Cristian Farias:
This is Cristian Farias. I’m a legal journalist and your host on the Bully’s Pulpit. This is our second to last episode of the season and true to form we’re going deep on a topic that has been troubling us for quite some time. Donald Trump’s attacks on lawyers and the legal profession and specifically, big law. At first blush, you may think, “What’s the big deal? Lawyers at big corporate law firms, after all, make a lot of money. They can sue and defend themselves in court.” They roll deep. Some of these big firms have thousands of lawyers, yet Trump, in an evil genius kind of way found their weakness and he’s squeezing them in ways that no president has ever squeezed them before.
Bob Bauer:
Every single case so far litigated against the law firm has been lost by the administration, but not just lost by the administration, but lost hands down with the courts making it very, very clear there wasn’t a shred of a defense available to the government of these executive orders.
Cristian Farias:
That’s Bob Bauer, former White House counsel to then President Barack Obama. This week he and Knight Institute Senior Council Scott Wilkens join me to discuss the Trump administration’s attack on law firms. But before I speak to them, let’s go over this week’s news and who’s fighting or folding in the face of unprecedented attacks on their First Amendment rights. This week was a big one for the Knight Institute, in AAUP vs. Rubio, the case challenging the Trump administration’s policy of arresting, detaining and deporting pro-Palestinian student advocates. The legal team filed what’s known as a post-trial brief. What this brief does is summarize for the judge all the evidence presented at trial that proves their case as well as proposes the legal conclusions the judge should reach. The government submitted its own brief arguing why the judge should not find the government liable.
According to the brief by the Knight Institute, quote, “Not since the McCarthy era has the federal government so flagrantly abused its power to silence non-citizen speakers and suppress their lawful speech. The court should declare the ideological deportation policy unconstitutional and proceed to the remedy stage.”
While we’re on this topic, the student newspaper at Stanford, the Stanford Daily, is suing Secretary of State Marco Rubio and Homeland Security Secretary Kristi Noem over the very same policy being challenged in the AAUP case. The case was filed in the Northern District of California, and what’s interesting about it is that it directly challenges the parts of federal law Rubio been invoking to go after pro-Palestinian protesters. They call this part of the law the, quote, “deportation provision,” which the student paper says is unconstitutional when applied to non-citizen students who wish to engage in protected speech.
Sadly, it’s the end of the road for the Corporation for Public Broadcasting after nearly 60 years since its establishment by Congress, CPB announced that it’ll wind down operations following the Republican-led Congress’ misguided decision to defund it. I’m not going to lie, I felt a little something when I read their press release announcing the shutdown. I’ll quote directly from it, “Public media has been one of the most trusted institutions in American life, providing educational opportunity, emergency alerts, civil discourse, and cultural connection to every corner of the country. We are deeply grateful to our partners across the system for the resilience, leadership, and unwavering dedication to serving the American people.” To learn more about this terrible campaign against public media by the Trump administration, check out episode four of our show.
And contrary to press reports that I initially thought were curiously sourced to say the least, there’s new reporting suggesting that Harvard University is not looking to settle with Trump for $500 million. Alan Garber, the university’s president, has told faculty that he was not considering such a deal according to the Harvard Crimson, but new reporting in the New York Times suggests that the university was open to it, only to have a change of heart after Brown and Columbia settle for less money. As we saw on last week’s show, higher education is getting job owned. That refers to the government strong arming individuals or private organizations to do its bidding. And higher ed is doing just that. The safest bet when faced with an executive branch that cannot be trusted is to not give in and keep fighting, which is what Harvard is doing in its First Amendment challenge to Trump’s extortion campaign,
And two separate investigations, one from Reuters and the other from ProPublica point to the same conclusion, the Trump administration’s crackdown against law firms is working. That is, this policy of intimidation against big law, it’s truly impacting firm’s ability to provide pro bono services for clients and causes that truly need it. Pro bono literally means for the public good. According to Reuters quote, “Dozens of major law firms wary of political retaliation have scaled back pro bono work, diversity initiatives and litigation that could place them in conflict with the Trump administration.” We’ll put up links to both of these investigations in the show notes. They’re well worth your time.
