What can we do to protect the Rule of Law? First, we must be united in defending any law firm or lawyers singled out by President Trump’s executive orders.
On Sunday, March 9, 2025, President Donald J. Trump announced on Fox News, “We have a lot of law firms we are going after.” This was no idle threat. Law firms that represent clients who have opposed Trump have already been targeted and economically punished in executive orders. These orders will have a chilling effect on firms that will result in the denial of access to justice both for those opposing the administration’s actions and individuals who are simply vulnerable—immigrants, environmental activists and more. These actions dangerously undermine the Rule of Law, the foundation of our democratic society.
These orders must be viewed in the context of other recent events that threaten the Rule of Law, including but not limited to the following:
- Most ominous of all the recent developments is one that may have also received the least attention. Along with the firing of the Joint Chiefs of Staff, the top Judge Advocate Generals for the Army, Navy and Air Force have also been fired. These “TJAGS” (also known as “The JAGS”) “provide legal advice to military commanders on operational law … international law and rules of engagement during operations … JAGs play a significant role in accountability, investigating potential violations of military law and the laws of armed conflict. They participate in after-action reviews, help determine if misconduct occurred, and may be involved in court-martial proceedings when service members face charges for violations of the Uniform Code of Military Justice or laws of war.” In response to concerns about the firing of The JAGs, Defense Secretary Pete “Hegseth called the JAGs potential “roadblocks” to the president’s orders.”
- In the past six weeks, across the federal government, over 20 Inspectors General, lawyers who serve as watchdogs of the ethics of each of their agencies, have been summarily fired, in violation of statutory provisions that limit the reasons for, and timing of, the terminations of their employment.
- Career employees at the Department of Justice (DOJ) who had served for decades have been fired or demoted, including the counsel for the department’s Office of Professional Responsibility, which investigates prosecutorial misconduct.
- Judges who have ruled against the current administration have been threatened with impeachment.
- Last week, the acting U.S. Attorney for the District of Columbia threatened the dean of Georgetown Law School, a private Jesuit institution, for maintaining policies that promote diversity, equity and inclusion and stated that no Georgetown Law students or alumnae would be hired by his office unless those policies were abolished.
- On Feb. 14, the Federal Trade Commission prohibited “FTC political appointees from holding leadership positions in the ABA, participating in or attending ABA events, or renewing any existing ABA memberships.”
- The public service [student] loan forgiveness program was directed to exclude organizations that aid violations of immigration law or engage in a “pattern of aiding and abetting illegal discrimination” with no definition of those terms, a condition that can deter people from joining or remaining at Public Defender and Legal Services offices.
Amid all these events, the administration directly targeted two law firms, threatening criminal investigation, barring them from federal contracts and federal buildings, and stripping them of security clearances necessary to their representation of certain clients. These law firms, Covington & Burling and Perkins Coie are large, influential institutions, with many former government officials and prosecutors—from both parties—in the ranks of their partnerships. But both firms had represented interests opposing Trump during his candidacies. In Covington’s case, it had provided pro bonorepresentation to former Special Counsel Jack Smith, who led the Trump prosecutions that were ended by the 2024 election. Perkins had represented the Democratic Party in the 2016 election and was involved in developing the Steele dossier.
These executive orders do more than strip attorneys of security clearances, which is the executive’s prerogative if done properly. The Covington order also directs “the Office of Management and Budget to issue a memorandum to all agencies to review all government contracts with Covington & Burling LLP.” After this review, “to the extent permitted by applicable law, heads of agencies shall align their agency funding decisions with the interests of the citizens of the United States; with the goals and priorities of my administration as expressed in executive actions, especially Executive Order 14147 of Jan. 20, 2025 (Ending the Weaponization of the Federal Government); and as heads of agencies deem appropriate.”
In other words, we can foresee that Covington’s government contracts will be canceled. Of course, any influence Covington had as an advocate before government agencies will be gone. And for the attorneys who lost their security clearances or who were involved with representing Jack Smith, their employability may be irreparably damaged.
Notably, the Covington order was issued without regard to the substance of the advice that Covington gave Smith—no one knows what Covington advised Smith and whether it was even advice the Trump team would have supported. Instead, the problem is that Covington provided advice to Smith at all. If we do not unite in resistance against this order, we will be complicit in creating a legal system where certain people or causes are too dangerous to represent. (If you think we exaggerate, consider the decision-making process your firm would use today if faced with the opportunity to represent or hire former Special Counsel Jack Smith.).
The Perkins Coie executive order is even more expansive and troubling. It prohibits government agencies from hiring Perkins employees and even prevents them from having access to government buildings. In what is perhaps a preview of how the administration plans to “go after” other law firms, consider this warning to all “large, influential or leading law firms:”
Sec. 4. Racial Discrimination. (a) The Chair of the Equal Employment Opportunity Commission shall review the practices of representative large, influential, or industry-leading law firms for consistency with Title VII of the Civil Rights Act of 1964, including whether large law firms: reserve certain positions, such as summer associate spots, for individuals of preferred races; promote individuals on a discriminatory basis; permit client access on a discriminatory basis; or provide access to events, trainings or travel on a discriminatory basis.
(b) The Attorney General, in coordination with the Chair of the Equal Employment Opportunity Commission and in consultation with State Attorneys General as appropriate, shall investigate the practices of large law firms as described in subsection (a) of this section who do business with Federal entities for compliance with race-based and sex-based nondiscrimination laws and take any additional actions the Attorney General deems appropriate in light of the evidence uncovered. [Emphasis added].
