A Remarkable Reversal In Trump v. Biglaw
The DOJ now seeks to ‘undismiss’ its appeals of rulings against its executive orders targeting law firms—less than 24 hours after moving to dismiss the appeals.
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On Monday night, the U.S. Department of Justice filed a motion in the D.C. Circuit to voluntarily dismiss the Trump administration’s appeals in four cases where district judges ruled against its executive orders targeting law firms. This was big news, covered not just by legal outlets—such as Bloomberg Law, Law360, and Law.com—but also The Wall Street Journal (gift link), where Erin Mulvaney and Ryan Barber broke the news, and The New York Times.
The dismissal surprised me. I thought the DOJ would at least try to defend the EOs against arguments that they were unconstitutional (six ways from Sunday). And I was weirdly looking forward to seeing the arguments that the government would advance.
It appears that I was right to be surprised. On Tuesday afternoon, less than 24 hours after moving to dismiss its appeals, the DOJ filed a motion to withdraw a motion to voluntarily dismiss appeals. The abrupt reversal was reported by The Times—where Michael Schmidt, Jonah Bromwich, and Devlin Barrett broke the news—as well as The WSJ, NBC, Bloomberg Law, Law360, Law.com, and other outlets.
The motion didn’t explain the reversal of position, simply stating as follows:
Defendant-Appellants respectfully move to withdraw their motion to voluntarily dismiss these consolidated appeals. Counsel for Defendant-Appellants reached out to counsel for Plaintiff-Appellees for their position. All Plaintiff-Appellees oppose, stating, “Plaintiffs-Appellees oppose the government’s unexplained request to withdraw yesterday’s voluntary dismissal, to which all parties had agreed. Under no circumstances should the government’s unexplained about-face provide a basis for an extension of its brief.”
Regardless of Plaintiff-Appellees’ position, this Court has not yet granted the motion to dismiss, and it is the prerogative of Defendant-Appellants to pursue this appeal. In addition, there is no prejudice to Plaintiff-Appellees in the Court granting this motion. This Court should grant this motion to withdraw.
What the heck happened here? The government’s opening brief in the appeals, which the D.C. Circuit consolidated, is due on Friday. My guess is that having to write such a brief caused certain DOJ lawyers to realize how difficult it would be to defend the EOs—and to recognize the high probability that the appeals will produce what would be, from the Trump administration’s point of view, “bad law”—i.e., unfavorable precedent that could be cited against it in other cases where Trump targets are pushing back. So the government (sensibly) filed a motion to dismiss.
But then—and this is still just my speculation, nothing more—folks higher up in the chain of command either changed their minds about the dismissal or learned about the dismissal for the first time. Not wanting to look “weak,” the powers that be countermanded the original dismissal. And so here we are.
Back in January, I predicted that the Trump administration would lose these appeals in the D.C. Circuit and that the Supreme Court would deny certiorari. Assuming the Justice Department’s motion to “undismiss” is granted—and assuming the DOJ doesn’t change its position yet again, which is always possible with this administration—I stand by my predictions. [UPDATE (3:04 p.m.): Yes, I know: “undismiss” isn’t technically accurate, since the D.C. Circuit had not yet ruled on the original motion to dismiss (as noted in the government’s second motion). I just wanted to write the word “undismiss” because it’s fun.]
Let’s say my predictions pan out, and the four firms prevail. That would be, in my opinion, a welcome development—but I still wouldn’t consider this a “happily ever after” story. As OJ readers know, nine law firms reached settlements with the Trump administration to avoid getting “EO’d” themselves (or to get out from under an EO, in the case of Paul Weiss).
So even though the DOJ lost (resoundingly) in the courts, with four judges from across the ideological spectrum ruling against it,1 the Trump administration didn’t walk away from all this with nothing. In their deals with the government, the nine firms promised to perform almost $1 billion in pro bono work for causes supported by the administration. And perhaps more importantly, the EOs appear to have intimidated at least some law firms into reducing their involvement in litigation against the administration. (For additional commentary along these lines, see this Times staff editorial, this Law Dork post by Chris Geidner, and this essay by Vivia Chen.)2
An earlier draft of this post extended congratulations to the four fighting firms. Now, in light of the latest news, I’ll simply wish good luck to them and their counsel: Jenner & Block (represented by Cooley), Perkins Coie (represented by Williams & Connolly), Susman Godfrey (represented by Munger Tolles & Olson), and WilmerHale (represented by Clement & Murphy).
And so the legal battle continues—at least for a while longer. But the final outcome probably won’t change.
(I have reprinted below the various statements issued by the four firms—some of them about Monday’s motion, and some of them about today’s motion.)
JENNER & BLOCK
Regarding the motion to dismiss:
The government’s decision to withdraw its appeals makes permanent the rulings of four federal judges that the executive orders targeting law firms, including Jenner & Block, were unconstitutional. This chapter has once again confirmed what has been true of Jenner for more than a century—we will always zealously advocate for our clients and put them first, without compromise. Our partnership is proud to have stood firm on behalf of its clients, and we look forward to continuing to serve them—guided by these bedrock values—for many decades to come.
PERKINS COIE
Regarding the motion to dismiss:
Today, the government voluntarily dismissed its defense of the unlawful Executive Order (EO) targeting Perkins Coie. The end of the appeal means the district court’s decision stands as a final order, protecting core constitutional freedoms such as free speech, due process, and the right to select counsel without fear of retribution. We are grateful to everyone who supported our firm over the past year since the EO was issued, including our clients, our lawyers and business professionals, and all who stand for the rule of law. As we have for over a century, we will continue to devote ourselves to tireless advocacy on behalf of our clients.
