“The first thing we do, let’s kill all the lawyers,” Dick the Butcher declares in Shakespeare’s Henry VI: Part 2.
That is precisely the sentiment at the heart of the Trump administration’s assault on basic constitutional principles. The attack is steamrolling ahead, buoyed by the Supreme Court’s grant of impunity for Trump’s serial illegality and the cowardice of Congressional Republicans, who twice acquitted him of the “high crimes and misdemeanors” that the world watched him commit in real time, including on January 6. While we have become accustomed to Trump’s law-breaking, the normalization of his outrageous malfeasance has fed his assault on the very system that undergirds U.S. democracy. His administration has threatened to disobey court orders (and arguably already has). Officials have called for the impeachment of judges who uphold constitutional restraints on his unconstitutional actions, while DOGE head Elon Musk buys votes to install a friendly judge in Wisconsin. And lawyers from the Department of Justice have filed an unprecedented demand for the recusal of a respected federal judge overseeing a case against the administration.
Digging deeper into his vendetta-driven banishment of legal process, Trump is also targeting the legal profession itself. He has issued several executive orders targeting individual law firms and demanded investigations of lawyers who file “frivolous” arguments against the administration—a standard based solely on Attorney General Pam Bondi’s judgment. All this adds up to an additional assault on bulwarks of our democracy and civil society.
Americans often think of lawyers as opportunists who profit from conflict, and not without reason. But lawyers also represent the most fundamental defense against tyrants who seek to undermine a system of justice and fairness and to hold the populace in ignorance. Trump understands that for authoritarianism to prevail, the first thing to do is to cow those committed to upholding the Constitution and protecting vulnerable populations. And indeed, just as Trump is attacking his lawyer opponents, his own Justice Department lawyers are advancing frivolous, noxious arguments—in courts of law—to the effect that the president can unilaterally end the constitutional recognition of birthright citizenship and invoke emergency wartime powers under the Enemy Aliens Act to treat migrants as a foreign “invasion.”
In this context, so many lawyers on the front lines of resistance—including those of us in my organization, the Center for Constitutional Rights—were disheartened by the recent decision of a major law firm, Paul Weiss, not to fight a patently lawless executive order targeting them and to accept a number of dubious conditions on their legal practice, including devoting $40 million in pro bono services to causes selected by the Trump administration. (Reporting suggests the decision was driven in part by the corporate side of the legal practice, which feared a flight of clients even if they did sue.) Another Big Law behemoth, Skadden Arps, then followed suit in acceding to administration demands—this time, pledging a staggering $100 million in pro bono work.
The submissiveness of these powerful firms is particularly disappointing because another firm, Perkins Coie, successfully challenged a similar executive order and because Paul Weiss had a deservedly storied reputation as a leading pro bono advocate in fights for justice, including during the first Trump administration. (I have worked with many talented and committed Paul Weiss lawyers on critical challenges to the first Trump administration’s lawlessness and can imagine the ethical pain they are enduring from their leadership’s decision.) Fortunately, since then, two other major law firms, WilmerHale and Jenner & Block, sued to block similar Trump orders—bravely standing up, as lawyers must do, for the ethical mandates of the legal profession.
In a recent essay in The Atlantic, legal scholar Aziz Huq reminds us of the concept of a dual state, developed in an important book by that name by Jewish lawyer and political scientist Ernst Fraenkel, who defended Jews targeted by Nazi Germany before fleeing in 1938. In the book, subtitled A Contribution to the Theory of Dictatorship, Fraenkel describes how laws in the Third Reich served a dual purpose. There were the racist dictates of the Nuremberg laws, which licensed discrimination against Jews and the targeting of political opponents, and the legally sanctioned horrors of the Holocaust. But alongside these, there was also a state of legal normalcy that kept the machinery of a capitalist state pumping. “The trick was to find a way to keep the law going for Christian Germans who supported or at least tolerated the Nazis,” Huq writes, so that “capitalism could jog nicely alongside the brutal suppression of democracy and even genocide.”
