The Rule of Law and the White House Attack on Lawyers
The rule of law, and the lawyer’s key role in maintaining it, is discussed by describing the conflict occurring now in the United States between the White House and the U.S. bar.
Why Should this Article be of Interest to Cuban Citizens?
Cuba is in desperate need of economic development and that is only going to occur in Cuba if there is “rule of law.” Among other reasons, rule of law is critical for attracting foreign investment and for encouraging a country’s citizens to innovate and develop new technologies. Rule of law allows new businesses to emerge to meet local needs and it permits citizens to adapt businesses from other countries to operate in local conditions, as well as allowing markets and trade to develop and grow.
In any transaction, whether investment or trade, both sides need to trust the other. This potential lack of trust in dealing with an unknown partner has been referred to as the “double trust dilemma”.[i] However, under a system of rule of law, a binding contract that will be interpreted by an independent judiciary in a predictable way provides the potential investor and the investment recipient the confidence needed to enter into the transaction. The same is true for parties to a potential trade. Without the rule of law, the parties to these potentially beneficial relationships will be limited to transacting business in situations where other types of ties exist, such as a family or social bonds.
This article briefly discusses rule of law, and the lawyer’s key role in maintaining it, for the economic growth of the nation and the welfare of its people. It does so by describing the conflict occurring now in the United States between the White House and the U.S. bar.
What Is Rule of Law?
Rule of law is a principle under which all persons and institutions in the country are accountable under laws that are:
- Publicly promulgated (no secret regulations or arrangements);
- Equally enforced on all without favor and regardless of status (it should not matter who you know to determine the outcome); and
- Independently adjudicated by independent courts that do not take orders from the executive or legislative branches.
Lawyers and courts play essential roles in maintaining the rule of law, as discussed in more detail below.
Why Is President Trump at Odds with the U.S Bar?
The president has adopted punitive executive degrees against some of the country’s most prominent law firms. The decrees purport to:
- Terminate all contractual arrangements between the U.S. government and those firms;
- Require businesses that contract with the U.S. government to disclose any relationship with those firms and that government agencies review such contracts;
- Deny access to lawyers in those firms to federal buildings, meaning that lawyers from those firms may not be able to enter federal courthouses to handle some client matters or enter other government buildings; and
- Cancel security clearances for all of the lawyers in those firms.
These decrees, if allowed to take effect, could potentially destroy the law firms that have been targeted, as a significant part of the practice of large law firms involves obtaining approvals from the federal government for their clients in a variety of commercial activities and business transactions and engaging in government contracting work. Moreover, most of the complex commercial litigation in the U.S. takes place in federal courthouses to which the executive orders attempt to prevent, or at the very least limit access to those courts on matters not favored by the president.
Security clearances are provided by the government after a vetting process, but the president has the final right to provide and deny them. The cancellation of all security clearances for lawyers in a firm prevents them from representing clients in legal matters where government secrets are involved, such as clients from the defense industry, as well as representing clients working on certain projects for the U.S. government.
Why Has the President Done This?
Lawyers who have participated in prosecutions of the many legal matters previously brought against the president, both criminal and civil, have worked at those firms before and after they participated in litigation against him[iI]. The President says that those lawyers participated in entirely unjustified investigations of him. One firm targeted by the president represented the company that provided voting machines in the 2020 presidential election. The law firm obtained for the company a very large financial judgement against Fox News for defaming it and questioning the accuracy of its voting machines.
In addition, all of those firms have significant pro bono legal programs to defend the rights of those who do not have access to counsel or take on controversial cases, most of which the president believes are not worthwhile and undermine the interests of the U.S. Moreover, according to the president, the firms have, among other things, blocked government efforts “to prevent illegal aliens from committing horrific crimes and trafficking deadly drugs within our borders.”[iii]
How Have the Law Firms Responded?
To date, four of the firms targeted by the president have fought back and have sued him and the government to block the executive decrees.[iv] The federal courts in which the challenges were filed have granted these firms temporary restraining orders, enjoining the president from taking any action against the law firms or their clients at least until the litigations have proceeded further.
Separately, the bar associations of New York, Boston, Philadelphia, Chicago, Denver, Los Angeles, San Diego, and San Francisco, among others; over 500 law firms nationwide; and over 350 former judges have filed amicus briefs in support of the four law firms challenging the presidential decrees[v].
On the other hand, some of the wealthiest firms – those with the largest earnings – have attempted to forestall any presidential action by entering into agreements with the president to change some of their practices, including policies that favor diversity in the workforce. Moreover, they have agreed to provide, as a group, hundreds of millions of dollars in pro bono legal work to causes the president wishes for them to take on.[vi]
What Are the Arguments of the Plaintiff Law Firms and the Amici?
1. The executive actions threaten the independence of the legal bar – turning it into an instrument of the executive branch – rather than permitting lawyers to continue to serve as officers of the court, as conceived under the U.S. legal system.
