Veteran lawyers have reached a curious conclusion about President Trump's deals with big law firms this year: they do not appear to be legally valid.
Trump since coming to office has punished certain firms for their past clients or causes, stripping them of security clearances and government contracts, while trumpeting deals with others, including titans like Kirkland & Ellis and Latham & Watkins.
The White House said the nine firms it's settled with agreed to provide about $1 billion in pro bono services in order to curtail investigations into their hiring practices and maintain access to federal buildings. But the details of those agreements remain murky, even after Democratic lawmakers demanded answers.
"The problem with the law firm deals is … they're not deals at all," said Harold Hongju Koh, a professor and former dean at Yale Law School. "You know, a contract that you make with a gun to your head is not a contract."
Most every American law student takes a course about contracts. And there, Koh said, they learn there needs to be a meeting of the minds. In many cases, what Trump has said in news conferences and social media posts about those deals does not match what the law firms communicated to their partners.
The pro bono commitments started with agreements to help military veterans. But Trump has moved the bar since to include trade deals, immigration enforcement cases and perhaps even defending police officers under investigation for misconduct.
Even in the context of a veteran, Koh said, "what if the veteran is gay or wants to have transgender surgery? Would they approve of that? So that lack of clarity and specificity is all the more reason why there's no deal and no meeting of the minds."
Shortly after Trump came into office for a second term, he signed an executive order banning transgender individuals from serving in the military.
Targeted law firms winning in court
Meanwhile, the law firms that have challenged Trump's actions are fighting — and winning — in court.
This week, a federal judge in Washington, D.C., ruled the executive order against the WilmerHale firm amounted to "a staggering punishment" for once employing lawyers like former special counsel Robert S. Mueller III, who investigated Trump's ties to Russia, and representing the Democratic National Committee.
"The cornerstone of the American system of justice is an independent judiciary and an independent bar willing to tackle unpopular cases, however daunting," wrote Judge Richard J. Leon. "The Order is intended to, and does in fact, impede the firm's ability to effectively represent its clients!"
Koh and others argue that a deal reached under coercion — after executive orders that three different judges have found unconstitutional — is no deal at all.
Mercenary culture of some firms
Steven Brill, who founded The American Lawyer magazine and the Court TV network, said the decision of several big firms to surrender to Trump's demands represents a "terrible development" that's kept him up at night.
He said he accepts a measure of responsibility for the more mercenary culture of some major law firms, following his decision to become the first to publish economic data about firms and their partners' earnings in his magazine decades ago. That's made it easier for top attorneys to switch firms to make more money, chipping away at the bonds of partnership.
"You know, they didn't grow up in a law firm," he said. "They didn't have the collegiality. And a lot of people blame The American Lawyer for that. And I think I have to accept that blame."
Yet Brill said it's ironic that many of the firms that settled with the White House pride themselves on their deal-making acumen, given significant questions about the enforceability about the deals they reached. He's been talking with partners at some of the settling firms.
"I asked one of the partners who made one of these deals, 'What prevents the president from waking up on the wrong side of the bed tomorrow morning and deciding to issue another executive order against you? What protection do you have?'" Brill said.
The partner replied, "Nothing, you know, nothing protects me," Brill recalled.
The nine law firms who Trump said agreed to deals with him declined to comment to NPR about their contracts with the president, or didn't respond to a request for comment.
Potential violations of federal bribery statute
Rep. April McClain Delaney, a Democrat from Maryland and a longtime regulatory attorney, has led an effort this year to get answers from the nine settling law firms. She and 15 other lawmakers asked whether the deals exposed the firms to legal or ethical liability.
Those are real risks, especially when it comes to conflicts of interest between the settling firms and their clients, and even possible lawsuits that pit the firms against their onetime clients, according to Natalie Orpett, the executive editor of the legal site Lawfare.
Orpett said the big law firm deals with Trump also might violate a federal bribery statute for allegedly promising a public official something of value in exchange for recanting an executive order or not issuing one.
"The point of the ethics rules is to make sure that the profession operates with integrity, that it participates in its unique role in preserving and protecting the rule of law in an American democracy," Orpett said.
NPR obtained the firms' written responses to the Democratic lawmakers — which Delaney summarized in an interview as "CYA."
The Cadwalader firm wrote: "We always put our clients' interests first."
"The Agreement is fully consistent with the Firm's legal and ethical responsibilities, as well as its core values and employment practices," Skadden said.
"We firmly believe that the agreement is proper and appropriate," wrote Kirkland & Ellis.
And Simpson Thacher & Bartlett responded that its primary goal "was to protect the best interests of the Firm, including our thousands of lawyers and business professionals, and our clients."
McClain Delaney said she has friends at many of the law firms, and that she understands they made the deals legitimately fearing the White House could put them out of business.
Some of the law firms that refused to settle report losing clients. But others who took Trump to court said they have attracted new business from people who support their decision to challenge the executive orders.
"I would never employ one of those law firms that did that, that essentially folded under these circumstances," media mogul Barry Diller told Bloomberg News last month.
Warning about broader consequences
Federal judges appointed by presidents from both political parties — and other authorities — are slowly warning of broader consequences for the legal profession and the democracy.
For instance, the State Bar of California recently warned that the Trump administration's orders threaten core principles of the rule of law.
"Such actions directly imperil the ability of lawyers at these firms to competently represent their clients and have a chilling effect on the availability of competent legal counsel to represent clients unpopular with the administration," the May 9 bar statement said.
The bar statement said the White House orders could cause extra harm to people with limited means, who need free legal services. McClain Delaney, the Maryland Democrat, put it a bit more bluntly.
"Pro bono was never for the United States government or for a billionaire president," she said. "That's a little obscene, right? Pro bono is for those who are under attack, not the attack dog."
"Ideological" tilt of pro bono work
Mike Howell, of the conservative-leaning Oversight Project, said the legal industry for decades has overwhelmingly provided free services to liberal groups. He's been writing big law firms this year to try to change that.
"We have a very large legal appetite," Howell said. "We asked a lot of firms for support. We're interested in constitutional issues, we're interested in First Amendment issues, we are certainly interested in immigration enforcement and steps that states and other localities are taking to obstruct, evade or otherwise impede the lawful enforcement of immigration law."
At this early stage of negotiations, Howell said he did not want to provide details about which firms are expressing openness to his outreach and which have said "hell no."
"We see a unique moment in time where the legal industry, I think, recognizes that it needs to return to normalcy, where your access to pro bono services or litigation support is not influenced by your ideological or partisan affiliation."
The White House said the deals are meant to hold Big Law accountable.
"Instead of using their power and influence to make our country dangerous and less free, Big Law is working to use its access to the federal government for good," Harrison Fields, a White House spokesman, said about Trump's deals with the firms.
For Yale law professor Koh, the judiciary's disdain for these executive orders, so far, could present a "second chance" for the firms that chose the path of settlement.
As he told graduates of the George Washington University Law School at their recent commencement ceremony: "What you decide is a choice. And when your moment comes — and believe me, it will — please make sure that the decision you make is one you can live with."
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