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Donald Trump has widened his crackdown on Big Law, mandating a review of government contracts with companies that have represented his opponents and launching a wide-ranging investigation into diversity policies that have sent a chill through the legal industry.
The White House has issued two executive orders in the past fortnight. One targeted Covington & Burling, which represents Jack Smith, the special counsel who oversaw federal criminal cases against Trump; the other, on Thursday, was against Perkins Coie, which represented Democratic candidate Hillary Clinton in the 2016 presidential race.
Thursday’s order also directed US attorney-general Pam Bondi to investigate “racial discrimination” at “large law firms”, including reserving roles for “preferred races” — part of the industry’s drive for diversity in its workforce.
Trump was “sending a clear message that the Federal Government will no longer tolerate the abuse of power by partisan actors who exploit their positions for political gain”, the White House said last month in an accompanying statement.
The orders are the Trump administration’s latest attack against perceived opponents in the US legal system, following clampdowns that critics argue infringe on the country’s separation of powers and judicial independence.
The executive orders suspended lawyers’ security clearances and called for a review of all government contracts with the two law firms. Trump also directed agencies to “take appropriate steps to terminate any contract” for which Perkins was hired.
“These are extraordinary moves [that] I’m sure were intended to chill law firms in their choice of clients and in the positions they take for clients,” said Daniel Richman, professor at Columbia Law School.
“Part of this challenge to the rule of law is based on [the] either you’re my friend or not approach that transcends law ethics and any other constraints that normally bind governments”.
The latest measures could also hit the bottom line of law firms. For groups “blacklisted by name, this will inflict serious economic damage (blows to revenue, lost clients, forfeited matters)”, said Bruce MacEwen, president of New York law consultancy Adam Smith, Esq.
“The message it sends more broadly and lastingly is that Big Law firms represent politically prominent — and maybe any and all ‘controversial’ figures and causes — at their peril,” added MacEwen. “Gain business from one person, forfeit business from hundreds”.
The legal community has sharply criticised the orders. The American Bar Association said in a statement: “Clients have the right to have access to their lawyer without interference by the government. Lawyers must be free to represent clients and perform their ethical duty without fear of retribution”.
It added the association “cannot accept government actions that seek to tip the scales of justice”.
Barbara McQuade, professor at University of Michigan’s law school, said “punishing law firms for representing certain clients” is “likely illegal” and potentially violates the First Amendment, which “allows people to associate with whomever they choose”.
She added that stripping security clearances from Smith’s lawyers at Covington “denies him the right to counsel of his choice”, while limiting Perkins lawyers’ access to federal buildings would deny them “opportunities to engage in their livelihood”.
The White House alleged that Covington potentially played a role “in the weaponisation of the judicial process” and that Perkins’s work resulted in “a false ‘dossier’ designed to steal an election”.
Covington said the firm had agreed to work on Smith’s defence when it became apparent he would face a government investigation.
“Covington serves as defence counsel to Jack Smith in his personal, individual capacity,” the firm said. “We look forward to defending Mr Smith’s interests and appreciate the trust he has placed in us to do so.”
Despite the administration’s pressure on Big Law, Williams & Connolly, a renowned Washington law firm, chose to represent Perkins in what legal analysts say is a sign of resistance to the crackdown.
Perkins on Tuesday sued the government over what it said was an “unlawful” executive order that “violates core constitutional protections, including the rights to free speech and due process”.
Williams’s involvement “suggests that they’re not going into this to make nice,” Richman said. “Williams is deservedly known for its forceful litigation and I expect to see that here”.
In response to Perkins’s lawsuit, the White House said: “The Trump administration is working efficiently to eliminate waste, fraud, and abuse in the federal government. It is absurd that a billion-dollar law firm is suing to retain its access to government perks and handouts.”
Williams did not respond to a request for comment.
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