When President Donald Trump signed an executive order in March sanctioning the law firm Perkins Coie for representing Hillary Clinton’s 2016 presidential campaign, hundreds of other law firms signed a friend-of-the-court brief defending Perkins Coie. But hundreds more did not.
As the draft of the amicus brief circulated among top law firms, the decision of whether or not to sign it roiled the legal community, including in Atlanta. In the end, the largest and wealthiest firms in the city, including King & Spalding, Troutman Pepper, Alston & Bird, and Dentons, stayed on the sidelines for the public fight against the Trump administration. But a handful of smaller firms, including Bondurant Mixson & Elmore, Caplan Cobb, and Krevolin & Horst, signed on.
Bondurant Mixson & Elmore, was founded by famed civil rights attorney Emmet Bondurant, whose first high-profile case came in 1964 against the state of Georgia in Wesberry v. Sanders. In the dispute over Georgia’s congressional districts and racial representation, Bondurant successfully argued what became the “one-person-one-vote” principle before the U.S. Supreme Court.
With that history, Mike Terry, a senior partner with Bondurant, said signing on to the brief against the Trump administration was “an identity moment” for the partners at the firm and ultimately not a difficult decision.
“That is not to say that we don’t recognize the potential consequences,” he said. “But there are times when you either stand up for what you believe in, and for who you like to think you are, or you have to admit that you don’t really believe in that and you are not really who you have said you are.”
The worst potential consequence for the Bondurant firm and others would be what already happened to Perkins Coie. In the executive order Trump signed, he ordered that the firm’s lawyers would no longer have access to federal buildings, including federal courthouses; its attorneys would lose their security clearances; and, most importantly, the firm and all of its clients would lose any federal contracts they had signed.
It was the death penalty for the law firm, as a result of what Trump called “dishonest and dangerous activity” of being the lawyers for the Clinton campaign.
Perkins Coie sued to stop the order from going into effect and the brief from other firms was meant to strengthen the effort. It called the executive order “a grave threat to our system of constitutional governance and to the rule of law itself.”
Anthony Michael Kreis, an assistant professor at Georgia State College of Law, said Trump’s order endangers Americans’ basic ability to hire a lawyer if those same lawyers have to fear retribution from the president for taking a case he does not like. The executive order also gives the president unprecedented power to dictate who and how Perkins Coie hires staff and conducts its business.
“I end my class each year with the same talk to students and I go back to the Shakespeare line, ‘The first thing we do, let’s kill all the lawyers,’” Kreis said. “It’s about the rule of law and the place lawyers have in it.”
Unlike most jobs, lawyers swear an oath to uphold the Constitution in order to be a member of the profession. Kreis said that oath means lawyers are supposed to stand up for the rule of law “when no one else will.” Signing on to the amicus brief for Perkins Coie was a chance to do that.
“The oath means that lawyers have an obligation sometimes to just say, ‘No. And this is not lawful and it is wrong,’” he said. “The kind of abdication we have seen from some law firms of being unwilling to just say, ‘No, this is not lawful. It is wrong and is inconsistent with the rule of law,’ has not served the profession well.”
The reasons for not signing on to the brief, according to lawyers inside some of Atlanta’s largest firms, range from a disagreement among partners over whether or not to sign, a potential conflict of interest for an existing client, potential damage to a client’s contracting business, or simply a desire not to attract Trump’s attention and anger.
As one lawyer at a large firm told me, “These firms are big businesses. Why put a spotlight on yourself when you don’t have to?”
Although King & Spalding was among the firms that did not sign on to the amicus brief, it attracted Trump’s ire when one of its partners, Robert Hur, signed on to represent Harvard University in its lawsuit this week over Trump’s move to withhold billions of dollars of funding from the school. Hur was a senior Justice Department official during Trump’s first term, but has now taken on the risk of taking on one of the president’s biggest critics as a client.
In the weeks since Trump signed the order against Perkins Coie, he has signed similar orders against other firms, including one for helping to prosecute Jan. 6 rioters and another for once employing former FBI Director Robert Mueller, whom Trump accused of weaponizing the justice system against him when he investigated Russia’s interference in the 2016 election.
Separately, the administration has signed settlements with other firms in which they have committed to do tens of millions of dollars worth of pro bono work approved by the president to escape similar sanctions. Trump recently said he may have the firms work on the many trade deals he has promised are coming soon.
One by one, he is bending the firms to his will and neutering the resistance against him.
“When we look back in time, the firms that kind of wave their hands and hope to wiggle their way out of this through deals with Trump, I don’t think they will be looked back on in a favorable way,” said Kreis. “But those firms are now being far outnumbered by those who are willing to stand up.”
The deals that law firms have signed with the president essentially make them Trump’s new, free legal team, while he has hobbled the others he has targeted with executive orders. It’s easy to see why anyone would want to steer clear of the administration entirely. But given the stakes for the practice of law itself, you have to admire the firms that chose the other path.
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