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Trump v. big law

2025/4/4
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Ankush Khodori
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Meghna Chakrabarty
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Stephen Gillers
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Thomas Sipp
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Thomas Sipp: 我最初加入Skadden是因为经济上的需求以及对公司声誉的信任。然而,Skadden与特朗普政府达成的协议让我深感失望,这不仅损害了公司的声誉,更重要的是,它对法律职业、司法独立以及美国的民主制度都造成了严重的负面影响。我无法继续留在一个与我的价值观相悖的机构,因此我选择辞职。我知道我的决定可能会让我面临未来的经济困境,但我相信作为一名律师,我有责任维护法治,为那些依赖律师维护自身权利的人们发声。 Ankush Khodori: 大型律师事务所本质上是营利性企业,其首要目标是追求利润最大化。它们通常服务于富人和大型企业,因此在面临来自政府的压力时,优先考虑自身利益而非道德原则不足为奇。保罗·魏斯律师事务所声称如果他们不与特朗普政府达成协议就会倒闭的说法是站不住脚的。这些律师事务所的合伙人年收入高达数百万美元,他们不可能因为损失一部分利润而破产。特朗普政府的行为是权力滥用,但其对普通美国人的影响有限,因为大多数美国人无法负担得起这些大型律师事务所的服务。 Stephen Gillers: 特朗普政府的行政命令是虚假的,其权力基础不存在。律师事务所面临的不仅仅是法律诉讼,还有其他形式的惩罚。这些律师事务所没有义务公开驳斥特朗普行政命令中的说法,它们的首要责任是维护其客户和自身利益。特朗普政府的行为虽然令人谴责,但这五家律师事务所与通往极权主义的道路之间存在巨大脱节。法治仍然存在,法律、法院和律师仍然在发挥作用。 Meghna Chakrabarty: 特朗普政府对律师事务所施加的压力类似于勒索软件攻击,其行为是对总统办公室道德权威的严重损害。特朗普在行政命令中公开承认利用职权进行个人政治报复,这进一步削弱了总统办公室的道德权威。这些律师事务所与特朗普政府达成的协议可能违反了联邦刑法中的敲诈勒索罪,虽然司法部不太可能采取行动,但这仍然是一个严重的问题。特朗普政府的行为是美国民主制度面临的严重威胁,我们必须警惕这种权力滥用行为。

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Thomas Sipp, an immigrant who learned English in middle school, resigned from the prestigious law firm Skadden after it settled with the Trump administration. He felt that the firm's agreement undermined his values and his belief in the American legal system.
  • Thomas Sipp resigned from Skadden.
  • He was an immigrant who learned English in middle school.
  • Skadden settled with the Trump administration.
  • Sipp felt the settlement undermined his values and belief in the American legal system.

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Support for WBUR comes from MathWorks, creator of MATLAB and Simulink software for technical computing and model-based design. MathWorks, accelerating the pace of discovery in engineering and science. Learn more at mathworks.com.

Support for this podcast comes from Is Business Broken?, a podcast from BU Questrom School of Business. A recent episode asks what happens when big investors hold stakes in competing companies. Stick around until the end of this podcast for a preview. WBUR Podcasts, Boston. Thomas Sipp was 10 years old when he moved from Japan to America.

And so I learned English in middle school. My parents separated soon after we moved. And so I was raised by a single mom who doesn't speak a lot of English. And, you know, it was difficult. Like learning a language in middle school is tough. And I had an accent that I worked really hard on.

Thomas went on to college and earned his undergraduate degree in his home state at the University of Texas. After that, law school. For an immigrant kid like me who learned English in middle school...

You know, went to a great institution, University of Texas, like, you know, but, you know, it's a public school. And suddenly Columbia Law School is asking me to come and, you know, that they'll help fund my time. There is, you know, is a hard offer to turn down. Funding, though, didn't mean free. So Thomas took on large student loans. But once he graduated, major law firms, which offer big salaries, they were very attractive to him. Places like Skadden, Arp, Slate, Meager and Flom.