As that final item in our news roundup makes clear, Trump’s attacks on law firms have major downstream effects on other lawyers and the legal profession writ large. If lawyers are under siege, who’s going to defend the rights of the most vulnerable among us? That’s the topic of today’s show. To talk about this rough patch that big law is going through, I’m joined by Scott Wilkens. You may remember him from when we were both very young during episode three when he joined me to talk about cell phone searches and surveillance at the border. Scott, it’s a pleasure to have you on the show once again.
Scott Wilkens:
Thanks for having me. It’s great to be back.
Cristian Farias:
Scott, you were once a partner at Jenner & Block, one of the law firms Trump has targeted via executive order. But before we talk about that, tell me about the kind of work you did there and for how long?
Scott Wilkens:
I worked at Jenner for more than 15 years. I started there as a summer associate and really worked my way up to partner. I was a partner for maybe nine or 10 years. And what attracted me to Jenner in the first place at the time, the DC office of the firm had an incredible supreme court practice, both for paying clients and for pro bono causes. Two major cases were decided very early in my time there, the Lawrence versus Texas case, which I had briefly worked on as a summer associate and a major death penalty case called Wiggins.
But that entire time that I was at Jenner, in addition to working for paying clients, I worked on pro bono issues, largely in the area of LGBTQ rights, whether it was the Lawrence case or marriage issues. But then in the later five years of my time at Jenner, I worked a lot on transgender issues including a challenge to the first so-called bathroom bill in North Carolina, HB2.
Cristian Farias:
Yeah, I remember that.
Scott Wilkens:
I represented along with the ACLU and Lambda Legal, transgender plaintiffs there, and then representing the major medical groups in amicus briefs before courts at various stages to help judges understand the medical issues, the health issues that face transgender individuals and that help to underscore why the legal rights, the civil rights of transgender individuals is so important to their physical and mental health.
Cristian Farias:
Now, Trump’s executive order targeting Jenner & Block was quite clear by its plain text, but could you share with me and the audience why this law firm was targeted by the administration?
Scott Wilkens:
I think there are a number of reasons, some of which were very, as you mentioned, explicit in the executive order. Probably the biggest one being Andrew Weissman, who I got to know at the firm. Andrew worked on the Meuller probe and then also he had this well-known podcast tracking the various criminal and other cases against Trump. So I think he certainly persona non grata with President Trump, and that was a major reason. But also, Jenner has had a long association with the Democratic Party. The firm’s election law practice has for a long time represented the Democratic Party. So there are a lot of reasons why Jenner was targeted, and I think that from the moment that the first law firms were targeted by the administration, I think Jenner knew very well that it was on the list.
Cristian Farias:
Naturally, when you said on the list, that means that it wasn’t the only firm that was targeted. A list of firms were targeted by the administration. Can you name some of those firms and what would you say these firms have in common?
Scott Wilkens:
The firms that received executive orders, there are four of them that have challenged those orders, Perkins Coie, Jenner & Block, Wilmer Hale and Susman Godfrey. And what they have in common, and I think you can see this in the very text of the executive orders, is that they have represented clients or have taken views or have members that the Trump administration and President Trump in particular disagrees with, disfavors, dislikes.
And so all of these firms are receiving retribution, retaliation from the administration. I think it’s fair to say that all of these firms, although they are large, they have clients of many different kinds. They have partners and lawyers of many different sort of political stripes and persuasions. They are viewed as left leaning in some way, and that they have represented clients that are left leaning, that they have pro bono interests and representations that are left leaning. And so this is really an attack on that part of civil society.
Cristian Farias:
What are some of the things that these orders target with respect to the work that these firms do?
Scott Wilkens:
And here you see-
Cristian Farias:
... to the work that these firms do.
Scott Wilkens:
And here you see the power of the government and why it’s sent so many firms scurrying and has created such fear. These orders really do prevent these firms from doing many parts of their work. So for example, the orders have the effect of canceling the security clearances of lawyers that work at these firms. These clearances are important for many different kinds of work, including, for example, work for defense contractors, for other kinds of private companies that work on classified information with the government. You also have, as part of the orders preventing members of these law firms from even entering any federal building.
That is a massive penalty to levy because so much work occurs with the government and that includes of course, work before the courts and being kept out of federal buildings that house the courts is just perhaps the clearest example of how these orders harm and damage these law firms work, but they do so in many other ways. You also have, and this is the last thing I’ll mention, this campaign against diversity, equity, and inclusion. And of course that’s a very vague term, but you have these orders provide for EEOC oversight and investigation of the firms in that respect. And so you have essentially the federal government getting involved in many aspects of these firms work and punishing the firms if they don’t do what the government wants them to do.
