that when we, the way to understand the complex, how, why the complex rules involved in litigation do not violate free speech and why we don't have to go through a First Amendment analysis every single time somebody is, for example, prevented from being a member of the bar, you know, being an attorney, or anytime somebody can submit some evidence but not others.

 

The reason we can just kind of sidestep the entire First Amendment analysis, that would be quite tricky otherwise, in my mind has always been that there are certain things that yes, are accomplished through speech, but they are acts or transactions and the means and the reason we regulate them is because of the act or transactional nature of it.

 

And lawsuits and litigation is one such thing. This is what helps, I think, keep otherwise capacious understandings of the, of, of the right to free speech, which I tend to hold safe from claims by like for example, Robert Post and others who say, you know, taking the position that speech is speech is speech is speech is speech is ridiculous.

 

Because if you really think all speech is speech, then we wind up in these kind of absurdities where we're having to ask whether the laws of rules of evidence are constitutional, for example. So I don't know. I, I, I, for speech, I actually prefer having a clean boundary and the boundary begins or ends however you want to look at it when the filings, where the filings begin.

 

Curious what you think of that, both as a policy matter, but maybe more importantly whether whether the case law has clearly, you know, has clearly said something on this matter.

>> Eugene Volokh: Well, so first let me Just highlight, I think, an important point that you're making, which is that in court and in court filings, free speech rights, to the extent that they exist, are extraordinarily limited.

 

One thing that you learn is it's not only a foolish idea to insult the judge, let's say, or even insult opposing counsel in that it could be foolish because if you insult a judge, judge, being human, is more likely to rule against you. But it's also potentially sanctionable.

 

You could get fined, you could ultimately get disbarred if there's a pattern of such rude behavior. Partly because, as a practical matter, if you want to have the legal process be effective in settling disputes, people have to be civil to each other. Otherwise, incivility will just undermine the process, make it much harder to reach settlement and the like.

 

Likewise, the rules of evidence are speech restrictions in the courtroom, right? The judge may say, you're not allowed to argue to the jury the following things because they're hearsay or because they're privileged or whatever else. So I totally appreciate that free speech in the courtroom is sharply limited.

 

The same thing is true in filings. However, the First Amendment. And again, we're free speech unmuted, but that's shorthand for freedom of expression. In various ways, the First Amendment protects not just freedom of speech, but the. The freedom to petition the government for redress of grievances. And the court has-

 

>> Jane Bambauer: Petition clause so often ignored.

>> Eugene Volokh: So often ignored. The Court has recognized in, in a variety of cases that filing lawsuits is exercise of petition clause rights. Just to give an example. There's a line of cases that make clear that lobbying the legislature for anti-competitive laws doesn't violate antitrust law.

 

It may be successful in limiting competition, but everybody has a right to limit competition by arguing to the legislature. Maybe, maybe it violates antitrust law to limit competition by entering into cartel agreements or whatever else. But if you're limiting competition by, by asking the legislature to do something that's generally speaking, constitutionally protected, I oversimplify here, but basically that's so.

 

Well, what happens if you try to limit competition by suing your competitors? And the general answer is, so long as the lawsuit is not frivolous or based on kind of factual misstatements, generally speaking, that too is protected because the petition clause includes your right to petition the courts for redress of grievances as well.

 

And I think cases like naacpv, Button and other such cases also reinforce that. So it's quite clear that at least the client, if a client hires a law firm to go to court, they can't then be punished for just going to court unless they violate in the process some existing rules, like filing a frivolous claim, not just a losing claim, but a frilling frivolous claim, or like for example, lying to the court or something along those lines.

 

And-

>> Jane Bambauer: Okay, and so to protect the. Yeah, to protect the client, then you need to protect the law firm, because how can they.

>> Eugene Volokh: The law firm may have its own petition clause rights because it might say we are filing the petition, we're actually signing the petition.

 

To be sure, it's as agents of the clients. And some of the time we stress, we don't necessarily agree with the client, but some of the time we do agree with the client. So maybe it has its own petition clause rights. Maybe you might say it's a freedom of association claim that in order for the client's petition clause rights to be vindicated, he needs to be able.

 

He, I say he, often it's it either the business or the individual needs to be able to associate with a lawyer. In fact, for businesses, businesses aren't allowed to even file pro se, so they have to by law hire a lawyer to do that. So therefore, that petition clause has to protect the lawyer for retaliation as well, otherwise, that interferes with the client's rights.

 

So one way or the other, I think that the First Amendment, and in particular you might say the free speech clause, you might say the petition clause, you might say both. You might say both, plus the implicit right of association, which has been recognized as the free speech clause.