This language must be read in conjunction with the Feb. 5, 2025, Memorandum from the Office of the Attorney General that vows to “investigate, eliminate and penalize illegal DEI and DEIA preferences, mandates policies, programs, and activities in the private sector …” It is not beyond imagining that private entities will face criminal prosecution for violating federal civil rights laws because of their efforts to maintain diverse workforces. Almost every law firm and bar association in the country has worked to remedy historical barriers to advancing highly qualified minorities and women in the legal profession. That work has been successful to a point, but it is far from complete. The challenge will be how to complete this work when diversity, inclusion, and equity have become—not desired and valuable goals—but anathema.
Imagine if the defense lawyers representing the Jan. 6 defendants had been singled out for this punitive action. It would have been an unthinkable violation of the Fifth and Sixth Amendments. It would have upended all the assumptions that support our justice system and the Rule of Law. The U.S. courts website defines the Rule of Law as “a principle under which all persons, institutions, and entities are accountable to laws that are: publicly promulgated, equally enforced, independently adjudicated, and consistent with international human rights principles.” In sum, the Rule of Law limits exercising authoritarian power.
Last week, the American Bar Association, for the second time in the past four weeks, issued an urgent statement on the need for lawyers to protect the Rule of Law and the “values that guide us.” The ABA “called upon every lawyer to insist that the government adhere to four major principles of law that have guided our country for over 200 years: Defending Judges and Courts, Acknowledging the Role of the Courts, Adhering to the Rule of Law, and Respecting the Separation of Powers and the three co-equal branches of government with distinct duties and responsibilities.” If you are an ABA member, you received this statement in your mailbox. If you are not an ABA member, please read it here. This statement is in response to a clear and present danger to the ability of our civil and criminal justice system to act independently through lawyers and judges who operate and rule without fear of retaliation and retribution.
What can we do to protect the Rule of Law? First, we must be united in defending any law firm or lawyers singled out. According to the New York Times, Perkins hired the top litigation firm, Williams & Connolly, to defend its First Amendment rights. Sadly, the New York Times reported that “several other firms declined to represent Perkins Coie, fearing that they, too, could become targets of Mr. Trump’s ire,” See https://www.nytimes.com/2025/03/10/us/politics/trump-perkins-coie.html. This is the intimidation we must fight. We must speak, inside and outside of our profession, to explain and emphasize that adherence to the Rule of Law transcends the politics that have divided our communities, families and country. We must make clear to those outside the profession that lawyers are held accountable through a rigorous disciplinary system and that the transgressions alleged in the executive orders are the exercise of zealous advocacy that the Rules of Professional Conduct permit. We must protect access to the courts, which at least aspire to be a level playing field where the rich and powerful can be held accountable, where the individual can sue the corporation, and the citizen can sue the government. In our system of checks and balances, the courts are the final arbiters. Intimidation of private law firms to prevent access to the courts is a fatal blow to the Rule of Law.
We must also unite to support judges. Lawmakers have introduced at least three resolutions calling for the impeachment of judges who issued decisions unfavorable to the current administration’s actions. These resolutions represent a campaign to remove judges for rulings perceived as blocking Trump’s policies. Contending that adverse rulings amount to high crimes and misdemeanors effectively lowers the bar for impeachment to the point where any judge who rules against the administration could be deemed impeachable. Pennsylvania Rule of Professional Conduct Rule 8.2 Rule 8.2 seeks to preserve the public’s confidence in the fairness and impartiality of the courts by barring false or reckless criticisms. Although the rule does not explicitly say lawyers must “defend” the judiciary in every circumstance, it does emphasize that lawyers’ honest and accurate assessments of judges can improve the administration of justice. Conversely, baseless attacks harm the judiciary’s reputation and undermine the Rule of Law.
We have each taken an oath to protect the Constitution. As a profession, we must stand up for our right to represent unpopular viewpoints, as guaranteed by our federal and state Constitutions and the Rules of Professional Conduct. SeePennsylvania Rule of Professional Conduct 1.2 (b).(“A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities.”). Comment [5] to the Model Rules of Professional Conduct Rule 8.4(g) likewise states “A lawyer’s representation of a client does not constitute an endorsement by the lawyer of the client’s views or activities.” We must recognize that threats against lawyers and judges are threats against democracy and harm us all. Every law firm, every bar association must speak out against the targeting of law firms.
Every year, Law Day is celebrated on the first of May and is based on a different theme, developed by the ABA. This year’s theme is: “The Constitution’s Promise: Out of Many, One.” The theme is based on the Preamble to the Constitution which starts with the phrase, “We the People, in Order to Form a More Perfect Union.” The ABA has set this theme so that we may “explore and renew our duties to one another under the Constitution and our democratic norms.” As lawyers, we are both duty-bound and uniquely equipped to protect our democracy. We must unite to protect the ideal that we all believe in: that the Rule of Law is the foundation of a just society. It is up to each one of us to act to protect that foundation upon which our freedom, our happiness and our profession is built.
Ellen Brotman, of Brotman Law in Philadelphia, represents individuals before licensing boards, providing effective, caring and efficient assistance. She has served as an assistant federal defender in Philadelphia and practiced in small, medium and large firms with a focus on criminal defense, appellate advocacy, professional responsibility and ethics.
Jules Epstein is director of advocacy programs at Temple University Beasley School of Law.
Amy J. Coco, of DiBella Weinheimer in Pittsburgh, has for more than three decades focused her practice on representing lawyers, judges, and law students in civil litigation, ethics, and professional licensure matters, as well as providing professional responsibility representation and counseling, risk management and law practice management guidance—without regard to political affiliation.
Reprinted with permission from the March 11, 2025 issue of The Legal Intelligencer. © 2025 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or asset-and-logo-licensing@alm.com.