Cristian Farias:
Why is this attack on law firms a First Amendment problem?
Scott Wilkens:
Law firms have very important free speech rights, as do their clients. From the very beginning of this country, the important role of an independent bar has been central. You had John Adams represent some British soldiers and that was extremely unpopular. He talked about that. I think he reportedly lost about half of his clients for doing that, but he did it in part because of the importance of clients having zealous representation and the importance of an independent bar that’s been with us from the very beginning. And these EOs are a direct threat to an independent bar and the law firms, who they represent, the causes that they represent in terms of their pro bono work, that all is protected.
Jenner’s association with Andrew Weissmann is protected from government retaliation. The idea that Andrew Weissmann’s speech even after he left Jenner, is a reason to target the firm is a First Amendment violation, but also it’s a threat to the judicial system. These executive orders against the law firms, it is no exaggeration to say that they are a threat to a cornerstone of American democracy. It is critically important that the best lawyers in the country, the best law firms in the country, be able to bring challenges to what the US government is doing. That’s part of the fabric of our democracy.
Cristian Farias:
And by removing the law firms from representing these clients, you’re violating those clients’ right to petition their government, which is also a part of the First Amendment.
Scott Wilkens:
Yes, and it’s interesting, if you look at these complaints by Jenner and the other firms, I mean literally almost every possible First Amendment, free speech, Freedom of Association claim is there because these orders violate the First Amendment in so many ways. I think it’s important to note here that because of what these executive orders say on their face, that they seek retribution, retaliation against these firms for what President Trump sees them as standing for, there couldn’t be a more clear violation of the First Amendment. And so you have to wonder, and this is why this is so dangerous and concerning that an administration would issue executive orders that it knows to a certainty are illegal and the administration did it anyway because it does have a coercive and damaging impact.
Cristian Farias:
Without exception because the law is so clear and because the violations are so brazen, all the law firms that have fought back have won resoundingly in court. They’ve been winning summary judgment rulings in their favor. Can you just maybe hit on a few points of what the judge in the Jenner case set about this executive order?
Scott Wilkens:
The judges in these cases have really resoundingly declared the First Amendment violations at issue here. And they have resoundingly criticized the administration for these attacks on a cornerstone of our democracy, which is an independent bar, and also the ability of clients to find and choose the representation that they want. And so you have very strongly worded judicial opinions because of course, this is an area that the judges know a lot about. They have lawyers appear before them every day. They understand the importance of the best legal representation. They know the importance of these firms. These firms are repeat players before them so they understand the institutional value. And you see that very clearly in these decisions.
Cristian Farias:
Now with all these fighters that are fighting these orders, we also have the losers and those who are caving. And there’s been a number of law firms that preemptively surrendered to these executive orders and they sign these preemptive “settlements.” And I say quote-unquote because they’re not a real settlement in the sense that they have some kind of judicial oversight where a judge signs off on it. It’s totally done at the behest of the Trump administration. And I’m curious what you make of these settlements, but also more specifically, a lot of these settlements, these law firms committed to donate millions of dollars worth of legal representation to causes that the Trump administration supports.
And do we have a sense yet whether these firms have carried through with any of this and if they are in fact they’re not providing legal advice that toes the line, so to speak, to the demands of the administration?
Scott Wilkens:
From my count, I think there are nine firms that have settled with the administration, at least where that’s public. It’s possible there are other settlements behind the scenes, but the first one, which got a lot of press was Paul Weiss, where the chairman actually went to the Oval Office and sat down with the president there to negotiate a deal. I’m very disdainful of these settlements. I think they were all a big mistake. I think that you’ve seen a lot of criticism from lawyers across the spectrum, also from legal writers, commentators, law professors. It’s just very troubling. The settlements are, I think, with the exception of Paul Weiss at least they seem to be unwritten, so we don’t know a lot about them.
But the administration and the president have trumpeted the money that supposedly these firms are going to donate to pro bono causes that the president agrees with. But we actually don’t know if much or any of that has been actually donated by any of these firms. It’s interesting though. I think I saw Stephen Miller was quoted as saying that the administration was up to $600 million in donations and it was going to get over a billion. And the president has bragged about all the money that these firms have been showering on the administration with respect to donated pro bono hours. But it really is hard to see what the administration is getting.