So, in this country, is it possible for the wheels of a massive capitalist economy to proceed apace in boardrooms and courtrooms alike, while Trump sets his repressive sights on opponents and scapegoats vulnerable populations in spectacles designed to appease radical pro-Israel groups and white Christian nationalists. Mindful of the stakes or not, lawyers are exercising a choice: one can keep chasing corporate profits—seeing law merely as a narrow mercantilist lubricant—or, as other firms and legal organizations have done, one can defend the normative dimension of law, which seeks to protect the legitimacy of institutions and legal processes so they do not further slide into autocratic cudgel. (It was in this regard—“the imposing of effective inhibitions upon power and the defense of the citizen from power’s all-intrusive claims”—that historian E.P. Thompson referred to the rule of law as “an unqualified human good.”) In both a professional and political sense, this is an existential choice.
I am not naively suggesting that resistance is cost-free; standing up for principles at moments like this has obvious risks. But conciliation only fuels Trump’s momentum and his predatory instincts to exact more retribution—just as ABC News’s choice to pay Trump $15 million to settle his lawsuit against the organization only invites further attacks on the press, and Columbia’s capitulation to his unprecedented intervention in its internal affairs bodes ill for the rest of America’s colleges and universities. Since autocrats depend on isolating and marginalizing individuals from the herd, acting collectively is the best defense. The decision to settle, rather than to fight, gives license to other Big Law firms to sit out this existential fight for civil society. It normalizes the possibility of a dual state and leaves the fight for a normative conception of lawyering to vulnerable organizations on the front lines of this struggle for democracy and justice.
The truth is that civil society organizations—which focus on civil rights, civil liberties, immigrants’ rights, racial justice, gender justice, LGBTQIA+ justice, and electoral justice—are tired, overworked, and underpaid. Given the focus of their work and unlike profitable law firms, they are existentially threatened by Trump’s campaign to crush all legal opposition. If Big Law—with all its power, resources, and expertise—abandons our collective efforts, the country’s constitutional decline will accelerate, threatening the protective barrier that stands between the most vulnerable populations in this country and the awesome power of the government seeking to punish or erase them from our midst.
It doesn’t have to be this way. We should recall the role lawyers played in fighting the George W. Bush administration and its assault on law during its “War on Terror.” In the beginning, the Center for Constitutional Rights stood largely alone in fighting against disappearances of Muslims and in challenging the administration’s indefinite incommunicado detention of Muslims in Guantánamo. After several lonely years in this fight, momentum built around the perceived threats to law the Bush administration practices held, and an army of lawyers from all sectors of society—including from Big Law and the now-targeted firms of Perkins Coie, Covington & Burling, and Paul Weiss—flooded the courts with powerful challenges to executive overreach. The Center eventually recruited many hundreds of private lawyers, from nearly every major firm across the country, to provide representation to all 779 men detained in Guantánamo—a group that was dubbed the Guantánamo Bar Association.
I regard this as one of the greatest mass defense efforts in U.S. history. The forceful display of collective action enabled the litigation to withstand vigorous attacks against it. In 2007 a Defense Department official, Cully Stimson, identified about a dozen major law firms supposedly “representing terrorists,” urging their CEO clients to drop them as counsel. The response of the organized bar and academia was swift and damning in defense of the vital principle at the heart of our profession: representing the vulnerable vindicates, rather than diminishes, our constitutional project. Stimson apologized, and within weeks he was out of a job. Acting together, the Guantánamo Bar Association triumphed over the government’s threats.
Trump’s current assault on the our constitutional values calls for a similar united front. The threat now is far more sinister, coordinated, and resourced. The profession must be brave enough to embrace the first principles of its high calling and be resilient in coordinated, collective, and steady defense of all that is at stake. Civil society needs Big Law more than ever, just as Big Law—and the country—needs civil society more than ever. Standing together is the only way our republic will survive this assault.
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