 

I think applies equally to petition, clause does indeed protect these law firm's decisions. Doesn't protect them from penalties for violating particular ethical rules. Again, if they, if they lie to the court in the process, of course they can be punished or again if they violate the rules of evidence and do do other such things.

 

But the actual filing and litigating within the rules of the lawsuits is I think, protected by the first.

>> Jane Bambauer: Yeah. Okay. You know, it's funny though, that just as a, you know, as a pure matter of theory, that still sort of bothers me. I have to say to me, the filing of the suit is more like the legislative act than it is like the lobbying of a legislator to get something done.

 

And one, but and if we don't, if we treat it more like lobbying, then that opens up to me at least the next question, which is why should you have to be a member of the bar to represent a client and to file a lawsuit?

>> Eugene Volokh: That's a great question.

 

>> Jane Bambauer: Yeah.

>> Eugene Volokh: Which other people have raised.

>> Jane Bambauer: Which they've raised. Yes.

>> Eugene Volokh: In this whole profession client speech debate, which I think we haven't talked about but is actually now going to be before the Supreme Court and I want to say Charles V Salazar. The implicit in that is the question like, can you require, isn't it a prior restraint on speech and petition to require lawyers to be members of the bar.

 

Or for that matter to require psychiatrists who want to deliver the talking cure to be licensed to psychiatrists. So that's an interesting, I think, and a very important question. And again, I think one important point you're getting at is that unlike most speech or unlike lobbying, filing a lawsuit actually does have direct legal effects.

 

>> Jane Bambauer: Exactly.

>> Eugene Volokh: If I sue you, not that I ever would, but if I sue you. Then-

>> Jane Bambauer: Bring it on.

>> Eugene Volokh: Then you, you. Have to file an answer or a motion to dismiss it. Probably pay money to hire a lawyer to do that. If you're a corporation, you absolutely have to hire a lawyer because corporations can't represent themselves.

 

If you fail to do that, then I can get a default judgment and you have to pay me money. Generally, if I just say things to you or say things about you that doesn't have the same kind of legal effect. And that's why the rules under the petition clause as to litigation are not identical to those as to lobbying or as to public advocacy campaigns.

 

You do have to comply with various legal rules. You can't file a lawsuit that is frivolous, you can make public. There's no, at least, I think you can't be sanctioned for making a frivolous argument on a podcast, right? I don't think you can be sanctioned for.

>> Jane Bambauer: God forbid.

 

>> Eugene Volokh: Yeah, yeah, exactly. Yes, that would be very bad. I don't think you can be sanctioned for making a frivolous argument in a letter to a legislator. You might be sanctioned if you actually defame someone for that, but bracketing that, you make a frivolous argument there. I don't think you can.

 

You can be sanctioned if you testify falsely, but if you're just making a silly argument that's inconsistent with the existing law, you can't be sanctioned in lobbying. You can be in the litigation process. So I totally appreciate they're not identical, but that is to say the coverage of the petition clause as to litigation and as to lobbying are not identical with each other.

 

And they're not identical with a free speech clause as it covers public advocacy, but I do think they provide a lot of protection here. And I think.

>> Jane Bambauer: Well, I'm on, I just wanna be on record that I actually think that's wrong as a matter of policy. I think it's distinguishable from NAACP versus Button.

 

So just to let that catch the audience up on that case, that case involved a state law that was going after what was characterized at least as improper solicitation of legal services or legal business. And targeting clearly was motivated to target the NAACP, which was holding kind of public sessions where they describe how the civil rights could be enforced or litigated through impact litigation.

 

And then, would try to convince some of the members of the audience to go ahead and bring impact litigation. And there the Supreme Court said that the law limiting lawyer legal solicitation, legal services solicitation, was unconstitutional. But that, to me, still, that's still prior to the filing of the suit.

 

And so, as you say, Eugene, when a suit is filed, the lawyer is acting as an agent of the judiciary as well. Of course, they are representative, and with that comes, you're right, the obligation of the other side to respond or else. And so, anyway, so maybe, I don't know, there's some reason to at least debate whether the First Amendment coverage question has been decided correctly.

 

>> Eugene Volokh: Podcast purposes. That's all the better. So let's look at what Judge Leon, federal district court judge in D.C. said in his order granting a temporary restraining order. So this is very early in the litigation process. So unsurprisingly, the judge's opinion was quite short. Sometimes these TRO's, as in for example, the general block case, another judge issued just a TRO, that just temporary restraining order that just indicated what the order was ordering and didn't even give much of an explanation.

