A WAVE OF “friend of the court” briefs filed Thursday and Friday in federal court for the District of Columbia expressed support for a law firm targeted by President Donald Trump because of the firm’s prior representation of Democratic candidates, most notably Hillary Clinton.
Friend of the court or “amicus” briefs are court filings by individuals or groups who are not parties to a lawsuit but offer their views on the matter being litigated to aid the judge in reaching a disposition. Amicus filings are common in high stakes cases where the result is expected to have ramifications beyond the parties in front of the court.
The amicus filings expressed solidarity with Perkins Coie LLP, a large Seattle firm with two Bay Area offices that was the subject to an executive order issued March 6 by President Donald Trump directing federal agencies to take punitive actions against the firm, including canceling their federal contracts, on account of its prior representations.
Prominent among the amicus filings was a brief submitted by 363 law professors, led by professor Phillip Malone of Stanford Law School. The brief says it was filed to emphasize the threat presented by the president’s actions “to the independence and integrity of the legal profession, the rights of clients to seek redress in the courts, and, by extension, the rule of law.”
The Bay Area was well represented among signors, with 24 Stanford Law School faculty signing in addition to Malone. Seven members of the faculty of University of California Berkeley School of Law joined, including dean Erwin Chemerinsky, as did faculty members from the University of California College of Law San Francisco and University of California, Davis. Other signatories included professors at many of the country’s most prominent law schools, including Harvard University, Yale University, University of Pennsylvania and the University of Chicago.
Another Friday filing was on behalf of a group of 346 retired judges from federal and state courts around the country. Ninety of the signatories were from federal and state courts in California, including five former U.S. district judges and three former U.S. magistrate judges from the federal court for the Bay Area.
California Attorney General Rob Bonta joined in an amicus brief supporting Perkins filed by attorneys general from 20 states and the District of Columbia.
Amicus briefs are allowed in the discretion of the court and U.S. District Judge Beryl Howell, the judge presiding over the Perkins Coie lawsuit, has yet not ruled on whether he will allow the filings, though approval is expected.
A ‘grave threat’ to the rule of law
The most widely anticipated of the amicus filings was an amicus brief filed on behalf of 504 law firms from around the country. The filing was organized by the Munger Tolles & Olson law firm and signed by Donald Verrilli, a partner at Munger and a former U.S. solicitor general. Munger has offices in Los Angeles and San Francisco.
The brief was intended as a show of shared values among the legal profession and also to provide safety in numbers, allowing firms to stand up against the Trump administration without making themselves obvious targets.
The brief began with the statement, “In recent weeks, the President has issued not one but five executive orders imposing punitive sanctions on leading law firms in undisguised retaliation for representations that the firm, or its former partners, have undertaken, and more may be in the offing.”
It continued, “Those Orders pose a grave threat to our system of constitutional governance and to the rule of law itself” and asked the court to “ensure that this abuse of executive power ceases.”
Among the signors were prominent Bay Area plaintiffs’ firms — Altshuler Berzon LLP; Lieff Cabraser Heimann & Bernstein LLP; Cotchett, Pitre & McCarthy LLP and several large multi-discipline firms like Manatt, Phelps & Phillips LLP and Arnold & Porter who have significant offices in San Francisco.
One of the signors was no surprise. Keker, Van Nest & Peters LLP, a litigation boutique based in San Francisco, has been vocal in saying that lawyers should stand up against the Trump administration’s bullying, going so far as to pen a guest essay in the New York Times on March 30 under the boldface title “Our Law Firm Won’t Cave to Trump. Who Will Join Us?”
Some big names missing
But while the list of signatories to the law firm’s amicus brief was long, many of the nation’s largest and most well-known firms were not among them, a clear signal that the legal community — or at least the portion that includes big law firms — was deeply conflicted on whether it was appropriate to get into a fight with the Trump administration.