And then there’s the added point, which is also true of universities that are tempted to settle with the government, which is that is a settlement really ever final? Can’t the government just come back for more? And I think these law firms that have settled should be concerned about that, as should other law firms that may be considering settlement. And I hope there aren’t many more of those.
Cristian Farias:
A lot of these law firms that are targeted are massive. They make tons of money, and they have the power and the resources and the legal expertise to fight overreach by the government. Why should we care that they’ve been made targets?
Scott Wilkens:
The law firms that have been targeted and many other larger firms, but also many medium and small firms across the country, play a critical role in our democratic system. They represent clients before courts as part of an independent bar. And that includes not just cases against the government, the federal government, but many other cases against state governments, local governments, and of course against private entities that are very important in protecting the rights of individuals. And without these firms being able to do that, you have a major gap in our democratic system. You can’t hold the federal government, state governments, and other powerful entities to account.
And so they’re able to do what they wish. And so that’s why these executive orders are such a threat to American democracy.
Cristian Farias:
Scott Wilkins, senior counsel of the Knight First Amendment Institute at Columbia University, it has been a pleasure speaking with you again.
Scott Wilkens:
Thank you.
Cristian Farias:
With me today to talk further about the president’s executive orders targeting law firms is Bob Bauer. He’s a former White House counsel to then-President Barack Obama, and he has also served as Obama’s general counsel during both his presidential campaigns in 2008 and 2012. He is a writer of books as well as articles in many publications. And one of his current projects is Executive Functions, a substack that I really enjoy and have cited in my own work. Bob, it’s a pleasure to have you on the show.
Bob Bauer:
Thank you. I’m glad to be here.
Cristian Farias:
Now, before we talk about Trump’s executive orders against law firms, I want to give you a hypothetical. Imagine yourself sitting in the Oval Office back in 2010 when President Obama was celebrating the passage of the Affordable Care Act, but then the law got hit in court with lawsuits and he is not happy about this, and he decides to retaliate against the law firms for trying to undermine one of his signature legislative achievements. What would your advice be to the president at that moment? And by the way, you are not his lawyer. You are a lawyer for the office of the presidency.
Bob Bauer:
Yes. I don’t want to sound self-serving. I was the White House counsel and I was also his campaign counsel and have served his personal counsel. So it may seem that I’m going to give a-
Bob Bauer:
...his personal counsel. So it may seem that I’m going to give a righteous answer that is primarily a reflection of my long service to him, but the question would never have come up. I don’t think until this recent administration ever occurred to anybody that an administration would go about implementing a program of retaliation against law firms. I think it is very clear that in the last year, the actions that the president’s taken by executive order have taken everybody by surprise. No one anticipated it. And so I don’t think it would’ve ever come up. I can’t imagine a circumstance in which somebody would have suggested to President Obama or that he would’ve entertained for a minute retaliation against law firms that were representing clients in litigation against the government.
Cristian Farias:
Then before we talk about those executive orders proper and how unusual and bizarre they are, where is the White House Counsel and where’s the Office of Legal Counsel at the Justice Department whose main job is to provide legal advice to not just the president, but all the agencies within the executive branch?
Bob Bauer:
The current White House Counsel is an office that presidents have filled and have assigned them various functions. Those functions remain fairly stable over the last several administrations, but it is an office that didn’t exist essentially until the middle of the 20th century. The first White House Counsel was appointed by Franklin Roosevelt and had primarily policy and speechmaking responsibility, but then it became a small law firm and sometimes even a little bit of larger than a small law firm. And its goal is to provide day-to-day advice to the president on the issues that he cares to refer to it. And that typically includes the advice on nominations, advice on national security legal issues, advice on executive authority issues, advice on White House compliance with the law issues. And White House Counsel is not confirmed by the Senate. He’s a senior staff appointee and within the Department of Justice is an office of legal counsel that upon delegated authority from the Attorney General is supposed to be providing strong, distinguished, well-reasoned legal advice on issues that the president needs to have addressed.
