Presidential Power vs. The First Amendment, Big Law, Law School Deans, and Bar Associations

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President Trump has wielded his executive authority in a pointed and punitive manner against Big Law firms that have represented his political opponents and have provided legal services to clients with whom President Trump personally disagrees.  With Presidential Memorandums and Executive Orders (E.O.), President Trump has terminated government contracts with the firms, revoked security clearances from lawyers, barred the firms’ lawyers from government property, and threatened third parties with similar punitive measures that conduct business with the firms.  This begs the question: Can the government punish lawyers and law firms for representing clients or positions in court that the government does not like?

Executive orders against Big Law fly off the Resolute Desk.

The Administration claims that the Big Law’s clients and viewpoints “threaten our national security, homeland security, public safety, or election integrity”.  President Trump’s WilmerHale Order was due to “partisan representations to achieve political ends”.  In the case of Perkins Coie, President Trump declared, “Perkins Coie has worked with activist donors including George Soros to judicially overturn popular, necessary, and democratically enacted election laws, including those requiring voter identification.” In an E.O. against Jenner & Block, the President stated, “[Jenner & Block] supports attacks against women and children based on a refusal to accept the biological reality of sex.” 

The list of law firms targeted by President Trump has continued to grow. Against Paul Weiss, President Trump justified his E.O. in part due to: “a Paul Weiss partner and former leading prosecutor in the office of Special Counsel Robert Mueller brought a pro bono suit against individuals alleged to have participated in the events that occurred at or near the United States Capitol on January 6, 2021” Lastly, as to the E.O. against Susman Godfrey, President Trump explained, “Susman spearheads efforts to weaponize the American legal system and degrade the quality of American elections.” The President took action against Susman Godfrey specifically because the firm defended the outcome of the 2020 presidential election, where President Joe Biden defeated President Trump.   

In each of these executive orders, and others, the President specifically outlined viewpoints and the choice of clients as motivations for the punitive action taken by the Administration.  The First Amendment looms large and is the undercurrent that will determine the legality of the President’s actions against Big Law.

President Trump’s actions have shocked deans of law schools and bar associations.

Legal professionals, running the gamut, have condemned the Administration’s conduct.  On March 26, 2025, seventy-nine deans of law schools across the nation issued a joint statement condemning President Trump’s actions; the deans unanimously agreed that the President’s orders violate the Firms’ First Amendment rights.  The deans penned the following: 

We write to reaffirm basic principles: The government should not punish lawyers and law firms for the clients they represent, absent specific findings that such representation was illegal or unethical.  Punishing lawyers for their representation and advocacy violates the First Amendment…

Similarly, on March 26, 2025, the American Bar Association, alongside eighty other bar associations, also opined on the constitutionality of President Trump’s orders.  Collectively, the bar associations stated: 

We support the right of people to advance their interests in courts of law when they have been wronged.  We reject the notion that the U.S.  government can punish lawyers and law firms who represent certain clients… We cannot accept government actions that seek to twist the scales of justice in this manner.  We reject efforts to undermine… the profession.  We will not stay silent in the face of efforts to remake the legal profession into something that rewards those who agree with the government and punishes those who do not…

Hundreds of law school professors oppose President Trump’s orders.

Law school professors have also sounded the alarm.  On March 29, 2025, over ninety members of Harvard Law’s voting faculty penned a letter to students.  The professors wrote:

The rule of law is imperiled when government leaders single out: lawyers and law firms for retribution based on their lawful and ethical representation of clients disfavored by the government…, threaten law firms and legal clinics for their lawyers’ pro bono work or prior government service… and punish people for lawfully speaking out on matters of public concern.

The letter explained that while the professors vary in their political persuasions, they are united in preserving the rule of law and First Amendment rights of lawyers.

Similarly, 363 law professors across the country signed an amicus brief in support of Perkins Coie.  Amicus briefs, otherwise known as a “friend of the court brief”, are a way for non-parties to contribute to litigation by arguing in favor of a party’s position.  Stanford Law faculty and members of the Deborah L.  Rhode Center on the Legal Profession penned the brief.  The brief highlights that the Executive Orders are contrary to the rule of law and the legal profession; the brief states its goal was “to emphasize the threat that the President’s Executive Order presents to the independence and integrity of the legal profession, the rights of clients to seek redress in the courts, and, by extension, the rule of law” The brief concludes with:

The [Perkins Coie] Order names only one law firm, but in so doing, it dangles a Sword of Damocles over all those who refuse to place loyalty to the President above the interests of their clients and the law.  It seeks to destroy a functional bar that ensures the government follows the law, substituting instead a bar that is, at best, reluctant to challenge the government, and, at worst, one that is a plaything of the party in power.