They're prestigious and they pay you a lot of money. And I was raised by a single mom who I promised when I was a kid that I'd be able to take care of her when I'm older. And so those were just the sort of reasons that attracted me to Skydive too. And then on top of that, the firm is holding itself out as being principled that it has values beyond just

making a profit. It has certain commitments to pro bono work and diversity initiatives that distinguish itself from its peer firms. Skadden, though, is a huge U.S.-based multinational law firm. They have more than 20 offices and more than 1,700 attorneys work for the firm. In 2023, Skadden grossed more than $3.2 billion, which makes it the fifth highest-grossing law firm in the world.

Now, Thomas started in September of 2023 on Skadden's litigation team. He felt so proud, he says, and privileged to work at one of the premier law firms in the country. But last Friday, all that changed. ♪

We begin with some breaking news. The Trump administration reached a settlement with the Skadden Arps, Slate and Meagher firms. The law firm was just one of the targets and executive orders aimed at firms with prior associations to Trump's political enemies. This is On Point. I'm Meghna Chakrabarty. President Trump is indeed going after his personal and political enemies, and he is using the power of the presidency to do so.

Last month, he signed several executive orders against some of the country's biggest law firms. The reason? They dared to take cases that challenged Trump's agenda or hired people he does not like, or they have diversity initiatives in their own firms hiring. To be clear, firms of this size also take cases that Trump most certainly supports because that's what big law firms do. But the president doesn't seem to recognize that.

The executive orders threatened to revoke these firms' security clearances, ban access to government buildings, and restrict government clients. And we'll talk about all of the firms in just a minute. Interestingly, there was no executive order specifically targeting Skadden. But according to Skadden's executive partner Jeremy London, he knew one was coming. So the firm decided to cut a deal instead.

Under the deal, Skadden agrees to provide at least $100 million in pro bono work to causes supported by the Trump administration.

It also agreed to commit, quote, "to merit-based hiring, promotion and retention," end quote, and fund at least five fellows as part of a scholarship fund. In a firm-wide email, Jeremy London stated, quote, "We entered into the agreement the president announced today because when faced with the alternatives, it became clear that it was the best path to protect our clients, our people, and our firm," end quote.

Now, we reached out to Skadden for comment, but received no response. Sort of victory lap from the administration, right? I remember the article I read was quoting the president saying, you know, something along the lines of, you know, these firms are just begging to sign this deal. You know, they're just saying, like, you know, they're just asking where to sign. So it doesn't really even seem like much of a negotiation. I thought it made the firm look weak. That was Thomas again. The deal was struck last Friday, and he says he did not eat or sleep all weekend.

So I finally start just writing my thoughts down and a lot of them were questions at the beginning, you know, and I realized that those questions were becoming statements. And, you know, on Sunday night, I realized this is what I was writing was starting to look like a resignation. Thomas wondered how the firm could comply with the agreement. What would stop the president from going after Skadden again and again, asking more, and he also asked himself more personal questions about

Like, why did he become a lawyer in the first place? Even though the ideas about race in Japan is different from, you know, our conceptions of race in the United States, like, I really felt so, like, inspired by at least the potential of what America could be as a sort of place where, you know, people are valued for who they are and, like, what they do as opposed to what they look like. And this system exists because of

the laws that people have fought so hard for, right, in the United States, and that continue to, you know, build upon itself. And obviously, it's not a straightforward trajectory, but I really wanted to be a part of that system, that process. On Monday of this week, Thomas met with his managers.

I talked about my background and why I believe these things so strongly. And that because I know that Skadden's agreement with the Trump administration is helping destroy something that I've come to love so much, that if I stayed, I would be betraying myself as much as my country. So I thanked them, I told them I'll miss them, and I resigned.

Thomas sent out his resignation letter to his team, and in the letter, he addressed the elephant in the room, that he would be seen as a, quote, young attorney too eager to throw his career away, end quote. Thomas knows his decision comes across as potentially naive, but to him, there's no other option. Here he is again, sharing a little more of what was in his resignation letter.

the consequences of scatting's agreement with the trump administration doesn't just impact the firm it impacts the profession it impacts the independence of the judiciary which is crucial for you know our constitutional system and how that impacts our democracy

Thomas is 27 years old. He just graduated from law school two years ago. He still has his student loans and his mother that he financially helps and his career that just began. I'm still nervous about the future. I know what I did, what I'm doing, even what I'm doing right now and speaking to you is probably closing some doors.

