Tuesday, March 4, 2025

Lawyers are the target of intimidation in effort to chill representation of government employees

Thomas Edsall writes in The New York Times:

With Trump back in the White House, each new week produces an onslaught of radical policy initiatives.

In an essay posted on Substack, Stephen I. Vladeck, a law professor at Georgetown, described a sequence — running from Feb. 21 to Feb. 27 — of what are in effect warnings designed to intimidate and even silence the nation’s legal community.

There is Secretary of Defense Pete Hegseth’s Friday night sacking of the senior military lawyers in the Army, Navy, and Air Force — lawyers who, by law, are required to provide ‘independent legal advice’ to the Pentagon’s civilian and military leaders. There is President Trump’s revocation of security clearances for all of the lawyers at Covington & Burling who were in any way involved in pro bono representation of Special Counsel Jack Smith once he left government service (and Trump’s ominous suggestion, captured in the video in which he signed the revocations, that ‘you’re going to do this with more firms, right?’). There is the threat by interim D.C. U.S. attorney Ed Martin that Covington faces a criminal investigation for its representation of Smith.”

Vladeck explained the significance of these developments:

What the Trump administration is doing is not just about specific lawyers representing unpopular clients, but is rather far more ominous: The administration is acting in ways that will necessarily chill a growing number of lawyers from participating in any litigation against the federal government, regardless of who the client is.

That, in turn, will make it harder for many clients adverse to the Trump administration to find lawyers to represent them — such that at least some cases either won’t be brought at all or won’t be brought by the lawyers best situated to bring them.

In addition to revoking the security clearances, Trump wrote in a Feb. 25 memorandum, “I also direct 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 to the maximum extent permitted by law and consistent with the memorandum that shall be issued by the director of the Office of Management and Budget.”

The effects of the Trump administration’s initiatives soon become apparent. On Feb. 26, Bloomberg reporters Ben Penn and Tatyana Monnay described some of the reverberations of the Trump edict in “Covington Revenge Deepens Worries of Defending Trump Targets.”

“Some firm leaders,” they wrote, “citing corporate clients threatening to walk if they get crosswise with Trump, have rejected outright or put up roadblocks to partners seeking approval to represent D.O.J. lawyers, F.B.I. agents, and other civil servants who’ve faced various forms of attack.”

Penn and Monnay reported that their sources told them that

Individual attorneys want to enter what they see as a nonpartisan battle to preserve democracy by filing merit systems complaints for terminated federal employees, representing Jan. 6 prosecutors under investigation from D.O.J. and Congress, or participating in litigation to halt Trump policies. Firms’ senior decision makers, however, agonize about the sustainability of representing current and former government employees opposite the administration.

It’s not just the left and the center that finds the administration’s policies disturbing:

Walter Olson, a senior fellow at the libertarian Cato Institute, warned in a Feb. 26 essay, “Trump Punishes Large Law Firm for Representing His Adversary,” that the president’s actions threaten “the loss of an independent and qualified bar willing to stand up to authority.”

The implications of the revocation of security clearances, Olson continued, “go far beyond the practice of national security law. Anyone can find themselves in a fight with Trump or his allies on almost any topic under the sun, and the question is whether the counsel representing you in that dispute has to fear being made the next Covington.”

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