The drafters of the amicus brief also intend to support the forthcoming litigation efforts of other Big Law firms.

Professor Nicole Ligon, a First Amendment scholar at Campbell Law School, offered her thoughts to the Campbell Law Observer, saying, “It’s a core First Amendment principle that the government cannot penalize lawyers based on the viewpoints they or their clients express.  Courts have consistently applied that rule across administrations and ideologies.”

Additionally, Professor Tuan Samahon from Villanova’s Charles Widger School of Law wrote on LinkedIn, “When historians write about this era, the capitulators will be on the wrong and shameful side of history… Courage today, in the face of ham-fisted authoritarianism, demonstrates to existing and prospective clients, and to employees and partners, a present-day capacity and willingness to advocate zealously for your clients”.  

“If lawyers and law firms won’t stand up for the rule of law, who will?” -Keker, Van Nest, & Peters

Law firms across the country are taking actions to publicly support the firms that the Administration has targeted.  On March 30, 2025, the senior partners at Keker, Van Nest, & Peters published an opinion piece in the New York Times calling on Big Law firms to resist the Administration’s orders, writing: 

Lawyers and big firms: for God’s sake, stand up for the legal profession, and for the Constitution.  Defend the oath you took when you became officers of the court.” The partners stressed that “the noblest thing a lawyer can do is to stand up against the government on behalf of a client that the government seeks to destroy. 

Additionally, over 500 law firms signed a “friend of the court” amicus brief in support of Perkins Coie’s position that the Administration is violating the firm’s First Amendment rights.  The brief states, “Amici seek to provide the Court with a broader perspective on the threat that the Executive Order—which is an unconstitutional act of undisguised retaliation for representations that Plaintiff has undertaken in the past—poses to the integrity of our adversarial system, to the ability of clients to obtain the zealous representation to which they are constitutionally entitled, and to the rule of law itself.”

Even individual lawyers are drumming up public support for resistance against the Administration.  Making national news, Rachel Cohen, a Harvard graduate and third-year associate at Skadden, resigned in the face of Skadden’s submission to President Trump.  Cohen shared her story online, which went viral on TikTok, and she gained close to 250,000 followers.  Since Cohen’s resignation, she has penned an open letter that Big Law associates and partners are encouraged to sign.  Cohen’s open letter is an effort to put pressure on reluctant Big Law firms to act.  The letter reads: 

Our hope was that our employers, some of the most profitable law firms in the world, would lead the way.  That has not yet been the case, but it still very much can be.  It is easy to be afraid of being the first to speak.  We are removing that barrier; we are speaking.  Now it is our employers’ turn. 

Additionally, Cohen has created a law student toolkit to assist law students in speaking against the Administration’s conduct.  The toolkit is meant to “encourage law students to use their voice in an impactful way to respond to Big Law firms and make clear that the incoming generation of attorneys will not stand for the administration’s actions and expect firms to fight back.” 

Cohen has garnered the attention of Congress and attended a congressional hearing titled  “Restoring Accountability: Exposing Trump’s Attacks on the Rule of Law” to explain her views on the Administration’s E.O.s.  On April 7, 2025, she testified, “The administration cannot pick and choose who gets representation.  It cannot use executive power to scare lawyers out of advocacy.  If we allow any President to dictate who deserves a lawyer, our legal system fails.” She further testified, “Our adversarial legal system only functions when parties have representation.  Everyone deserves an advocate.” Cohen ultimately called upon the entire legal profession and lawmakers to defend lawyers’ ability to represent clients without fear of retribution from the government.

Big Law reacts, but not on a united front.

Some of Big Law’s firms have been willing to sue the Administration, while others have surrendered to President Trump’s demands.  Paul Weiss negotiated with President Trump, and the President revoked the E.O. against Paul Weiss after the firm committed forty million dollars worth of pro bono service, “promoting the full political spectrum,” and to revamp hiring practices to abandon diversity, equity, and inclusion (DEI) in hiring.  Although an E.O.  did not target Skadden, the firm proactively agreed to commit 100 million dollars worth of pro bono services to causes that both President Trump and Skadden agree upon.   Similarly, Willkie Farr was concerned they would be targeted next, so the firm similarly brokered an agreement with the President, promising 100 million dollars worth of pro bono services.  