And I realized, as I thought more and more about this over the weekend, that there's someone else like me in America right now, some middle schooler, maybe even came from another country who's in a history class thinking like, what would I do? Would I do the right thing? And I really believe that as a lawyer,

I have a responsibility to that person, to that kid, you know, and to everyone else too in this country who depend on lawyers to uphold the rule of law so that everyone can, you know, make a life here and enjoy their liberties. Thomas Sipp, he resigned from the law firm Skadden just four days ago.

Okay, so here's how this is being talked about. It's President Trump's war against big law. Well, let's take a look at that. And joining us now is Ankush Kodori. He's a senior writer for Politico and a legal affairs columnist.

He's author of the recent article, I Worked at a Big Law Firm, and Here's What to Know About the Surrender to Trump. And that law firm that Ankur used to work at is Paul Weiss, Rivkin, Wharton, and Garrison. He worked there for nearly a decade and is a former federal prosecutor. Ankur Khodori, welcome to On Point. Thanks for having me. So in your article, you write that you are not surprised at all that so many of these firms once hit with the executive orders, or actually even before they're hit with the EOs, are fraudsters.

folding to President Trump. Why are you not surprised? Well, these are large companies. They're for-profit enterprises and they exist to make money, ideally a lot of it. And the vast majority of their work is skewed toward wealthy sort of entrenched interests, large corporations, wealthy individuals. I think the right sort of the

easily accessible way to think about this is to think about, um, these law firms as somewhat similar to large banks and finance and the financial services industry. Um, you know, if something like this had happened at city bank or JP Morgan, um,

I don't think we would have people kind of scratching their heads and wondering why they let us down. Yeah. So, I mean, I mean, I have to be honest, I want to put everything very bluntly in this hour and you are free to correct me if I'm wrong. What you're saying is that what people presumed about big law firms is true, that they're essentially morally bankrupt and that once threatened by the president of the United States, they're willing to put firm over a country or even firm over a constitution. Right.

Yeah, no, I mean, that's correct. I don't know if I would go so far as to call it morally bankrupt. I mean, I have some skin in the game since I worked there. But, you know, they do serve a real purpose in our economy and society, maybe in a different sort of social or economic architecture. We wouldn't have these large law firms, but no, they exist. They're for profit enterprises. They exist to make money. The partners want to make money. They ideally want to make a ton of money. So, yeah.

I don't regard any of this as particularly surprising. These places are not paragons of virtue or sacrifice or civility or anything like that. I wasn't under any illusions about it when I experienced it.

And you're making a bargain. As a young lawyer, I mean, you're paid a lot of money to set any of those concerns you might have to the side. And the bargain is very, very transparent. And I respect, you know, people like Thomas Sipp, who have sort of reconsidered their choices and are speaking about them. But, you know,

I don't think he should have been surprised. I mean, I'm presuming that the partners, at least in these firms, are pretty smart legal people. And do they not know that they are helping pave the way to a total authoritarian state? I mean, I'm sure they know the consequences, but they know their bank accounts even better. Well, Ankush, hang on for just a second. When we come back, I want to actually dig in with detail into the actual executive orders and get your thoughts on those. So we'll be back. This is On Point. On Point.

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Follow wherever you get your podcasts and stick around until the end of this podcast for a preview of the episode. Knowing what you know from working inside of Paul Weiss, the head of that firm specifically said, and you mentioned this in your article, that this giant firm was going to potentially go out of business if they did not strike a deal with Trump.

Are they really that dependent on the federal government for clients that their mere existence was threatened by one executive order? I do not believe that claim. The claim came from Brad Karp, the head of the firm, in a firm-wide email that was given to a legal writer initially who just did not examine it with any sort of skepticism. I mean, look, what was actually going to happen at Paul Weiss, and some of this has been reported, is that a group

Group of corporate partners who manage transactional work, some of whom are relatively recent arrivals at the firm, were thinking about leaving. They wanted to cave in response to executive order pretty quickly, is my understanding. They're thinking about leaving, taking a lot of business with them, probably most of the firm's business at this point, because it's heavily skewed toward corporate rather than litigation work, which is not...

which is not the way it used to be like 10, 15 years ago. Well, what would have happened in that scenario is that then you would have had the litigation partners and whoever was left from the corporate side just working at a smaller and less profitable firm. The notion that the firm would have collapsed or gone out of business is absurd. It assumes that the partners can live on less than six and a half million dollars a year, which is their average profit per equity partner. Brad Karp makes tens of millions of dollars a year.

