Fighting the Good Fight

A handful of lawyers have not only refused to capitulate to Trump, they have exited Big Law firms to fight for what they believe is right

(Photo by Oselote via Getty Images)

Note: We are featuring this story by writer and lawyer Matthew Wollin as a reminder that, at a time when the news is filled with too many dispiriting stories of billionaires and large organizations and businesses kowtowing to Donald Trump, other Americans understand what’s at stake to defend our democracy—and they are doing their part to help protect our Constitution and the rule of law.

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Being a lawyer is a strange thing—especially these days.

On the one hand, you are supposed to represent the best in the American legal system: an impartial advocate who ensures that everyone’s legal rights receive equal representation in the eyes of the law, no matter their viewpoint. On the other hand, you are a mercenary whose services are available for sale to the highest bidder—and those bidders very rarely have the country’s best interests at heart.

Nowhere is this conflict more present than in modern-day Big Law firms. I should know: I was a litigator at one of those firms for the past 5 years, until last March. That was right around the same time that Trump decided to make an example of those same firms, and inadvertently ended up splitting the legal industry in two.

Trump’s executive orders, which he began issuing this past February and March to punish specific law firms for associating with his political enemies, were plainly unconstitutional. Which meant that these law firms were eminently capable of fighting back and winning—a fact amply demonstrated by the 100% success rate of firms that did choose to fight back (including my former firm, WilmerHale) by suing the administration in court.

But despite that, more than two-thirds of the firms in the firing line decided to make deals with Trump instead of fighting back, making open-ended promises to the president to provide free services to his favored causes in exchange for making the threat to their business go away.

In many ways, this was predictable: High-powered business interests putting their commitments to their pocketbooks over their commitments to their countries is not exactly a new tale, after all. But what was more surprising and encouraging was that it prompted a number of lawyers at those firms to leave—often with dramatic and very public statements of principle.

“I am a cog whose words and actions cannot mean a thing. But if my words mean nothing, so too do yours. If my actions mean nothing, so too do yours,” Andrew Silberstein, an associate at Wilkie Farr, wrote to his firm’s executive committee and entire partnership after they announced their capitulating deal with Trump. He went on:

So too the words and actions of every associate and partner at this firm and every other. Of all workers left to the whim of corporate executives who have forgotten the import of truth and principle. But I know that to be false. Our words and actions mean everything. Every day comes clearer that individuals too must fight.

Jacqui Pittman, an associate at Kirkland & Ellis, also resigned his position by telling the entire firm, “in light of this afternoon’s announcement, [I] cannot continue at Kirkland in good conscience. While I had hoped to stay and grow at K&E, I can no longer be complacent or ignore the truth of what’s happening for the sake of temporary comfort...we are all uniquely positioned as lawyers to advocate for others, and individual voices hold weight even in the most powerful spaces.”

All in all, at least 10 individual attorneys made similar statements like this—and while 10 might not seem like a lot, for Big Law lawyers, who are deeply trained to never say anything to the press about anything, it was actually quite a startling number. This is particularly true when you consider that these very loud statements were also accompanied by a much quieter but larger movement of attorneys away from the firms that capitulated—a movement large enough that the legal industry termed it a “mass exodus.”

Perhaps even more strikingly: These statements were followed by action. Namely, by the creation of several new organizations devoted to defending the rule of law—organizations that immediately began to hire the attorneys who left the capitulating firms. Organizations which likely would not have been created had those firms not surrendered in the first place.

This included organizations such as the Washington Litigation Group, a newly formed nonprofit firm whose mission is to “represent individuals and institutions who have been unlawfully targeted for exercising their rights.” Their most recent filing is a brief on behalf of former leaders of the Justice Department opposing the retaliatory prosecution of James Comey.

“[We] are more than 100 former senior officials of the Department of Justice, who served the government and the people of the United States in both Democratic and Republican administrations,” that brief says. “[We] harbor grave concerns that if left undisturbed, vindictively motivated prosecutions like this one will threaten core due process protections, undermine the rule of law, inspire further abuses of prosecutorial authority, and ultimately erode the public’s respect and faith in the nation’s criminal justice system.”

Another organization, Lowell & Associates, hired two of the defecting associates from Skadden, and has made new business to “defend the integrity of the legal system and protect individuals and institutions from government overreach and other threats to fundamental rights.” In their complaint filed on behalf of Lisa Cook, a Federal Reserve Board governor—a complaint taking the fight to Trump that alleges numerous constitutional and statutory violations for her firing—they wrote, “The operational independence of the Federal Reserve is vital to its ability to make sound economic decisions, free from the political pressures of an election cycle.” The complaint asked for a finding in Cook’s favor in order to “safeguard her and the Board’s congressionally mandated independence.”

Statements like these—statements that the rights at stake are not only those of the specific individuals involved in the case, but the rights of the country at large—have power, particularly when the eyes of the entire country are upon them. They are the kinds of statements that require a lawyer who knows how to deploy them properly—the exact type of lawyer that Trump’s assault on the legal industry seems to have identified and empowered.

To be fair, the movement of lawyers away from the Big Law firms that prioritized profits over principle is still far from a fully-fledged resistance within the legal industry. But it is real nevertheless, and it seems unlikely to disappear anytime soon, particularly given that capitulating has made vast swaths of law students look down on those firms. Because one of the primary ways that those firms maintain their standing at the top of the market is by having large numbers of top-tier law students eager to work there and ready to compete for those jobs.

What’s more, this relatively small but decisive movement by a few highly paid lawyers toward jobs that align more clearly with their principles has had an immediate impact: Public servants who face damage from a vengeful Trump can count on a new group of lawyers who will not only help them defend their jobs, but defend the rule of law itself.

At a time when it can be hard to find genuine reasons for uplift, there are a growing number of lawyers committed to fighting the good fight.

Programming Note: Matthew Wollin will join Steven for a short Substack Live conversation about this topic at 1PM ET. We hope you’ll join us.

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