In the face of rising autocracy, be a Perkins Coie, not a Paul Weiss

We are witnessing a “second American revolution” that Project 2025 architects said would be “bloodless if the Left allows it to be.”

The Trump administration is rapidly dismantling democratic institutions, seizing control of independent agencies, erasing history, attacking civil liberties and DEI, and deporting refugees for their tattoos. President Donald Trump has appointed retribution-driven sycophants to head the Department of Justice and FBI, called the media "illegal," openly defied the Constitution by threatening to defund Columbia University, disobeyed court orders and usurped Congress, plunging the United States into a constitutional crisis.  

Trump promised he'd be a dictator for a day. It's been a very long day indeed. Through executive orders, he’s now attacking lawyers and American law firms he deems to be engaging in “frivolous, unreasonable, and vexatious litigation against the United States.” These orders target Perkins Coie, Paul Weiss, and Big Law generally. Their responses show lawyers can either resist or capitulate in the face of rising autocracy.

Canadian lawyers must stand in solidarity with our American counterparts who uphold the rule of law. We must resist any attempts to intimidate or co-opt us when Trump’s actions inevitably reach across the border.

The administration’s actions bear the hallmarks of rising autocracy, but Trump's attacks on lawyers should come as no surprise. Lawyers are guardians of the rule of law, critical guardrails against abuses of power, and thorns in the side of tyrants. However, they can also be handmaidens to autocracy when they remain silent or collaborate. After all, lawyers drafted and upheld the laws that enabled the Holocaust, Jim Crow segregation, and the forced assimilation of Indigenous peoples.  

Are executive orders against law firms a new form of catch-and-kill?

Trump's executive orders stripped Perkins Coie and Paul Weiss attorneys of their security clearances, barred their clients from government contracts, and threatened to sue for racial discrimination, citing DEI. The order cited Perkins Coie's work with Hillary Clinton’s 2016 presidential campaign and ‘activist donors’ such as George Soros to overturn enacted election laws that require voter identification.

The second order took issue with Paul Weiss' hiring of lawyer Mark Pomerantz, who had previously left the firm to join the Manhattan District Attorney’s office “solely to manufacture a prosecution against President Trump.” Last May, Trump was convicted of 34 felony counts related to falsifying business records in an election-fraud hush-money case involving Stormy Daniels.

Attacking law firms for who they choose to hire or represent is likely unconstitutional and an unlawful interference with contractual relations.

But this is not just about retribution. These actions aim to chill adverse legal action and bend law firms to Trump's will. The executive order would shutter Perkins Coie, whose top clients all have government contracts. The firm fought it in court and secured a temporary restraining order.

Meanwhile, in exchange for lifting the executive order, Paul Weiss agreed to provide $40 million in Trump-selected pro bono services, disavow DEI, and undergo a comprehensive employment practices audit. The firm’s alumni penned an open letter protesting the move.

“Instead of a ringing defense of the values of democracy, we witnessed a craven surrender to, and thus complicity in, what is perhaps the gravest threat to the independence of the legal profession since at least the days of Senator Joseph McCarthy,” it stated.  

It's a lose-lose situation reminiscent of predatory Kremlin tactics that removed political rivals to Vladimir Putin within the Russian elite. In her book Putin's People: How the KGB Took Back Russia and Then Took On the West, journalist Catherine Belton described how Putin used pre-trial detention to force businesspeople to hand over their businesses. It seems it only took an executive order to get Paul Weiss to submit.

Trump's sweeping March 21 executive order calls out Big Law pro bono programs. It also calls out Marc Elias, the renowned voting rights and election integrity lawyer, for “egregious unethical conduct” over his “direct involvement in creating a false ‘dossier’ to interfere with the 2016 presidential election.”

It also calls on the DOJ to sanction lawyers and firms engaged in "frivolous, unreasonable, or vexatious litigation against the United States" (i.e. anything that checks Trump’s power) and for their security clearances to be revoked, thereby knee-capping their practices.

The order is riddled with unsubstantiated and hypocritical allegations that are especially rich considering judges have repeatedly rebuked Trump administration lawyers for conflicts of interest and bad faith arguments. Now that Trump has dispensed with niceties like evidence and due process, the orders could have a powerful chilling effect.

Canadians are not immune

These actions sound alarm bells for lawyers specializing in constitutional law and human rights. But they should also concern corporate commercial lawyers, trade lawyers, litigators and government lawyers in the U.S. and Canada.

Why?

Because without the rule of law there is no contract law. Power, money, influence and caprice will determine who wins, not the merits of the case or the skill of the lawyer bringing it. When might equals right, the powerful decide how business is done — not the markets or contracting parties.

Verizon is a case in point. Its FAA contract could soon be cancelled and replaced with Elon Musk's Starlink in an unprecedented violation of procurement rules. An unenforceable contract is not worth the paper it's written on. This holds significant implications for Canadian businesses that bid on lucrative U.S. government contracts and rely on U.S. tech and supply chains.

Without the rule of law there is also no free trade. It doesn't matter if we re-negotiate CUSMA. Trump has completely sidestepped its dispute resolution and tariff provisions to extract concessions from Canada for dubious reasons. What form of due process can Canadian investors expect to protect factories if they move to the U.S. to avoid tariffs? What good is national treatment when Trump uses his power to extract concessions from American companies? If Trump defies his own courts, would he obey a CUSMA panel?  

Courageous lawyers are pushing back

Lawyers in the U.S. are pushing back, while their global counterparts condemn these actions: 

• The ABA sounded the alarm in its February 11 statement condemning the shutdown of USAID and attacks on judges;
• 17 law associations globally condemned Trump's attacks on American lawyers and sanctions on the International Criminal Court;
• More than 1,700 associates have signed an open letter calling on Big Law to defend the profession.

Yet many Big Law firms remain silent. Rachel Cohen, a Skadden, Arps, Slate, Meagher & Flom associate who penned the open letter, understands the urgency of this situation. She submitted her two-week "conditional notice" to the multinational firm, revocable if it chose to act.

“Trump is taking an enormous gamble by targeting some of the most powerful lawyers in the country first,” she said in a LinkedIn post.

“With effective coordination, we could easily resist him. But as yet, his gamble is paying off. I will not watch the legal system collapse from my window office 4000 feet off the ground and stay silent out of fear.”

Cohen left Skadden Arps when it failed to act, and last week, Trump announced he’d signed a deal with the firm, which prompted another lawyer to resign.

 “There is only one acceptable response from attorneys to the Trump administration's demands: The rule of law matters. The rule of law matters,” Brenna Trout Frey wrote on LinkedIn.

“As an attorney, if my employer cannot stand up for the rule of law, then I cannot ethically continue to work for them.”

It's time for Canadian lawyers to speak up

The power-hungry will "kill all the lawyers" if they can't co-opt them to do their bidding — unless we fight back. Canadian lawyers and firms must speak up and condemn this blatant attack on the rule of law. We must push back on any attempt to co-opt us to advance unconstitutional, unlawful and anti-democratic measures that violate our core values.

Our silence will not protect us. It will only delay the inevitable.

As historian Timothy Snyder wrote: "Be as courageous as you can. If none of us are prepared to die for freedom, we will all die under tyranny."