So nobody should take him seriously. Okay. Well, and yet they cut this deal. I mean, it's... You know what? I...

I respect the top minds in the legal profession. I do not personally shed a tear for them in this decision. My deeper concern is the rule of law in this country in general and the protection of what the words of the Constitution are meant to imply for how this country works.

So Ankush, hang on for just a second. I want to bring Stephen Gillers into the conversation. He's a professor of legal ethics, a professor emeritus of legal ethics at the New York University School of Law. Professor Gillers, welcome to you.

Thank you. So what I'd like to do with both of you right now is actually just dissect some of these executive orders in detail and understand not only what they're saying on the page, but what the implications are for, as I said earlier, the rule of law. So in honor of Ankush's former firm, Paul Weiss, I have the EO here, March 14th, 2025. And these are the first lines.

By the authority vested in me as president by the Constitution and the laws of the United States of America, it is hereby ordered. Section 1. Background. Global law firms have for years played an outsized role in undermining the judicial process and in the destruction of bedrock American principles. Professor Giller?

How do you analyze that? That's absolutely false. And everything in that executive order is false. The authority to issue it doesn't exist. So I would not look to the language of what Trump said as reflecting the views of the targets of the executive orders.

But, Professor, I mean, if everything is false and the executive orders are essentially then illegal, but the firms are capitulating to something that...

I don't know. Arguably, they could actually resist in court. They're choosing not to do that. Well, maybe they could and maybe they couldn't. We're going to find out about that because some firms have gone to court. But there is more than just the court. There are some things that cannot be brought to court. There are some ways of punishing a law firm that never have the fingerprints of the president on them. So, no, I don't...

I don't think the availability of the courts is a panacea for what these firms faced. Ankur, do you want to respond to that? Oh, no, I think that's quite right. And I share Professor Giller's assessment of the text of the executive order. It's quite disingenuous. We should not take it as a true reflection of their intentions. I think so far as I can tell from the pattern, they're going after firms that had mostly hired or

um, currently have, uh, among the partners, people who investigated and potentially prosecuted Trump or attempted to prosecute Trump. Um, so, um, I, I, I share the view that the, the language is sort of beside the point. And also, um, uh,

Professor Gillis is right. There are many other ways that the administration could hurt these firms that don't rise to the level of public visibility, including, for instance, you know, law firms that represent corporate clients. Frequently, in high-profile cases, we'll try to arrange meetings with regulators or prosecutors. The Justice Department kind of present their case, introduce some facts. Those meetings can just be turned down by the government. They're under no obligation to take them to begin with. But they can be very, very important to advocating for clients.

So respectfully to both of you, I disagree that the language doesn't matter because I think the language matters a lot to people who listen to the Trump administration, who watch what these who watch Fox News, etc. There is a vision of what law means in this country that is being trumpeted in these executive orders. For example, you know, again, in the in the Paul Weiss EO, the president says essentially that pro bono work.

As he says, quote, ostensibly for the public good deprives those who cannot otherwise afford the benefit of top legal talent. And my administration will no longer support taxpayer funds sponsoring them. He's

I mean, yes, I get that it's disingenuous because he's extracted now $100 million of pro bono work from each of the several funds. But on the other hand, the whole idea of this arm of what these big law firms are doing, simply because some of that pro bono work is for causes the president doesn't agree with, that's being normalized now through this executive order and through then the voices that advance that into the homes and the ears and eyes of the American people, Professor Gillers.

I think you're wrong if you think that the firms had an affirmative obligation to join the issue over the words that Trump chose to use in his executive order, to get up there and say, "Oh, no, we are not like that at all."

What they wanted to do and what they had a legitimate interest in doing is extricating themselves from the evil purposes of the Trump administration and protect their business and protect their clients. That does not include standing up and litigating the actual language of the

executive order. What it does include is negotiating whatever

obligations that the administration wanted them to take on and to ensure that those are soft enough to do consistent with their public position and their respect for the rule of law. These executive orders do not undermine the rule of law. I think that the idea that the firms had a larger obligation

to go to battle for the public, for the rest of us, has an overly romantic view of what they are. As Ancush said at the beginning, these are money institutions. They're not justice institutions. They do just things, but their primary obligation is to the clients and to the law firm, the courts that license them, and to their clients

lawyers and their staff. And that's what they honored in doing what they did. Tell me how it does not undermine the rule of law. You have to convince me here, Professor. Well, in whose mind? If it's in your mind, maybe I can't because maybe you don't see it. I mean, well, then help me out. But then help me see it. I'm asking you to explain.

