Trump, Shakespeare and the Rule of Law: A Perilous Paradigm
William Shakespeare is our greatest playwright. His mastery of language and narrative is legendary. His major works have survived the test of time. Shakespeare’s prose has shown remarkable staying power in the modern vernacular. We regularly employ phrases that originated with the Bard. Examples include “Love is Blind,” “It’s Greek to Me,” “Method in the Madness,” “Brave New World,” “Wear Your Heart on your Sleeve,” “All the world is a Stage,” “To Thine Own Self Be True.” Simply marvelous how he distilled complex ideas about human nature into memorable expressions.
However, the modern audience may sometimes interpret pithy Shakespearean idioms in a manner inconsistent with his original intent . A striking example is the famous quote “First, Let’s Kill All the Lawyers" from the play Henry VI, Part 2. This line is cited “ad nauseam” by authors, journalists and comedians as a catch all quip summarising frustration with lawyers and the legal system. It crisply expresses anti-lawyer sentiments. It makes lawyers a punchline, joke or quip target - the purpose of which is to capture society’s frustration with an elite ad moneyed profession that makes life so complicated for the common man. Off with their heads follows in short order! As a proud attorney, I have always responded with an amused and bemused smile.
Lesson alert! The modern spin on this quote is a gross mischaracterisation of Shakespeare’s meaning. The line in the play was spoken by a radical and villainous character who wanted to overthrow the lawful government and assume power for his rebel group. Eliminating the lawyers would be in their interest because a chaotic society without rules and order would be a fertile landscape of their revolution. The lawyers were the main opponents of tyranny and the ultimate protectors of freedom and liberty. Supreme Court Justice John Paul Stevens used the quote in an opinion- acknowledging that Shakespeare intended to the phrase as “A Compliment to the Legal Profession.” So there!!
President Donald Trump has clearly adopted the negative spin of the phrase by his aggressive denunciations of lawyers and legal processes. Lawyers are regular targets of his undisciplined rhetoric. However, there is duality here because the nature of Trump’s attacks on the profession confirm the original wisdom of Shakespeare’s wording- Trump hates lawyers because they are one of the most powerful obstacles to his authoritarian methods and goals. His recent Executive Orders targeting major American law firms are an exemplar of a modified version of the Shakespeare quote. Now, it is “First, Let’s Kill All the Lawyers Who Disagree with Donald Trump." The corollary is that if you “bend the knee” to Donald Trump, your law firm can survive. Heck, perfectly obedient lawyers who openly give up their independent judgement may become Attorney General of the United States! Looking at you- Pam Bondi.
A short summary of the Trump Administration’s sustained attack on disfavoured white shoe law firms is appropriate. Executive orders were directed at Perkins Coie, Paul Weiss, Covington and Burling, Wilmer Hale and Jenner and Block. Additional orders were in the works that would target 9-10 other firms, including Kirkland Ellis, Skadden Arps, Simpson Thatcher, Latham Watkins and Munger Tolles. The common denominator among the firms was that lawyers from their firms had participated in legal actions or political activities contrary to Donald Trump’s interests. They had represented the Clinton campaign, the Democratic National Committee, the Mueller investigation of the Trump campaign’s collusion with Russia, the Jack Smith Special Counsel prosecution of Trump for the events of January 6th and his unlawful possession of classified documents after he left the Presidency. The man certainly generates a massive amount of legal work. The scope and substance of the Executive Orders is unprecedented, breathtaking and grotesque. The Orders suspend ALL security clearances for ALL firm employees. They aggressively limit access to federal buildings and contact with federal agencies and workers. They direct all federal agencies to review their contracts with third parties and identify whether those contractors have a relationship with these law firms. They explicitly instruct the agencies to review those contracts to evaluate threats to national security or the national interest. A supplemental order directs the Attorney General to monitor all law firms for unreasonable opposition to Trump Administration policies. Simply ORWELLIAN!
