Why I Signed a Brief Backing Perkins Coie’s Challenge to Trump

As lawyers, we’re used to taking a side in a fight. And I’ve put my name on a lot of briefs, including briefs where I was representing the United States of America. But when it was my turn to take a side and sign an amicus brief to support law firms that I never worked for or hired, it felt different, more personal, and more urgent than any case I’d ever tried or managed in my 35-year career. No cause has ever seemed so just.

By way of background, I recently wrote that these divisive times we’re experiencing are increasingly requiring lawyers to take a side in the widening battle between the Trump administration and the legal profession. The battle has intensified since then–President Donald Trump started issuing executive orders targeting law firms that sued him during his first administration or that participated in investigations of his conduct.

But his attack on Big Law isn’t just about retribution—citing “unlawful” diversity, equity, and inclusion practices, he has broadened his attack to include a flurry of executive orders against several other top law firms.

Perkins Coie, WilmerHale, and Jenner & Block, among others, have filed lawsuits challenging Trump, and judges in each of those cases have blocked implementation of part of his order, finding them to be “likely unconstitutional.” Trump doubled down, issuing executive orders against more law firms.

The Justice Department predictably lined up behind him, criticizing the order from an “unelected” federal judge in the Jenner case and suggesting that attorneys in the department ignore it. As for the largest organization of lawyers in the country, the American Bar Association? The White House dismissed it as “snooty” and “leftist.” Meanwhile, the Justice Department has issued a directive forbidding its attorneys from participating in ABA events.

Trump knows that the most formidable barrier to his agenda is the legal profession and an independent judiciary. His goal is not only to neutralize Big Law, but also to turn it into an instrument to further his objectives.

And it’s working. Fearful of his ire, several big law firms have quickly entered into settlement agreements, agreeing to provide cumulatively nearly a billion dollars in pro bono work for the administration’s causes. In return, the administration has agreed to drop “probes” into the firms’ past DEI practices.

Trump now has more than a formidable legal war chest where the firms will do his bidding—he has their souls.

In the wake of these events, I was approached to sign an amicus brief in the Perkins Coie, WilmerHale, and Jenner & Block cases. The brief, signed by a total of 67 former and current in-house counsel, discusses how the executive orders targeting big law firms have an intimidating effect on business and a company’s right to counsel of choice. These orders infuse what should be a legal business decision with fear and political calculations and undermine our entire system of justice.

As a former general counsel, I can see that these executive orders are wrong. I suspect most of the legal profession, whether targeted yet or not, sees it just as clearly. And when you encounter wrong in your orbit, you have a simple choice. You can appease it, you can turn away and say nothing, or you can speak up. That’s it. Choose a side.

I felt compelled to speak up and sign the brief, as silence and appeasement are complicit with the wrongdoing itself. It’s one thing for retired general counsel to speak up, but quite another for so many still actively practicing law.

I applaud my colleagues who are active general counsel for joining, and for their companies who agreed to take on the risk and support this challenge. And I applaud the courage of lawyers in other private firms who have independently banded together to file their own amicus brief representing the interests of law firms who haven’t yet been targeted. You might be battling the government, but you won’t be battling your conscience.

If you’re a law firm, you may be faced with interesting choices in the coming weeks, as Trump’s broadside on big law firms gathers steam, and he works his way down the list. The firms that capitulate may feel that settling is the right thing to do financially or to attract future government business.

As each firm comes forward to kneel and settle, it becomes harder for those who remain. But those firms that fight here will be doing more than just standing up for their own right—they’ll be ensuring that there is a legal profession independent from the executive branch that isn’t afraid to stand up and challenge the government when appropriate. And that’s what our constitutional system needs now.

If you’re in-house, you may not be free to speak out directly. But you do have an interesting choice when deciding who to hire when defending yourself or raising challenges to governmental action.

Should you hire a law firm that might be “in favor” with the government? Does it buy you immunity or a better settlement offer? Does that firm’s favor come with a price, even a conflict of interest, that might cause them to think twice before zealously representing your position against the government to which they are beholden?

Or do you hire a firm that fights the Trump administration, knowing that you and the firm will get no favors in the litigation—and may face the specter of a government primed to seek sanctions for your taking a position that, in their eyes, is unreasonable?

That’s the real prisoner’s dilemma. And that’s why my name is on the brief.

Rob Chesnut consults on legal and ethical issues and was formerly general counsel and chief ethics officer at Airbnb. He spent more than a decade as a Justice Department prosecutor and he writes on in-house, corporate, and ethics issues.

Read More Good Counsel