Taking the opposite approach, Perkins Coie, Jenner & Block, Wilmerhale, and Susman Godfrey have sued the Trump Administration arguing that they are being targeted and blacklisted in violation of the First Amendment.  Jenner & Block’s complaint alleges that the firm’s First Amendment rights were violated.  The firm argues, “By its plain terms, the Order punishes Jenner & Block for advocating in court on behalf of immigrants and transgender individuals, for engaging in ‘partisan representations,’ and for supporting what the President has determined are ‘destructive causes.’”

Similarly, in WilmerHale’s complaint, the firm argues that the President cannot punish the firm for its viewpoints.  The complaint states, “While the President may disagree with some of the viewpoints that he attributes to WilmerHale and/or its clients, the First Amendment does not allow him to punish the Firm based on those viewpoints.” WilmerHale further explains, “Nor can the President constitutionally punish WilmerHale attorneys’ expressive decisions to represent certain clients or causes and not others…”.  WilmerHale has employed one of the most consequential conservative lawyers, Paul Clement, for its courtroom arguments.  Clement is a superstar conservative litigator who has argued over one hundred cases at the Supreme Court.  While he may be a conservative, he views President Trump’s actions as a violation of the First Amendment and as a threat to the rule of law.

Perkins Coie’s complaint argues that the Trump Administration cannot legally demand fealty from Big Law firms: 

The First Amendment forbids the government’s use of a patronage system whereby it conditions government benefits, such as contracts, access to government facilities or employment, or security clearances on political support or affiliation… The Order punishes Perkins Coie for the lack of political fealty and conditions the further receipt of government benefits on adherence to the President’s political points of view.  

Susman Godfrey has also sued President Trump and his Administration.  The firm argues that “The [E.O.] violates the First Amendment’s prohibition on viewpoint discrimination.  The [E.O.] attributes to Susman Godfrey certain viewpoints and then punishes the Firm and all its employees and clients because the President disagrees with those viewpoints.” 

The courts have begun to speak: “The injuries to plaintiff here would be severe and spill over to its clients and the justice system at large.”

Two federal judges, so far, have agreed that the President’s actions are likely unconstitutional.  Judge John Bates, a Bush appointee, granted a temporary restraining order (TRO) and enjoined the Administration from fully implementing the E.O.  against Jenner & Block.  Similarly, Judge Richard Leon, also a Bush appointee, ruled that “there is no doubt this retaliatory action chills speech and legal advocacy, or that it qualifies as a constitutional harm”, and granted a TRO and enjoined full implementation against WilmerHale.  

What does existing case law say?

A recent case supports the contention that President Trump’s E.O.s and Presidential Memorandums are unconstitutional and violate the First Amendment.  In National Rifle Association v.  Vullo, the NRA sued New York, arguing that the State “allegedly used the power of [the government] to target gun promotion by going after the NRA’s business partners.” The Supreme Court unanimously held that New York violated the NRA’s First Amendment rights by “threatening enforcement actions against those entities that refused to disassociate from the NRA and other gun-promotion advocacy groups”.  The Court reasoned that “the NRA plausibly alleged that [New York] violated the First Amendment by coercing… entities to terminate their business relationships with the NRA in order to punish or suppress the NRA’s advocacy”.  

Pro-gun advocacy was the speech the government was trying to quash in NRA v.  Vullo.  Similarly, the Trump Administration may be trying to quash the viewpoints Big Law represents in court.  The State of New York took punitive actions to impact the NRA’s ability to conduct business in the State.  Here, the courts may determine that the Trump Administration is doing the same by threatening third parties that do business with targeted firms, preventing government contracts with the firms, and preventing lawyers from entering government buildings.  New York’s coercion against entities from doing business with the NRA was a violation of the First Amendment.  Trump’s actions against Big Law may similarly be a violation of the First Amendment.  

Conclusion

It is rare for near-unanimous agreement within the legal profession to occur; yet, countless bar associations, deans of law schools,  law professors, and practicing attorneys have taken a public stance against the President’s Orders, in their view, to protect the legal profession’s First Amendment rights.  The profession, regardless of political persuasion, is near-unanimously arguing that the First Amendment protects lawyers and law firms from coercion, retribution, and punishment by the government due to disfavored speech.  The Trump Administration must square its conduct with the First Amendment, which is likely to be impossible.