Well, no, no. You have to tell me why you think it undermines the rule of law. The law is still there. The courts are still there. The judges are still there. There are 1.3 million American lawyers who are still there. Some of them are prepared to take on cases for...

indigent people, for people who have suffered discrimination. All of that is still there. There are lawyers and legal institutions and nonprofit law firms that are right now fighting for immigrants despite the Trump administration. That is in defense of the rule of law. They're doing that. These five firms that have settled, and there are five, these five firms that have settled on vague terms subject to

pretty expansive definitions. They have, by their settlement, not erased everything I just described, which constitutes the rule of law. And that's why the rule of law is still standing and indeed, I think, will get even stronger as a result of what Trump is trying to do.

Okay, I'm going to come back to that. But let me clarify. Do I think that the American legal system is so fragile that four or five executive orders can completely undermine it? No. But I definitely see a pattern. I consider this...

And a step towards, again, the calcifying of an authoritarian presidency. OK, well, what does that mean? That means that a president who operates above or beyond the rule of law, a president who is not touched.

And let me let me turn to a historian for for support in my argument here. In August of 2023, we had NYU professor Ruth Ben-Ghiat on the show. She's written a lot about authoritarianism in many countries over time.

And she discussed with us how she sees President Trump as applying what she calls the authoritarian playbook here in the United States. And during that hour, she described how within the legal system, she sees Trump as actively challenging some of the American legal system's checks and balances. So the reason they do this is that the purpose of authoritarianism is to allow the leader to commit crime with impunity so that they feel safe.

And so all of this, Trump 2025, the whole plan, which has been laid out with the help of the Heritage Foundation, when Trump's former head of the Office of Management and Budget says, quote, we're looking for pockets of independence in the government to seize them. That is what's called autocratic capture. That's what Tonal described that Erdogan already did.

So you must purge the civil service and institutions of any non-loyalists. And once you've done that, then you can commit as many crimes as you want and you're untouchable. Being untouchable is the dream of authoritarians like Trump.

Okay. She's talking about the civil service there, but I will expand that a step beyond and say because these executive orders, they're also threatening to take away the, let's say, the security clearances of some of these firms. They were threatening to bar them from even physically entering federal buildings, that it's all sort of part and part of the same strategy. Right.

Professor Giller, please feel free to disagree with me if you want, but I'd love to hear your response to that. Well, I do disagree, but I don't disagree that Trump's goal is to accumulate in one person as much political and economic power as the American legal system and the Constitution permits. That's his objective. There's no doubt about that.

But I do disagree that these five firms that have reached an accord with the Trump administration are, and I think this was your word before, paving the way toward a totally authoritarian state. I think that is apocalyptic and you cannot connect these five firms.

call them settlements, with the prospect of that happening. Three firms did not settle, five firms did settle. And I think there is a vast disconnect between what either set of firms did on the one hand and the paving the way to a totally authoritarian state or a claim of moral bankruptcy for what they did on the other hand.

Ankur, go ahead. I mean, yeah, I mean, I think I share the concern about how this might sort of affect how lawyers operate. But I just think it's worth sort of getting down to brass tacks here. Probably none of us who are in this discussion could even afford

to hire any of these law firms. They're at an average of, I think, $1,000 an hour billing rates now. Some of these partners bill up to $3,000 an hour. These are extremely wealthy people serving extremely wealthy interests. So if we're concerned about how this might impact their clients, we're really talking about Citibank, Google, Amazon. And maybe we are concerned about it. I'm not terribly concerned.

These are small parts of a very large industry. The vast majority of Americans do not have access to these firms for their legal needs. They would never be able to...

come close to paying for them. And I just like some of the claims that are in the executive order, you are right that they deserve scrutiny. But for instance, the executive order says that, you know, Paul Weiss has been engaged in some pro bono, whatever litigation against the administration. What is that litigation? It does not exist. They're not doing anything.