 

But Judge Leon offered a little bit of an explanation. It's worth focusing on. So first, he says the First Amendment prohibits government officials from subjecting individuals to retaliatory actions for having engaged in protected speech. That's an important point. I think it's very well settled. But it's important to recognize it's not like President Trump is saying in his executive order, these lawyers are going to jail or even these lawyers, law firms are being fined or even these law firms are being disbarred, so it shall be illegal for.

 

I shouldn't say law firms, lawyers of these firms are being disbarred, so it shall be illegal for them to practice law. He's essentially saying the government isn't going to deal with, essentially deal with clients of those firms. So Section 3 says of the executive order talks about that the agencies, federal agencies, shall terminate any contract to the maximum extent permitted by applicable law for which Wilmer Hale has been hired to perform any service.

 

And it requires that government contractors disclose business they do with WilmerHale. So it's targeting government contractors, employment of WilmerHale for various kinds of deals they're trying to do with the government. That, the judge says, that is impermissible retaliation based on WilmerHale's exercise of First Amendment rights.

>> Jane Bambauer: Yes, so they could cancel the contracts because they're too expensive or something.

 

It's the wrong reason for canceling them.

>> Eugene Volokh: Right, partly that, but also partly, I think, it isn't just focused on possible contracts between the government and WilmerHale. I don't know how often the Government, Federal Government, hires WilmerHale among other things. They are very expensive and the government has lots of its own lawyers.

 

It's also focusing on entities that do business with WilmerHale. Section 3B says, heads of agencies shall review all contracts with WilmerHale or with entities that disclose doing business with WilmerHale. So the cancellation would be of contracts with, let's say, some, I don't know, some, some company that produces military equipment, but that has hired Wilmer Hale for negotiating the deal or even possibly for other deals.

 

The other form of retaliation in Section 5, where 5A says that agency heads shall provide guidance limiting official access from federal government buildings to employees of WilmerHale when such access would threaten the national security of or otherwise be inconsistent with the interests of the United States. So it's not actually a prohibition on WilmerHale employees setting foot in federal buildings as such, but it does indeed sort of signal that there may very well be such prohibitions.

 

And it orders agency heads to figure out if such prohibitions should be imposed just based on this very vague standards of interests of the United States. So I've heard some say, this order excludes Wilmer Hale from federal buildings, including courthouses. I don't think it does that by itself.

 

And it may be the courthouses may actually be different. But what it does is, it creates this risk which signals to WilmerHale and to other law firms and the clients-

>> Jane Bambauer: And the clients, yeah.

>> Eugene Volokh: If you, the client, hire WilmerHale, it may very well be that two months from now they're not gonna be allowed to set foot, even if not in a federal courthouse, but in the federal agency building where you're where they're supposed to be negotiating the contract.

 

And because that might happen two months from now, might not, but it might today, the client might say, well, how can I enter into a deal with you if I know you've got a target on your back? Because if you've got a target on your back, that's a target on.

 

Would be a target on my back essentially as a client as well. Interestingly so there are, so I say Section three and five. Section 1 is background. Section 4 deals with authorizing enforcement actions against alleged race or sex and other such discrimination, illegal discrimination in hiring and such by the firms.

 

That's a separate matter. It has to do with claims which might be accurate by the government that the firms are engaged in impermissible race discrimination or affirmative action programs and such. But, but that' not really much focused on here. Section two deals with security clearances and it says that essentially the.

 

The federal security establishment shall take. Shall immediately take steps consistent with applicable law to suspend any active security clearances held by individuals at WilmerHale pending a review of whether such clearances are consistent with the national interest and that the judge did not block, in part because the law about security clearances is its own separate beast, which does indeed provide a very broad discretion to the executive branch.

 

I don't know much about the law I just know enough about security clearance law to stress that the analysis, the First Amendment analysis as to the government buildings First Amendment analysis as the government contracts may end up being quite different from that for security clearances or perhaps vice versa.

 

It may be there's very strong First Amendment protection against the other kinds of retaliation, but when it comes to security clearances, a lot harder to tell. So I just want to stress I'm not sure that the firms will ultimately lose us to security clearances. I do think that the arguments that the administration gives has a lot more to do with these are our political adversaries.

 

>> Jane Bambauer: Right, yeah.

>> Eugene Volokh: To me Donald Trump than to any-

>> Jane Bambauer: Unsafe security, yeah.

>> Eugene Volokh: Yeah, right. Than any real threat to national security. But courts are much more deferential to executive branch judgments with regard to security clearances. Just to offer one particular example. Again, I'm not even sure how it would come out.