Regarding the motion to withdraw the motion to dismiss:
Hours after asking the court to dismiss its appeal, the Department of Justice has abruptly reversed course and moved to continue its defense of the unconstitutional executive orders. It offered no explanation to either the parties or the court for its reversal. We remain committed to defending our firm, our people, and our clients.
SUSMAN GODFREY
Regarding the motion to dismiss:
The Government has capitulated, which is a fitting end to its plainly unconstitutional attack on Susman Godfrey and the rule of law. In doing so, it has abandoned any attempt to defend the indefensible executive order against our firm. Susman Godfrey fights tirelessly for its clients every day, so of course we defended ourselves when the President sought to punish and intimidate us because of the clients we represent and the values we hold. We fought for ourselves, but we fought for bigger things, too: for a Constitution that protects our freedoms; for a legal profession that depends on equal justice under the law; and for the people across this country who refuse to back down in the face of an Administration that seeks to silence and intimidate them—lawyers and non-lawyers alike. We did not seek this fight, but neither did we run from it. And we won. We salute the excellent lawyers who represented us, the legal profession that supported us, and the clients who steadfastly stood by us as we opposed the Administration’s blatantly unconstitutional actions.
Regarding the motion to withdraw the motion to dismiss:
Yesterday evening, the administration told the court that it gave up and wouldn’t even try to defend its unconstitutional executive orders. Today, it reversed course. Regardless, Susman Godfrey will defend itself and the rule of law—without equivocation.
WILMERHALE
Regarding the motion to dismiss:
The government’s decision to dismiss its appeal is clearly the right one. As we said from the outset, our challenge to the unlawful Executive Order was about defending our clients’ constitutional right to retain the counsel of their choosing and defending the rule of law. We are pleased these foundational principles were vindicated.
Regarding the motion to withdraw the motion to dismiss:
Plaintiffs-Appellees oppose the government’s unexplained request to withdraw yesterday’s voluntary dismissal, to which all parties had agreed. Under no circumstances should the government’s unexplained about-face provide a basis for an extension of its brief.
For those of you keeping track at home, the jurists were Judges Beryl Howell (an Obama appointee), John Bates (a George W. Bush appointee), Richard Leon (a George W. Bush appointee), and Loren AliKhan (a Biden appointee), all of the U.S. District Court for the District of Columbia (D.D.C.). [UPDATE (3:07 p.m.): Corrected Judge Howell’s appointing president.]
When I discussed this issue before, I heard from partners from some of the settling firms who drew my attention to matters they’re handling that are adverse to the administration. I acknowledge this point—which is why I refer to “some” rather than all firms being chilled. For example, take Milbank: Neal Katyal and his colleagues successfully challenged the Trump tariffs in the Supreme Court.
Notwithstanding matters like the tariffs battle, though, when you look at the big picture, there has definitely been a decrease in Biglaw involvement in cases against the Trump administration, at least when you compare the first Trump administration to the second. According to a Washington Post analysis, “Large firms represented plaintiffs in 15 percent of cases challenging Trump executive orders between the start of his term in January and mid-September, compared with roughly 75 percent of cases during a comparable period in Trump’s first term.”
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Please note my two updates (especially if you read the original version of this post as an email):
1. Yes, I know: “undismiss” isn’t technically accurate, since the D.C. Circuit had not yet ruled on the original motion to dismiss (as noted in the government’s second motion). I just wanted to write the word “undismiss” because it’s fun.
2. I corrected Judge Howell’s appointing president. She was appointed by President Obama in 2010, not by President Clinton.
Excellent and timely reporting, Mr. Lat! Thanks, too, for assembling & republishing here the written statements of the firms who're fighting on. I completely agree with you regarding their chances on the merits.
If it weren't so grim — it's hard to find a sense of humor when viewing a POTUS assault on the Rule of Law — the irony would be hilarious: The concern to not "look weak" is a childish one by Trump and his DoJ, but they could not possibly have done anything to make themselves and their position look weaker than capitulating and then uncapitulating. But that's what happens when you have the paradigmatic client from hell. Trump's reputation among knowledgeable lawyers (many, many of them) in NYC and elsewhere has always boiled down to four words: "Won't listen; won't pay." Well, now the taxpayer is paying, but Trump still isn't listening.
"Undismiss" is a fun word, but "uncapitulating" is even funnier.
For our profession's sake, I'm proud of the firms that are fighting on — especially my many friends at Susman Godfrey. I know your readership includes lawyers, including quite senior ones, at many or all of those firms, Mr. Lat. If any of them read this comment: Know well that your courage is observed and appreciated by tens and hundreds of thousands of ordinary lawyers who aren't in the Trump DoJ's sights, but can easily imagine themselves there with you. Carry on, brothers and sisters at the bar!
And I'm proud of the judges who're administering the whipping due to Ms. Bondi and her moronic henchmen: Worse lawyering is hard to imagine, and it sickens me to see it practiced on behalf of our country's executive and executive branch. Perhaps the coming round of appellate-level bench-slaps will stiffen the wills of those firms who've been intimidated into capitulation or timidity. At any rate, the professional stench that Bondi and her henchmen are covering themselves with will never come off. May their infamy be fully documented forever, and digitally available at any moment in the future, in the Federal Reporter, Fourth Series, or even better, the U.S. Reports.