Fear of presidential action hampers not just the lawyers in the targeted law firms, but lawyers in general who may be afraid to advocate zealously for their clients, as we are required to do under the ethical rules of our profession. This fear will cast a pall over the profession, which may now refuse to take on clients, or, for clients they do take on, make arguments that the president may not like. The fear of a presidential executive order will cause lawyers to mute facts of soft-pedal arguments that are not popular with the president, undercutting their effective and honest representation of clients.
One of the professional obligations of lawyers is to work to improve the administration of justice and provide access by all to the legal system. This responsibility is carried out by those lawyers in private practice in a variety of ways. Law firms have programs to represent pro bono those who do not otherwise have lawyers to represent them, which frequently involves representing unpopular clients or handling controversial issues. In addition, federal courts may assign to law firms with appropriate expertise the defense of criminals in cases involving important societal issues.
Another argument raised by the plaintiffs and the amici is that the executive orders could require lawyers to violate their professional obligation to preserve the sanctity (including confidentiality) of the attorney-client privilege, as the orders require that the firm and its clients make certain disclosures to the government. In fact, the executive orders require lawyers to put nebulously defined “national interests” ahead of their obligation to place their clients’ interests above all, and represent them within the bounds of the law.
2. An independent bar is necessary for a proper functioning of our courts, and the executive orders undermine the duties owed by the bar to the judiciary, potentially preventing our courts from rendering lawful decisions.
Our judiciary depends on the honesty and complete reporting of the facts and the law by the lawyers that appear before it, in order to render its decisions. In our legal system, our judges are not prosecutors who investigate facts independently, as occurs in a civil law system. Ours rely on the lawyers that appear before them to present all the facts honestly and tell them the whole truth, without omitting facts.
Our legal system presumes an adversarial process where each side presents its facts and analyzes those facts and argument as to whether the law should or should not apply. The truth is uncovered by the court through this process of argument and cross examination by the lawyers representing the parties. The judge and the jury reach conclusions based on testing the factual and legal arguments that emerge from this adversarial process.
An informed and independent bar is necessary to have an informed and independent judiciary to determine and fairly apply the law, and that in turn is needed for the proper functioning of our legal system. Executive interference in this system, either actively or passively, will distort the results of our legal system – which relies on the court independently resolving disputes based on the law and the facts and not by dictate or preferences by another branch of government.
Moreover, law firms play a crucial role in preserving adversarial justice by litigating to assert legal rights and prevent abuses of government power. As is portrayed in film and print media, lawyers challenge the application of laws or the failure to enforce laws by other branches of government, whether it involves, as examples, the contamination of a city’s water supply or the failure to protect the rights of citizens. All of this activity helps to maintain the rule of law.
While many of the cases challenging perceived government abuses are initiated by not-for-profit law firms, they cannot take on those matters alone and frequently partner with large law firms in bringing their legal challenges. Large commercial law firms have the financial ability to support the out-of-pocket costs of the nonprofit partners and to provide a wide variety of legal talent to address all aspects of complex cases.
An independent well informed judiciary is necessary to act as a check on the other branches of government (the executive and the legislative) under our system of checks and balances by the three branches of government. Checking the improper use of power of the other branches is another aspect of rule of law.
Conclusion
History has shown that most countries without rule of law face serious obstacles developing strong economies.[vii] The predictability and certainty needed for commercial activity is undermined when lawyers are unable to advocate freely for their clients and other branches of government interfere in the courts. How can an economic actor know how to plan and operate if interference and favoritism distort the expected outcome should one party to an agreement fail to comply, if property rights cannot be reliably enforced, or if the government disregards its previously established rules without going through proper constitutional, legislative or administrative processes?
Returning to the double trust dilemma discussed at the start, recall that it is addressed by a rule of law system, where courts fairly and independently protect property and contract rights. And they do so consistent with published laws and regulations, applied equally to all, and those laws are interpreted by independent courts. All of this generates the trust necessary for all parties to proceed with confidence within the country and in transactions with the country - so that the country's economy flourishes.
In sum, the United States has a long established history of rule of law. However, the president’s executive orders against the law firms, along with a number of his other acts, are undermining this tradition. The resulting uncertainty already appears to have reduced commercial activity and investment. That is a lesson for any country, including Cuba, seeking robust economic development.
[i] Cooter, Robert D. & Schafer, Hans-Bernd (2012), Solomon’s Knot: How Law Can End the Poverty of Nations, Princeton University Press.
[ii] A practice in the U.S. is for lawyers to take on special assignments for the government, including serving as special prosecutors for the U.S. justice department. In those cases, they withdraw from their law firms and often return to those same firms when their activity on behalf of the government has concluded.
[iii] See, for example, “Addressing Risks from Jenner & Block”, March 25, 2025.
[iv]To date, the law firms of Perkins Coie, Wilmer Hale, Jenner & Block and Susman Godfrey, LLP.
[vii] See Cooter and Schafer.