The scope of the orders would seriously impede the targeted law firms from effectively representing individuals, corporations or other entities who had any business interactions with the federal government. It is a bare knuckled attempt to destroy law firms who had the temerity to represent people or causes who were politically opposed to Donald Trump. A vendetta driven order- motivated by personal animus. There is no evidence the content of these orders was reviewed or approved by The Office of Legal Counsel- which historically is standard procedure for Executive Orders. The “national security” and “national interest” bases for the orders is wildly vague. There are references to DEI based recruitment and promotion policies at the firms which allegedly support the orders. Basically nonsense- no facts. The language employed in the Order is at a high school level- similar to modern day tweeting if you know what I mean. Frankly, an embarrassment to any sense of process, decorum or legal fairness. Truly, a low point and there is not even an attempt to be subtle or nuanced in the language of the Orders.
The responses of the targeted firms has been enlightening- inspiring in some cases and disturbing in others (the majority). All the firms were under significant pressure. The client base was definitely at risk because many clients would be spooked by the notion that the President of the United States hated their lawyer. Rainmakers and major revenue producers would be tempted to depart to firms not under the same cloud. If the Executive Orders could survive legal challenge, the targeted firms ability to thrive, and even survive, would be tested in a big way. This is shakedown and shakedowns can work in certain situations. First, the person initiating the shakedown must be unprincipled and unapologetic about their awful actions. Trump is poster child for this definition. Second, the shakedown victim must have something to lose- and the firms here with their lucrative compensation structures and their prestigious reputations are logical targets.
The sad reality is that 9-10 of the firms caved rather quickly. In the face of intimidation, they capitulated. When courage was demanded, cowardice stepped forward in all its glory. The consent agreement terms that led to Trump withdrawing the Executive Order adopted the same benchmarks. The firm would dedicate hundreds of million of dollars in free pro bono legal services to causes selected by Mr Trump and his acolytes. Further, the firms would review their hiring policies and report to the administration on their progress in removing any DEI based program. The firms collapsed to preserve their pocketbooks. Their lack of resistance and spine should be a message to their clients- geez, do I want these guys to represent me when they fold so quickly? The episode confirms how the rule of law require steadfast individuals and resilient institutions to stay strong when autocrats test the system. Rules and regulations aren’t sufficient- you need people to fight for them.
The good news is that four firms have fought back, filing suits against the administration seeking injunctions against execution of the orders. The ultimate goal is for the orders to be stricken down completely as unconstitutional. All early signs are the claimants will prevail. I expect the District courts will grant injunctions and ultimately strike the Order at issue. I am confident the law firms will win because the Executive Orders are NONSENSE. The orders are patent violations of multiple constitutional provisions. Make no mistake, the orders are NOT legitimate uses of Presidential power. The orders will not stand because they seek to prevent lawyers from fulfilling their role in our legal system. You cannot penalise a law firm for representing claimants disapproved of by those in power. The orders completely undermine the concept of an independent client choosing an independent lawyer to press their grievances against illegitimate use of governmental power. It is a violation of the First Amendment to aggressively punish speech- particularly viewpoints different from those held by the administration in power. It goes beyond chilling speech- it overtly squelches dissent of any kind. Access to the legal system is a core rights in our system and these orders are calculated to diminish that access. The First, Fifth and Sixth Amendments require the courts to eviscerate these Executive orders. It is viewpoint based retaliation and personal retribution combined. Reverse engineer things for a moment. What would conservatives have said if President Obama ordered the identical limitations against all law firms that challenged Obamacare or any gun control legislation. How would the have been received? Obvious answer! The crystal clear legal principles to be applied here heighten the disappointment at the firms who negotiated with the President. Sophisticated firms with firepower unilaterally disarmed in a callow manner. Such responses will encourage further “stretch the envelope” acts by an authoritarian inclined White House.
We are a democracy and a Republic. We are not an autocracy. Lawyer, above all, should know those fundamental principles and act accordingly. Watch the upcoming case decisions on this order with me- bet you I am correct. Trump will lose this fight in court.