And one of the concerns over time has been whether or not the authority of the Office of Legal Counsel and of the Department of Justice would be diminished. And the role of the White House Counsel as sort of a personal lawyer to the president right there in the White House would be elevated at some cost to the rule of law. President Trump has rendered that concern largely irrelevant by staffing the Department of Justice with former personal lawyers of his. And so of all of the lawyers currently who have relationships to the president, White House Counsel, Attorney General, Deputy Attorney General, they all have personal connections to the president from past service in his legal matters and the White House Counsel as well. So that divide between the more personal and the less personal has really been crossed completely in this administration.
Cristian Farias:
Yeah. Do you think that personal connection may be the reason why, like I said, the White House Counsel should be the one protecting the presidency from legal risk and here these orders are so lawless that you would think someone in there would say, “No, sir, you cannot do this”?
Bob Bauer:
We don’t know if the White House Counsel is advising the president, and there are times when the president might be putting his foot down about what he wants and the White House Counsel is only able to trim the legal problem down a little bit, but not get rid of it altogether. And we will not know that unless later in oral histories or in some other way, we discover what actually transpired in their conversations. But there is really very little evidence of a heavy hand, particularly in the executive orders that we’re talking about on these legal documents and active legal hand. These executive orders are so extraordinary in their lawlessness and their rhetoric is so unlawyerly, some parts of these executive orders appear to have been dictated by Trump himself. They sound like his tweets on Truth Social, and I know that I can’t imagine any lawyer who would be comfortable approving an executive order that read the way some of these do.
Cristian Farias:
When the first executive order targeted a law firm, Perkins Coie was published, my jaw personally dropped. My initial gut reaction was this isn’t remotely legal. And I take it from your answer, that was also your gut reaction.
Bob Bauer:
That’s correct. And let me mention one thing. You rightly cite the Perkins Coie executive order as really the first major shot across the bow that ultimately ended up in court. There was one previously that was issued against Covington & Burling, and that executive order was more limited in the attack, if you will, on the law firm. And it never went to litigation. It was focused on revoking security clearances for lawyers in the firm who had worked in staff, who had worked for Jack Smith, the special counsel who had prosecuted Donald Trump in the classified document haste. And it also attacked the contractual relationships that Covington & Burling may have had with the government. The executive orders directed against law firms that have become the most notorious, you’re quite right, began with the much more expansive and aggressive executive order that was issued against Perkins Coie.
Cristian Farias:
As a former partner at Perkins Coie, can you tell me about the work that you did there? What sets it apart from other Washington firms and why Trump may have targeted it?
Bob Bauer:
Well, I don’t know why Trump got to it first, and he got to some other law firms later repeating some of the same accusations. But I was not, of course, at the law firm when this executive order was issued. I left the firm to pursue my academic and other interests in 2018 after having been there for many decades. One clear-cut provocation to the president was that the firm ran a practice that I brought to it when I joined the firm, and I’m going to date myself here in 1980.
Cristian Farias:
The year I was born.
Bob Bauer:
Don’t rub it in. Okay? No need to go there. And the firm practice that I brought to the firm and that I built over the years was called the Political Law Practice. And it was a practice that involved counseling clients and many of them were Democratic Party institutional clients and candidates and office holders on the legal requirements for conducting lawful political activity. And it wasn’t limited only to representing political parties and candidates. We represented and have represented over the years clients who have other objectives in the political process. They may be engaged in issue advocacy, they may be engaged in lobbying the government, and we represent them on the legal issues that they have to resolve in order for them to conduct those activities lawfully.
And as time went by as a firm, very much identified with a Democratic Party client base, we ended up across the table from across the courtroom from and competition or in conflict with Republican Party organizations and Republican candidates. And he was particularly bitter about the firm’s representation of Hillary Clinton in his 2016 first election campaign. And he singled out the firm’s activities in that election and on election litigation generally as one of the reasons for what was plainly an act of retaliation against the firm.
Cristian Farias:
One reaction that I had to these executive orders was that no self-respecting lawyer at the Justice Department would defend these things in court if challenged. And indeed, as I’ve been following the cases, no courier or line attorneys at the Justice Department have been appearing in these cases. Instead, there’s this one political appointee, his name is Richard Lawson, appearing in all the cases all by himself. What do you make of that?
Bob Bauer:
I’m not surprised. The first case involving Perkins Coie, the first in the series of cases, involved an appearance on behalf of the government by the chief of staff-
Cristian Farias:
Yep, chief of staff.
Bob Bauer:
If I’m correct, to the Attorney General.
Cristian Farias:
That’s right.