 

But let's look at First Amendment arguments in the security clearance context. If somebody says I think Xi Jinping is a fabulous world leader because he is the head of the Communist Party, Chinese Communist Party, which is the guiding light for the world going forward, and all countries should do whatever they excuse me, all countries and all people within those countries should do whatever they can to advance the cause of communism as understood by by the Chinese Communist Party.

 

I should stress very much not my view, but I will defend quite firmly the right of any person to. To defend, to articulate that view without being criminally punished or whatever else. Should this person get a security clearance? I'm pretty skeptical at least because among other things, security clearance is based on judgment about how much you support the various activities of our government.

 

If you are sufficiently hostile to them or friendly to our opponents, maybe it might be permissible to just deny you the security clearance because of your viewpoint. So that suggests the First Amendment analysis, even as well as the First Amendment analysis, wouldn't come out the same way. And of course, there are all sorts of statutory constraints on review of security clearances.

 

Again, I think that on the facts of this case, I think the argument for denying the firm security clearances appears to be very, very weak as a practical national security matter. But what I just said is aimed to highlight that the analysis with security clearances may very well end up being very different in many ways than.

 

>> Jane Bambauer: Yeah, and that ideology really does play an appropriate role or might, might at least play an appropriate role with security clearances, whereas it wouldn't, you know, whereas it would be more straight up retaliatory in the standard ways. Okay, so now, I understand a little better though the importance of the contract restriction, because this is not just a boycott of the firms, it's a secondary boycott.

 

To go back to our,

>> Eugene Volokh: There you go.

>> Jane Bambauer: The podcast we had on that topic. And so, you know, one thing I wanted to ask you was what you think the right, you know, what you think firms are, are thinking in terms of their strategy here? Because on one hand, as you suggest, I think firms would be very worried about having clients who are not interested in getting involved in the mess.

 

They don't fault the law firms or the lawyers necessarily, but they just don't want to take the time and resources to stick with a firm that's going to have to go through the hassle. On the other hand, I could also imagine some clients engaging in a counter boycott.

 

And so I think in the Trump too, we are back to, I was hoping after the last few years that we could start separating business and politics a little bit more. But I don't, it doesn't look like that's in our near future, I'm afraid. Yeah, so what do you think law firms are?

 

>> Eugene Volokh: So at various times in my 30 year career, not a lot of times, but a few times, people have approached me and said, volok, we're doing a dean search for our law school. Would you like to be or Somebody suggested that we talk to you as a possible dean.

 

And I don't think I laughed out loud. That would be rude. But I laughed on the inside. And the way they articulated is that I am totally temperamentally unsuited to being a dean. I also don't have experience, in part because I'm temperamentally, temperamentally unsuited to being an associate dean or director of an institute or whatever else.

 

That is the way of getting experience, but I think the deans do a tremendously important job. I'm happy I can free ride off of the work of good people. But I would hate to be that for a variety of reasons, one of which is that you can't just do what you think is right in some academic sense.

 

You've got to look out for the interests of the institution and the interests of its employees, the interests of its students, for a university, its clients, for a law firm. These are very difficult decisions that I won't presume to tell firms how to deal with in situations where it's quite clear they're facing very, very serious possible financial risks and professional risks.

 

Plus also there may be some partners at the firm who say to the managing partner, we just want to sit all of this nonsense out. Maybe we weren't terribly wild about some of this ideologically based pro bono representation you folks did. We think that the firm may have gone too far to the left.

 

And if this means that we're going to return more to just representing clients in the particular litigation they have, the deals that they have, and cut down on our kind of politicized sorts of representation, maybe not totally eliminated, but cut down or even provide more of a balanced portfolio representation.

 

We like that. I don't know if this was true at various lawyers of various firms, but I can certainly imagine there being people who say, look, I'm your partner. I'm telling you as one of your partners that this isn't just in my financial interest, but this is also something that I think is the right path going forward for our firm as a matter of kind of professional responsibility, not in the legal rules sense, but in the sense of the kind of way I want to practice law.

 

So the firms have to juggle the kind of institutional preferences of their employees. They have to juggle the ideological preference of the employees, have to juggle the economic concerns of the employees, and also have to worry about not just losing clients, but doing right by their clients. They may feel there's some obligation not to paint a target on their clients.

 

Back indirectly, I can't really speak to who's, who's right and who's wrong as to the decisions they make. I do think that if they challenge these, these claims, I think in considerable measure, at least as the section 3, section 5, contracting government buildings sections, they ought to prevail.

 

So this having been said, I do want to mention something that I've heard from some people. In fact, when I blogged about this on my blog, I got a response, actually very thoughtful response, I think, from a reader who said, essentially, look here, today, big law firms are being attacked.

