Last week, the American Bar Association (“ABA”) filed what can fairly be described as  a bombshell lawsuit in federal court in Washington, D.C. The suit asks the court to declare unconstitutional and stop the Trump administration’s “ongoing unlawful policy of intimidation against lawyers and law firms.” The ABA, a non-partisan non-profit organization founded in 1878, is the nation’s largest voluntary association of legal professionals. It is represented in this case by powerhouse law firm Sussman Godfrey (one of the firms targeted by an executive order earlier this year). This isn’t just any lawsuit. The complaint names the Office of the President and—in light of the Trump administration’s proclivity to dodge the “who’s responsible” question—every high level government department, along with every cabinet official (the caption goes on for eight pages). The normally staid organization has found its voice on this issue over the past few months, issuing several statements and launching a rule of law initiative, and it does not mince words in this lawsuit, stating, “Today,…the American legal profession faces a challenge that is different from all that has come before. It is unprecedented and uniquely dangerous to the rule of law.”

The complaint explains the administration’s strategy to essentially weaken the legal profession that it sees as a threat to its agenda: “Since taking office earlier this year, President Trump has used the vast powers of the Executive Branch to coerce lawyers and law firms to abandon clients, causes, and policy positions the President does not like.” It has done so “through a series of materially identical executive orders designed to severely damage particular law firms and intimidate other firms and lawyers…; a series of similar ‘deals’ or ‘settlements’ between the Administration and certain law firms in order to avoid such Orders or have them rescinded; other related executive orders, letters, and memoranda. . . and public statements by the President and his Administration publicizing the objectives of the Law Firm Intimidation Policy.” The “attacks on law firms…are thus not isolated events, but one component of a broader, deliberate policy designed to intimidate and coerce law firms and lawyers to refrain from challenging the President or his Administration in court, or from even speaking publicly in support of policies or causes that the President does not like.” Finally, the ABA explains that despite four different district court judges finding the orders blatantly unconstitutional and illegal, the administration’s strategy is ongoing. It cites reporting as recent as June 1st indicating Trump and White House deputy chief of staff Stephen Miller’s interest in keeping threats of more “executive orders on the table because they think it dissuades the best lawyers from representing critics of the administration.” 

Why is the “Law Firm Intimidation Policy” (as dubbed in the lawsuit) so insidious? In a nutshell, it “is uniquely destructive because of the critical role that its targets—lawyers—fulfill in our constitutional system. Without skilled lawyers to bring and argue cases—and to do so by advancing the interests of their clients without fear of reprisal from the government—the judiciary cannot function as a meaningful check on executive overreach.” Even worse, the ABA documents the administration’s strategy having the desired impact. “Even as federal judges have ruled over and over that the Law Firm Orders are plainly unconstitutional, law firms that once proudly contributed thousands of hours of pro bono work to a host of causes—including causes championed by the ABA—have withdrawn from such work because it is disfavored by the Administration, particularly work that would require law firms to litigate against the federal government.” Many law firms are laying low, and “organizations (including the ABA) that have historically relied heavily on top law firms to bring pro bono cases—particularly against the federal government to challenge unlawful executive action—face serious and sometimes existential crises, as those same law firms are declining to represent these organizations.” The complaint cites examples of such instances from particular law firms and, chillingly, does so anonymously in ways reminiscent of a prosecutor’s charging documents against mob families out of real fear of retaliation. As the complaint states, “This threat has a deliberately powerful chilling effect. Already, many firms are declining to take on cases that challenge the administration’s policies. That’s not a side effect of the crackdown. It was the purpose all along.”

The federal judiciary, especially at the district court level, has been the sand in the gears to this administration’s unlawful orders and unconstitutional agenda, which has cast aside due process and the First Amendment in ways never seen before. In May alone, the White House lost 96 percent of its cases before federal district courts, with appointees of both Democrat and Republican presidents curbing the excesses of the Trump regime. As one expert explained, that the “rulings are coming from a stunningly broad array of jurists and many aren’t even being challenged on appeal” is an indication of both the continued need for these legal challenges and also the flimsy legal ground on which the administration stands. But courts cannot adjudicate cases that aren’t brought—and that requires lawyers willing to challenge a retributive and vengeful administration. Our legal system, and the rights of so many individuals and perhaps even our democracy, depend on it. If lawyers are afraid of what will happen to them if they stand up and oppose the government, then the whole system collapses. As the ABA emphasizes in its lawsuit, the judiciary needs to be strong and independent referees, but it needs lawyers willing to play the field.

We will see how this important lawsuit plays out. The case is assigned to Judge Amir Hatem Mahdy Ali who has already drawn the ire of Trump loyalists for daring to rule against the executive order cutting funding for foreign assistance programs administered by the U.S. Agency for International Development. Inevitably, this will likely end up before the Supreme Court. Chief Justice Roberts has talked a good game about judicial independence. Hopefully he and the other justices recognize that such an ideal cannot exist without lawyers able to act free from coercive intimidation by the full force of the presidency.