I believe they litigated on some of the family separation issues during the first administration, but they're not some prominent player in any of the litigation that's currently moving through the courts that we're all paying very close attention to. And the executive orders also cite DEI. This is absurd, as I'm sure Professor Gillers knows. The partnerships at these law firms are extremely skewed toward white men. 90% of the equity partners in this country, meaning the partners at these firms who share in the profits, are white.

So the idea that they were like making these great big changes on the DEI front, that's absurd too. What's happening is that Trump, the Trump administration and sort of true to form is just, you know, kind of tossing a lot of things at the wall,

Using terms that they know will draw some support draw some attention to sort of I think mask their real intentions Which is really quite petty Going after certain firms based on a small number of people that they hired it is corrupt. I agree and it's abuse of power But I share professor Geller's view I don't think like the average American needs to be concerned about this to be honest the the idea that

The firms are subject to criticism because the clients they represent are wealthy or because the lawyers at the firms earn millions of dollars a year. It's interesting, but it's a non-starter. It's got nothing to do with the essence of the debate. We should not be in a position of saying, "You should have stood up to Trump.

For whatever value that might have had, we can talk about what that might be, because you make $6 million a year and

You wish to avoid having your income halved. That is not why I'm saying they should have stood up to the president, just to be clear. I'm saying that perhaps they should have shown a little backbone and stood up to the president, the ones that settled, because there comes a time in every nation's history where we have to individually decide, does the values and principles upon which I believe this country is founded matter or does my pocketbook matter?

OK, so let's just trace that. So a firm stands up to Trump, a Jenner or a Wilmer, they go to court. Let's say they win and the executive orders are vacated entirely. Are we better off? Trump still has all the power. He could find other workarounds to attack those firms. Now he's even more angry at those firms.

There are things he could do that we never know about because no one's fingerprints are on it. It's all done quietly. Are we in a better position versus the firms that settled because they saw a way of minimizing what they were paying, what ransom they were paying? Professor, hang on for just a second. You used an interesting word. I want to hear more about it in a second. This is on point.

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Professor Gillers, I'm sorry I had to cut you off before the break there. But you said a word which I think really captures this moment in essence perfectly. You said the ransom, that the Trump administration is essentially holding these law firms at ransom. I think that's exactly right. It's like ransomware, right? Your whole life, your computer is taken over and you have either the choice of hiring someone to –

rid yourself to decon your life of ransomware or you just pay the ransomware guys off. I get it. Tons of people, hospitals, etc. They pay the ransomware guys off. And you know what happens? The ransomware spreads. They do it again and again and again. And politically, I would argue that's exactly what's going to happen now with the capitulation these firms are showing the Trump administration.

I think ransom is a good word. I used it. I think what Trump is saying to the firms, apropos what we know about organized crime, nice firm you have there, terrible if anything happened to it. And that's what's happening. And the firms have paid a ransom. They've decided, five firms have decided that the price is low enough to

so that they're willing to do it. Now, that may change. You may be right. Trump may come back and say, "You know, I didn't ask for enough last time. Here's my new demand."

You have to pick your spots. Right now, the firm's made decisions against a set of facts and a set of threats. It could come to pass for me, for others, that the Trump machinery is so oppressive that we can say that this compromises the rule of law and that

It is wrong for a firm like Paul Wise or a firm like Skadden not to stand up against it. Wrong for anyone not to stand up against it.

What I have trouble with is extrapolating from the current situation and deciding what the worst can be and what we would expect if the worst happened. When that happens, when it gets worse, we'll deal with it at the time. At the moment, I think the firm's made a rather clever decision.

agreements using vague terms regarding what they promised in exchange for what they're getting. Yeah. No, I take your point. And perhaps maybe, by the way, I'm loving the vigor of this conversation. And I think part of it is because we're coming at this from different perspectives. I mean, I completely understand how as lawyers, you're looking at this from like, what are the facts of the case right now? Let's argue around those facts right now.

As a journalist, I mean, I think I'm tasked with looking at, like, what does history say? What are the current politics of the situation? What are the potential implications? That's our job. My job is to explore that. So with that in mind, Ankur, let me turn back to you on something.

