Why President Trump Targeting a Major Law Firm Matters for All Americans

Zeroing in on Covington & Burling law firm is an attempt at using what Alexander Hamilton might refer to as "Formidable Instruments of Tyranny"

On February 25, President Trump used his executive power to target a major American law firm, Covington & Burling. He signed an executive order directing “the Attorney General and heads of agencies to take such actions as are necessary to terminate any engagement of Covington & Burling LLP by any agency…” of the federal government.

That firm employs more than fourteen hundred lawyers around the world. Its gross revenue exceeds $1,500,000,000 per year. So it’s hardly the kind of profile that would normally attract the American public’s sympathy or concern. But in this instance, Americans would make a serious mistake if they turned a blind eye to Covington & Burling’s fate.

The attack on the firm is just the latest skirmish in the president’s campaign to bring the legal profession to heel and deter lawyers from trying to stand up to him or represent any of his enemies.

With a spiraling list of domestic and international problems on his plate, it is remarkable that the president would devote any of his time and energy to deciding whether one law firm can receive government contracts. It is even more remarkable because Covington & Burling did nothing illegal or unethical to warrant such an action.

In the president’s view, the firm committed an unforgiveable sin: representing former special counsel Jack Smith, who indicted Trump. Not only did Trump order the termination of government contracts, he also suspended “any active security clearances held by… all members, partners, and employees of Covington & Burling LLP who assisted former Special Counsel Jack Smith during his time as Special Counsel.”

The president took special pleasure in this act of retribution.

As he signed the executive order targeting Covington & Burling, one among many he signed last Tuesday, he took a moment to “savor this one.” Adding to his pleasure, the president said, “We’re going to call it the Deranged Jack Smith signing.”

As the Washington Post’s Ruth Marcus observes, President Trump “well knows (because his own lawyers had to obtain security clearances to represent him in the Mar-a-Lago classified documents case)… Covington lawyers need those clearances to do their job as Smith’s counsel.”

The president’s order is the executive equivalent of a legislative “bill of attainder” that accuses Covington & Burling of aiding and abetting “the weaponization of the judicial process.”

The Cornell Legal Information Institute defines a bill of attainder as “a piece of legislation that declares a party is guilty of a crime. Bills of attainder allow the government to punish a party for a perceived crime without first going through the trial process.” In this case, however, no one has been accused of a crime, just an offense against the president

Bills of attainder “inflict… punishment” and “target… specific named or identifiable individuals or groups.” This description seems to fit Trump’s action to a tee. These bills were prohibited in Article I of the Constitution. Duane Ostler, a lawyer and historian, argues that “the Framers viewed the bill of attainder clause as protecting against the federal government's infringement of citizens' property and liberty.”

Isn’t that exactly what targeting Covington & Burling does? It hits them in their pocketbook and hinders Jack Smith’s ability to get effective legal representation.

The president’s order runs up against the spirit of another of Article I’s guarantees, the prohibition ex post facto lawmaking. While that prohibition applies explicitly to Congress, when the executive exacts retribution against someone “retroactively for an action they took that was lawful at the time,” we should all be troubled.

Alexander Hamilton explained why when in 1778 he wrote, “(S)ubjecting of men to punishment for things which, when they were done, were breaches of no law…(has) been, in all ages, the favorite and most formidable instruments of tyranny.” He calls the kind of things the president is doing to Covington & Burling “gross and notorious…act(s) of despotism, as must at once convey the alarm of tyranny throughout the whole nation.”

The president’s attack on one big, powerful law firm is right out of the playbook of authoritarian regimes everywhere. Jasmine Cameron, senior legal advisor for Europe and Eurasia with the American Bar Association’s Justice Defenders Program, reports, “one of the tools that authoritarian governments now use with greater frequency to restrict and pressure members of civil society and opposition figures is to target the lawyers who represent them in the legal system.”

She continues, “The rationale behind this tactic is simple—opponents of autocrats often succeed in pressing their cases in a judicial system, but once a regime manages to sideline principled attorneys—not to mention independent judges themselves—and stacks its official and private-sector legal institutions with government-controlled ‘pocket’ lawyers instead, access to legitimate representation dwindles and rule of law becomes fundamentally compromised.”

Going after Covington & Burling is just such an effort to “sideline” lawyers. Marcus notes that “It is designed to intimidate law firms considering taking on the administration. The message of the order was clear: Do so at your peril. We will come after you.” She points out that, “Trump said as much. ‘And you’ll be doing this with other firms as time goes by, right?’ he asked staff secretary Will Scharf.”

Today, “the major New York law firms, significant players in litigation against the Trump administration during his first term, are nowhere to be found in the flood of second-term litigation. They have privately made clear that they are not interested in taking the risk that Trump will target them and scare off their corporate clients.”

Being targeted is not only a problem for private law firms. It is also a problem for government lawyers whom the president wants in his “pocket.”

Purging the top military lawyers, terminating the lawyer who leads the government’s Office of Special Counsel, ignoring the Justice Department’s Office of Legal Counsel (which normally reviews executive orders before they are released), firing United States Attorneys appointed by President Biden, and installing his personal lawyers to top posts at DOJ are all designed “to curb a critical internal check: independent legal thinking.”

As the New York Times explains, “The Trump administration’s bulldozing of experienced government lawyers comes as Mr. Trump has been violating statutes enacted by Congress, apparently in the hope that the ensuing deluge of lawsuits will give the Supreme Court opportunities to strike them down and expand his power.”

The president does not want to “kill all the lawyers.” He wants lawyers to be fearful and compliant.

In his view, lawyers should neither represent his political opponents nor stand in the way of what he hopes to accomplish. He does not want lawyers who use their independent professional judgment to tell him what he should not do. Instead, their job is to use their skill to help him accomplish whatever he wants, whether it is legal or not.

If he gets his way, all of us will be in jeopardy. A look at history confirms the role that “lawyer silence and complicity played in the erosion of the rule of law in Germany during the 1930s, in Argentina and Chile during the 1970s, and in Hungary and other countries… in more recent years.”

The fate of law firms like Covington & Burling should matter to all Americans.

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College.