Bob Bauer:
Right. Chad Mizelle, I believe his name is. And that was pretty remarkable. And the argument that he presented to the court was really remarkable. It was not an argument that I could imagine career lawyers would’ve ever been comfortable making. So I think it speaks for itself. I think these are cases of such, they’re so indefensible fundamentally. Every single case so far litigated against a law firm has been lost by the administration, but not just lost by the administration, but lost hands down, hands down with the courts making it very, very clear there wasn’t a shred of a defense available to the government of these executive orders across a wide range of constitutional points. They are unlawful. And that appears in opinion, after opinion, after opinion. And yet notwithstanding all of that, and a little bit to my surprise, knowing they will continue to lose, the administration has begun appealing them.
Cristian Farias:
Now, I want you to help me understand something. A current partner at a big law firm that did not settle with Trump and that supported Perkins Coie in an amicus, he told me that they could see the evil genius in these executive orders targeting law firms. He meant that none of the firms saw it coming and that many of them were truly ill-equipped to go after the hand that feeds them. In other words, these firms and their clients are so interdependent on the federal government for so many things that the natural reaction when so much of their business is at stake was to surrender. The rule of law was not a consideration. And what do you make of that assessment?
Bob Bauer:
Yeah, I have no doubt at all that the firms were surprised, and not at all sure initially precisely what the quickest route to relief would be. But very quickly we found something up about big law, if you will, the administration had targeted big law.
And the vulnerability in big law was the volume of financial activity that they engage in, the profitability of those practices. You heard from Paul Weiss, which was first the target of an executive order and then settled the case that it was faced in thought with an existential crisis when that executive order hit that it couldn’t survive as a firm if it didn’t ultimately try to remove the burdens of the executive order by settling the case. And that struck me as very odd because there’s no question the law firm would’ve survived.
What I think it meant, and this is the vulnerability of these firms in how they think about themselves, is that it couldn’t survive as a 2.6 or $7 billion firm. It would have, that is today, per year. It would have certainly lost some clients and opportunities from some business, from clients that might’ve otherwise hired the firm, but would be concerned about retaliation. And so it would’ve conceivably definitely been adversely affected, but it would’ve survived as a firm just on a more modest scale. And if the firm, whether consciously or not, if the administration was poking at a major vulnerability, it was poking at the vulnerability...
Bob Bauer:
... and a major vulnerability. It was poking at the vulnerability of firms that have grown so dependent on enormous revenues and the expectation of their partners that they will keep those revenues flowing. And as you know, these executive orders threatened them both directly and also in raising concerns among clients about whether they wanted to be represented before the administration, when the president plainly didn’t like their lawyers.
Cristian Farias:
That kind of explains when Perkins Coie and other firms were trying to gather amicus support from other firms, some firms signed up right away. But for the larger ones, for some of them it was very difficult. Big law is not prone to collective action and working collaboratively. I’m curious if you can reflect that a little bit.
Bob Bauer:
I may be off by a number or two. I don’t think so, but the amicus brief that was filed in the Perkins case was very, very powerfully developed. But only 8 firms out of the top 100 firms by revenue signed on, and not one of the 20th largest firms signed on. That’s at least my understanding. I think this is roughly correct. And then a brief that was filed in another case, the one that involved the firm of Susman Godfrey, showed similar results where the amicus brief was unable to sort of reflect a wide range of firms, including none in the top 25.
And that isn’t to say that these firms didn’t struggle with these decisions. Their executive committees didn’t worry, or for that matter, didn’t have to contend with critical remarks from within their own ranks about the extent to which they were shying away from confrontation with the administration. But at the end of the day, the administration could take from this experience the conviction that what they were doing, this intimidation program was working because look at the ones who were dodging out of the way of any visible association with the firms that were suing.
So yes, there’s been a chilling effect. The American Bar Association has filed a lawsuit against the administration and what is really striking about it is in trying to demonstrate the chilling effect that this has had on the law firm profession, the Bar Association had to rely on anonymized accounts from partners at major firms that were willing to tell the story but not name themselves or name the firm in the pleading. Really quite remarkable. They were willing to give testimony but only under cover of darkness.
Cristian Farias:
Yeah, that-
Bob Bauer:
That’s really quite striking.
Cristian Farias:
It is quite striking in that lawsuit, the ABA lawsuit. I believe it calls this campaign the “law firm intimidation policy.” ABA is almost picking up the mantle for all the law firms and they’re trying to almost once and for all get at the root of the illegality of these orders so that they don’t happen ever again.