You know, we have been discussing implications thus far in terms of the cost to the law firms, even dollar cost to the law firms. I would like to dare to push this conversation into the realm of the moral cost to the country. How about even the cost to the belief or the sanctity of the office of the presidency of the United States? Because when a president so overtly

And so gleefully, in an executive order, an instrument of great power says, well, we're going after you simply because of somebody you hired. I'm reading the Paul Weiss EO again. He says in 2022, Paul Weiss, quote, hired unethical attorney Mark Pomerantz, who had previously left Paul Weiss to join the Manhattan District Attorney's Office. And here's the money, quote, solely to manufacture a prosecution against men.

Me being Donald Trump. I mean, there is something I would say in that that does weaken the idea that a president of the United States doesn't use his office for personal political retribution.

Oh, I think worse than that. I'm sorry. Go ahead, Ann Cush. I was just going to say, I think you're completely correct. It is an abuse of power for precisely the reasons you identified. I actually do have a question, though, that I an earnest question for Professor Gillers that I've been batting around in my head. I think the structure of these deals violates federal criminal law on extortion.

Now, nobody's ever going to get prosecuted because it's Trump and he runs the Justice Department. But this is a sincere question, Professor Gillers. How does that influence kind of your assessment of the cleverness of the deals and like the propriety of them?

Well, I'm not an expert on federal criminal law, so I don't know if your perception is fair, but I don't think it changes my view about the behavior of the law firms in trying to rid themselves of the specter of these executive orders. I don't think they are

by doing that, encouraging victimization of themselves in violation of the federal criminal law. Oh, no, I'm not talking about incentive. I'm just saying lawyers should not break the law. And I don't think that the settlement agreements, again, subject to an expert on federal criminal law, but I don't think that the settlement agreements themselves warrant a conclusion that the law firms that enter them

are guilty of breaking the federal criminal law. Is a victim of an extortion attempt, he's $1,000, so his store windows are not broken. Is he guilty of a crime? Yes, conspiring to engage in extortion if they instigate the deal, if it's their idea. No, no, they don't. No, they don't instigate the deal. The reporting on Paul Weiss was that Brad Karp instigated the deal.

So what you're saying, and I'm not an expert in this area, is that if Brad Karp instigated the deal by seeking a meeting with Trump in which he and Trump could come to an agreement,

that he thereby is committing a felony under federal law. Very possibly. I mean, Ankush, can I just say, maybe you're about to do this because you, I mean, I was going to say as a former federal prosecutor yourself, how would you answer your own question? Yeah, yeah, yeah. No, I mean, sincerely, I leak to some of this in my work. The Justice Department has a public prosecutor

page on the application of the Hobbs Act, which has a provision on extortion by public officials, including extortion under official right, meaning under the authority of the office. And that public web page, I just checked it a few days ago, contains two highly salient observations about the state of the law. First, that it's extortion even if the money goes to a

person who like sort of comes up with the scheme, even if it's the quote unquote victim and they propose it to the, you know, bad actor. Yes, they can be charged with conspiring to engage in extortion or bribery, depending on how you look at the facts. Now, I'm not offering a definitive conclusion on that because any kind of criminal case, you need to know much more about the law and the facts. But like...

I actually think just like based on my own knowledge, based on what the Justice Department has put out in the world on this subject, there is a colorable case that the people who engage in these deals violate federal law. Nobody is going to prosecute that. But I think if we're talking about kind of the propriety of these deals and the rule of law, like that to me is the more striking thing. And if you look at a firm like Paul Weiss, they have a former attorney general among their partners, Loretta Lynch.

The last confirmed U.S. attorney in Manhattan, Damian Williams, works there. These people definitely know these things. And there are plenty of former federal prosecutors at all of these firms. So that is why I said I don't want to offer it definitively. It was an earnest question for Professor Gillers that I was sincerely interested in. And I am interested in his analysis. That, to me, is something that I find quite striking about all this and problematic, more so than anything.

The effects that we may think are more society-wide, which I share the professor's views, are limited right now. And if they spread, we should address them when they spread. So can you just clarify for we non-legal folks about why you think that what you just said is potentially the more problematic aspect? Sure.

Well, just because I think lawyers should not break the law. Yeah. Pretty simple. I mean, I know it's not to be flip about it, but what happened was, you know, Brad White, Carp, according to the reporting, came up with this idea of getting out from under the executive order by paying the president a bunch of money to a third party. And what did he get in exchange for that?

