In spring 2024, the Supreme Court issued a unanimous decision that found a government official could not use her position to punish a disfavored political organization by going after the third parties that did business with it.
Likewise, President Donald Trump’s efforts to not just punish law firms he does not like, but also the clients that do business with those firms, are flat out unconstitutional. But unless lawyers stand up to the president and clients stand by their lawyers, the damage to the legal system will be profound.
President Donald Trump’s efforts to not just punish law firms he does not like, but also the clients that do business with those firms, are flat out unconstitutional.
Clients and lawyers must band together against these blatantly illegal actions by the Trump administration and flip the script: They need not defend their own actions but, rather, force government attorneys who may seek to punish the clients of any “disfavored” law firms to justify such unconstitutional efforts, which will be impossible to do.
So far, the president has targeted five private law firms and the clients they represent, claiming that his administration will punish those clients who have the temerity to do business with those firms. Two of these firms, Paul Weiss and Skadden Arps, have capitulated to this pressure, expressing fears that the president’s attacks threaten their business model, and they will lose clients who might not want lawyers representing them who have such a bad relationship with the federal government.
This fear is certainly real, but if the president can scare clients away from the firms that might take positions against his administration, there will be fewer and fewer lawyers willing to take such stands. If that happens, our system of rights, protected by law, and not dispensed at the fiat of the executive, will crumble. But here’s the thing: such actions by the president are clearly unconstitutional.
Last year, in a case filed by the National Rifle Association, on facts eerily similar to those surrounding the president’s actions, the Supreme Court, in a unanimous opinion authored by Justice Sonia Sotomayor, found that the efforts of a state agency in New York to punish companies that did business with the NRA violated its free speech rights enshrined in the First Amendment.
While it is deeply troubling that some firms feel the need to appease the White House in the face of such unconstitutional retribution, it will take more than just a handful of firms to resist such bullying. And if such resistance does not materialize, the threats to the rule of law will only increase, and our legal system will not serve to protect everyone’s rights or facilitate the peaceful resolution of disputes.
It is in everyone’s best interest — even those clients who might fear retaliation from the Trump administration for retaining disfavored firms — to condemn the president’s efforts to attack members of the legal profession simply for playing their essential role in our legal system. These clients should stand by their lawyers and those lawyers must turn the tables on their opponents. They must force government lawyers who might take punitive action on behalf of the president to justify such unconstitutional behavior in court. Since government lawyers take an oath to the Constitution, they, too, have a duty to resist facilitating such punitive and unconstitutional actions.
Addressing U.S. attorneys in 1940 about the role of the prosecutor in a society that abided by the rule of law, then-Attorney General Robert Jackson — who would also serve as a prosecutor in the Nuremberg trials of Nazi leaders and was later a Supreme Court associate justice — explained: “While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst.”
The Trump administration has already found the fools and cowards willing to take improper and unethical action against its adversaries.
In the last light of the first Trump administration, Justice Department lawyers refused to help the president remain in power after losing the 2020 election. Recently, federal prosecutors resisted pressure to dismiss the case against New York City Mayor Eric Adams. As one of those lawyers, then-Assistant U.S. Attorney Hagan Scotten, explained: “Any assistant U.S. attorney would know that our laws and traditions do not allow using the prosecutorial power to influence other citizens, much less elected officials, in this way. If no lawyer within earshot of the President is willing to give him that advice, then I expect you will eventually find someone who is enough of a fool, or enough of a coward, to file your motion. But it was never going to be me.”
The Trump administration has already found the fools and cowards willing to take improper and unethical action against its adversaries. Remember, President Richard Nixon, too, cycled through several lawyers until he found someone willing to fire the special prosecutor investigating him, but the “Saturday Night Massacre” also helped lead to Nixon’s ultimate demise. The ability of lawyers and their clients to operate free of such animus is an essential element of our legal system and the rule of law itself. And everyone benefits by a functioning legal system: a financial institution under investigation, a worker cheated out of a fair wage or someone facing deportation. In a democracy that promises “Equal Justice Under Law,” a phrase chiseled above the entrance to the U.S. Supreme Court building, lawyers are critical to deliver on the promise of such equal justice, not for some, but for all. Attacks on lawyers — even elite ones — are designed to bring the entire legal system to heel. Turning to Robert Jackson once again, in West Virginia State Board of Education v. Barnette, writing for the Supreme Court, he set forth what should be our national True North when it comes to speech and action disfavored by government officials: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” The Trump administration’s attacks on law firms are designed to not just dictate orthodoxy, but also to bend the legal system to President Trump’s will. These seemingly petty actions, from high officials, are setting us down a path where the legal institutions designed to protect everyone will no longer serve to check abuses of power. Everyone within the legal system — its judges, lawyers, clients and average citizens — must resist such efforts and do so together.
Ray Brescia
Ray Brescia is a professor of law at Albany Law School and author of the book “The Private Is Political: Identity and Democracy in the Age of Surveillance Capitalism.” 
