The Justice Department has subpoenaed major law firms that made agreements with President Donald Trump after his administration targeted firms he opposed, according to reporting by The New York Times. The subpoenas put those firms back in the fight they tried to avoid: either resist the administration, or turn over information about how the deals were made and monitored.
The fight grows out of a lawsuit by the American Bar Association against the White House. The ABA sued last year to stop Trump’s actions against law firms, which were aimed at firms associated with clients or causes he disliked. Firms that challenged the executive orders in court have been winning, according to reporting cited by legal commentator David Lat, while Lat has also reported that large firms have been largely absent from many legal challenges to Trump administration policies.
Some firms chose another route. Paul Weiss, Kirkland & Ellis, Latham & Watkins, Skadden Arps, Willkie Farr, Milbank, A&O Shearman, Simpson Thacher and Cadwalader made agreements with the administration, according to the reporting. Those arrangements included promises of pro bono work aligned with Trump or MAGA priorities, though the public record described here does not establish how much, if any, of that work has materialized.
The Epshteyn problem
The ABA has sought communications involving Boris Epshteyn, Trump’s personal lawyer. The New York Times reported that Epshteyn negotiated the agreements with the firms, despite not being a federal government employee. That detail is not a footnote. If a private Trump lawyer was helping broker arrangements tied to official White House pressure, the paper trail becomes the story.
The Justice Department has asked a federal judge to block the ABA’s document demands, according to The Times. The judge has not ruled. While that request is pending, the department subpoenaed nine firms that made deals with Trump and four firms that fought the executive orders in court, seeking the same category of information the ABA wants from the administration.
According to The Times, the subpoenas demand all communications the firms had with Epshteyn, along with communications about the implementation, enforcement or monitoring of the agreements between the firms and the White House. The Times, citing people familiar with the matter, reported that the government’s move was meant to put law firm leaders under pressure similar to what the ABA’s subpoena placed on Epshteyn.
The subpoenas also seek depositions from senior figures at some firms, according to the account. The firms have hired Washington lawyers as they decide how to respond, The Times reported. Some firms that made deals with Trump fear that resisting the subpoenas could invite another executive order against them, according to one person cited by the paper.
A merger wrinkle
Cadwalader adds a separate complication. The firm, described as New York’s oldest law firm, made one of the agreements with the Trump administration, then merged with Hogan Lovells. Bloomberg Law reported that Hogan Lovells, which had not made such a deal, says Cadwalader’s commitments do not bind the combined firm.
The firms that fought Trump’s orders may have a cleaner litigation posture if they choose to challenge the subpoenas. The firms that made deals face a messier choice because the requested records concern the very arrangements they accepted. The Justice Department has now turned those agreements into discovery targets, which is the sort of paperwork problem large law firms usually warn clients about before anyone signs.
This story draws on original reporting from Techdirt.