The dispute with Perkins is a proxy war in a larger conflict between the Trump administration and the elite law firms perceived by the president to have been hostile to him in the past. His executive order against Perkins said that the “dishonest and dangerous activity of (Perkins Coie) has affected this country for decades” and specifically called out its work for Hillary Clinton and donor George Soros.
The order directed the U.S. attorney general, the director of national intelligence, and the heads of federal agencies to suspend the firm’s lawyers’ security clearances and terminate U.S. government contracts with the firm. The order also directs that contracts between the government and clients of the Perkins firm should be terminated.
Perkins filed suit against the U.S. Department of Justice and several other federal agencies on March 11 in federal court in Washington, D.C., alleging that the order was unconstitutional on multiple grounds, including violating the First Amendment and the due process clause of the Fifth Amendment. Judge Howell entered an order against the federal agencies blocking them from enforcing the order pending a full hearing.
Two other firms — WilmerHale and Jenner & Block LLP — were also targeted by similar executive orders. They sued in the District of Columbia and each firm was successful in quickly obtaining a temporary restraining order. WilmerHale is the former home of Robert Mueller, the special counsel who investigated Trump for obstruction of justice in connection with Russian interference with the 2016 election. Jenner employed one of the senior lawyers on Mueller’s team.
Meanwhile Paul, Weiss, Rifkind, Wharton & Garrison LLP, also targeted by an executive order, entered a settlement with the government by agreeing to do $40 million in pro bono work aligned with the administration’s priorities. Skadden, Arps, Slate, Meagher & Flom LLP, one of the top revenue-producing firms in the world, settled before being targeted with an executive order, agreeing to do $100 million worth of pro bono work aligned with the president’s priorities.
Also preemptively settling was Milbank LLP, a firm that long ago included a partner named Elliot Richardson, who served as U.S. attorney general and famously resigned rather than fire the special prosecutor investigating Nixon during the Watergate scandal.
Associate lawyers lean on firms to take a stand
Adding to the headaches that the dispute has created for law firm leadership, associate lawyers at many of the nation’s most visible firms have organized to urge their leaders to stand up to Trump.
“Associate lawyers” loosely describes a category of mostly younger lawyers, who work at a law firms — often beginning right after law school or clerking for judges — who have not yet risen to the status of partner or equity holder in their firms.
After the Perkins executive order, a group of associate lawyers drafted an open letter to the leaders of their firms asking them to oppose the Trump administration’s retaliating against law firms for representing clients that the administration does not like. The associates asked other associate lawyers to join the open letter by “signing” the name of their firm and their “class” but not identifying themselves by name. (Associates at large firms are commonly grouped by their class, based on the year they joined the firm.) To protect the signors’ anonymity, the letter was not released until a hundred signors had been secured.
The letter was released in mid-March and since then, new signors have been added every day. As of Thursday evening, there were 1,821 signors from more than 150 law firms.
The associates letter asked their firms’ leaders to join the Munger brief, but associate signatures on the letter did not appear persuasive to leadership at many big firms. For example, 29 associates identified as being affiliated with Morrison Foerster, a large San Francisco firm, signed the letter, but the firm did not join the amicus brief.
A count showed 89 Skadden and 15 Milbank associates on the letter, though those firms reached settlements with the Trump administration.
One of the primary organizers of the associate’s letter, Rachel Cohen, a third-year finance lawyer in Skadden’s Chicago office, resigned from the firm when she could not get comfortable with the firm’s stance. Cohen has been active on TikTok and LinkedIn, urging law students to steer clear of firms that won’t stand up to Trump.
Next up in the litigation are hearings on a motion by the Department of Justice to dismiss Perkins’ lawsuit as without merit, and a hearing on Perkins’ request for an order permanently forbidding the government from implementing the executive order.
As of mid-afternoon Friday, no amicus briefs had been filed by lawyers, professors, or former judges supporting the executive orders.
Joe Dworetzky, the author of this story, has been a lawyer for 45 years. As a journalist, he no longer represents clients, but remains an active member of the bar.
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