 

But back when there were lawyers representing Trump in the 2016 and especially in 2020, the various election challenges, they were attacked, too. So, for example, there were congressmen who called for disciplinary boards, state bar boards to have lawyers disbarred. Not just have contracts canceling them, but actually have them legally prohibited from practicing law, because they'd represented President Trump.

 

And the congressman said, well, this is, they're wrong and they're trying to overturn the election. They were just saying we were trying to make legal arguments about why the election results as reported were actually incorrect. So I think that is a serious, an important question. And I offered on my blog a tentative and partial answer to it that I wanted to sort of pass along as well, because it also ties into some of the things that Jane mentioned.

 

So in some of the executive orders, President Trump not only says, these firms essentially took particular litigation positions that, that I don't like, but also claimed that they had violated various ethical rules here or there in various ways. I don't want to get into all the details, but sort of factual allegations that the firms violated the rules.

 

And in fact, there are important rules that constrain lawyers in how they litigate. So, for example, they aren't allowed to help their clients commit crimes. Some people might be shocked by that. Well, lawyers are allowed, in fact, sometimes required to help their clients evade responsibility or perhaps avoid responsibility for committing those crimes, but they can't, up front, actually assist in the commission of the crime.

 

They aren't allowed to make factual misrepresentation to courts. They aren't allowed to make legally frivolous arguments, though I think it's rare to be disbarred just because you've made a legally frivolous argument. Usually that leads to financial sanctions, and the existence of these disciplinary rules sometimes leads to demands that lawyers be punished for behavior that, viewed objectively, is perfectly legitimate.

 

People might use that call for bar discipline as essentially a weapon in trying to deter people from doing something. If you represent these clients, if you litigate against me, I'm going to. I'm going to complain. Usually the people who complain are just adversaries who are unhappy with. With the way that the opposing side's lawyer behaved and claim, this person suborned perjury or lied or whatever else.

 

Very often there's nothing to it, but sometimes there's something to it. And in any case, the process is the punishment. So sometimes, even if the lawyer is vindicated that after spending a lot of time and effort on money. So there's no doubt that this does indeed happen, sometimes justifiably, sometimes not to lawyers.

 

But I think what's really important is that the way our system works is by leaving those questions about whether the lawyer violated specific rules to courts and to bar bodies that ultimately bar disciplinary boards that ultimately are answerable to the courts. Not to some government official who says, well, I think you were unethical in your litigation against me, so I'm going to order that my government, the government that I'm running, stop doing business with you.

 

Among other things, that's especially true because no person should be judge in his own case, right? So what President Trump is upset about is the way that these firms had litigated against him. And human nature being what it is, even apart from what you think about President Trump more generally, any human would be a very biased judge of how his opponents have treated him.

 

But even setting that aside, even if it was about some supposed misconduct in some other context, that's something that should be decided by the established judicial bodies that resolve questions about who. About whether some rules were violated and not by an executive official who may often have a lot of political gripes with the lawyers involved.

 

So that's what I think is the difference. I think some of the calls for disbarring lawyers or disciplining lawyers or whatever for their litigation positions in, say, the 2020 election were probably unjustified. Some might have been justified. I don't know. I haven't read the records in all of cases.

 

A lot of those calls did not lead to cases, but at least that was the right within our system, the right mechanism for dealing with supposed litigation misconduct by lawyers and firms. And what the executive orders are doing is most definitely not consistent with that mechanism. So first, when it comes to the administration's objections to just the kinds of cases the firms litigate, that's a First Amendment problem, although we may not fully agree with that.

 

I think also a Fifth and Sixth Amendment problem in terms of interfering with the right to counsel.

>> Jane Bambauer: For sure.

>> Eugene Volokh: Those clients and future clients, but even if the claim is, well, it's not just the causes that they litigated, but the way they litigated them was unethical.

 

The way they litigated them because it violated certain rules. That's not something that the President should just sort of be deciding based on his judgment about whether those rules were violated.

>> Jane Bambauer: Okay. Makes sense.

>> Eugene Volokh: A lot more to say about this. We've already said a lot. I'm sure there's a lot more to say, and certainly lots of people, including people wearing black robes, are going to saying a lot more about this.

 

So, Jane, always a great pleasure.

>> Jane Bambauer: Yes, same to you. Looking forward to seeing you in a couple weeks.

>> Eugene Volokh: Absolutely, see you then.

>> Presenter: This podcast is a production of the Hoover Institution, where we advance ideas that define a free society and improve the human condition. For more information about our work, or to listen to more of our podcasts or watch our videos, please visit hoover.org.