Bob Bauer:
They’re definitely trying to provide support for firms that otherwise are not prepared to step out on their own, but are clearly sympathetic with the objectives here. If they’re not named, they can’t be the subjects of retaliation, but they can support the lawsuit and support the ABA’s filing of the lawsuit, and so they hope to benefit from it.
But it’s striking the lengths to which firms have to go to dodge the consequences of these executive orders when they’re so extraordinarily unlawful under the First Amendment, under the Fifth Amendment, under the Sixth Amendment. I’m sure the lawyers who reviewed them at the Department of Justice know fully well, or in the White House counsels fully well that they’re unlawful, and yet the legal profession has had to dance very carefully around this issue, even though when they entered this firms had settled. Entered into settlements after courts had already clearly pronounced on the unconstitutionality of these executive orders.
Cristian Farias:
As we have discussed, federal judges have been unanimous in ruling for the firms that have challenged these executive orders, and obviously these rulings are now in appeal. But do you think the Supreme Court will see things the same way if these cases do make it to their docket?
Bob Bauer:
I would be flabbergasted if these orders survived. I mean, I just don’t believe they will. I don’t see any way that the administration successfully litigates these orders.
Cristian Farias:
Yeah.
Bob Bauer:
The executive orders are going to crash and burn. I don’t think they will be sustained. These law firm executive orders don’t fall within any legitimate concern that the court would have with unitary executive doctrine, executive authority doctrine. I just don’t think they do, and so I don’t think it will survive. And in fact, I think there are other reasons why this court, even this court, if you want to put it that way, however favorable you think it has been to the administration so far in certain respects. I think there are reasons why it would be actively hostile to the attack on the legal profession.
Cristian Farias:
That’s the hope of many when looking to what will happen to these orders. Now, as a former White House Counsel and Perkins Coie partner, can you reflect on the First Amendment’s role in these cases?
Bob Bauer:
Fundamentally, these cases are about the government using its awesome power to punish those who disagree with it, to extinguish the bases for opposition. There is a direct line that connects the attacks on the law firm with the attacks on the universities with the attacks on the press, including the filing of defamation suits.
Cristian Farias:
Totally.
Bob Bauer:
There’s an ongoing attempt by the government to exercise power in this administration to stifle unconstitutionally, in plain violation of the First Amendment, and that’s not the only constitutional violation at issue here. Of course, the law firm cases involve right to counsel, constitutional issues as well, due process issues as well. But that’s what’s fundamentally an issue here is whether the President of the United States can lead a government that is dedicated to unlawful actions to extinguish, punish dissent, or to give people second thoughts, as in the law firm cases about whether to express dissent.
Cristian Farias:
Absolutely. Today is Paul Weiss or Susman Godfrey, tomorrow it could be a little law firm or you and me. So we should all be concerned about these executive orders. That was Bob Bauer. He is a former White House Counsel for President Barack Obama and also a former partner at Perkins Coie, and now he is a scholar and he thinks deeply about these issues. Bob, thank you so much for coming on the show.
Bob Bauer:
It was a pleasure. Thank you.
Cristian Farias:
That’s it for Episode 12. Can you believe it? We’re almost at the end. Next week for our final episode of the Bully’s Pulpit, we have a super special show. And it’ll be a little different to wrap things up. Am I allowed to share who our main guests will be? I don’t think my producer will let me, so you’re going to have to tune in. See you next week.
The Bully’s Pulpit is a production of The Knight First Amendment Institute at Columbia University. I’m your host, Christian Farias. This episode was written by me and co-produced by Anne-Maria Watt and Candice White. Our associate producer for this episode is Kushal Dev. Fact-checking by Kushal Dev, Ellie Fivas and Ella Sohn. Our sound engineer is Patrick McNameeKing. Candace White is our executive producer.
Our music comes from Epidemic Sound. The art for our show was designed by Astrid de Silva. Thanks to Scott Wilkens and Bob Bauer who joined us for this episode. The Bully’s Pulpit is available on Apple, Spotify, and wherever you listen to podcasts. Please subscribe and leave a review. We’d love to know what you think. To learn more about the Knight Institute, visit our website, knightcolumbia.org. That’s Knight with a K, and follow us on social media.