He got the lifting of the restriction on the executive order, including being able to attend, you know, go to federal buildings. And the lawyers who had security clearances revoked got them back. Those are official acts. Yeah. Undoubtedly under federal public corruption law, at least the issuing of the security clearances, the revocation and giving of them back. So what happened? Brad Carr paid money for the president to engage in official acts to benefit him.

You know, I really appreciate you bringing this analysis because obviously I couldn't have. And it makes me wonder the following in that it's

What you're describing here is no one at the just—the only people that would potentially put a stop to a deal like this would be in the Justice Department. Not going to happen in the Trump administration, as you just said. But therefore, the DOJ isn't going to stop lawyers from breaking the law. Lawyers potentially have broken the law here, as you're saying, in terms of federal extortion law. I mean, to me, again, maybe it's a broken record on this. It's not—that doesn't signify the collapse of the rule of law in this country, but it does signify another—

sort of removal of one of the buttresses to it. Yeah, I mean, look, I just say on the sort of the recourse front, because you're right, DOJ won't do anything. Manhattan DA's office could look at it. Ethical authorities could look at it, too. And I think they should. Professor Gillers, go ahead. Yeah. Yeah. In fairness, we should say that Paul Weiss or Brad Karp took a vote of the partnership before this was agreed to.

And that would include Loretta Lynch, and that would include Damian Williams, and that would include other partners who were former AUSAs.

And one would expect in putting forth this, quote, settlement, that if there were a serious problem or even the illusion of a problem, that they would have spoken up. Professor Gillers, can I circle back to one thing that you said earlier, that when I was reading the executive order... Sorry, how do we know they didn't? We don't. Yeah, I was just going to say. We don't know they didn't, but...

But the idea that Loretta Lynch or Damian Williams or anyone else said, this is a violation of the Hobbes Act if you reach this agreement, and that Brad Karp, notwithstanding that advice from people who understand these things, would nonetheless go ahead and do it, is very hard for me to accept. I don't know. I know, Brad. It's not hard for me to accept at all. Interesting.

I'm going to just leave that there with that comment for now. I want to turn back to one thing, Professor, that you said when I was reading, you know, the executive orders language on like we're just going after you, Paul Weiss. And also the same thing with the Wilmer Hale EO for hiring people that we don't like. You said it. I said, doesn't that at least doesn't that compromise the moral authority, the office of the presidency? And Professor Gillers, I heard you say quickly, it's worse than that.

I don't remember the sequence, but I think in terms of moral authority of the office of the president, that is gone and will be gone for the next four years. So no one is under an illusion that anything Trump does bespeaks an effort to assert the moral authority of the presidency. Yes, it's been compromised, but it was compromised initially.

Almost two months ago, and that will continue for months and years to come. Yeah, I totally share Professor Giller's assessment of that situation. And again, just to make this a little bit more concrete, this would be a different discussion if he were going after the ACLU, right? Or if he were going after Democracy Forward, which are the organizations that are actually in the courts litigating against him, not Paul Weiss.

because that would be a more direct affront to the principle that you are rightly concerned about, which is intimidating firms from litigating against the administration. But I think it's kind of telling that the White House hasn't gone there yet. And it sort of reveals their real intentions. And

perversely, I'm not saying that we should applaud them, perversely does minimize some of the collateral effects. But you know how the Overton window gets shifted, right? It's not like we pull it out, move it from center all the way to far right immediately or far left. It's nudged. It's nudged. I mean, I'm thinking from the...

Back in 2017, when Trump first came into office in his first administration, the first thing he did was sign that executive order on the so-called Muslim ban. It was rejected in the courts over and over again. But they kept rewriting it until they got something that was deemed as legal in the federal judiciary. I'm using that as an example of why can't we see this first attack on white shoe law firms as that initial nudge? What's to say that they won't go after the ACLU next?

Well, we can say that there are two different issues here. Is what Trump is doing with those executive orders reprehensible? Is it the functional equivalent of extortion? Yes, yes, yes. The second issue is, do we criticize the firms that have settled rather than sued?

right now, given what was at stake right now, given the risks to them right now? And my answer is, it's not for me, certainly, I feel, to criticize them. I don't expect them to be my gladiator. I understood always that their first primary, their primary responsibility is to their organization. Okay, understood. But let me ask you this. This is a quote I'm about to read that comes from

The Cato Institute of all places. This is Walter Olson. He was quoted by CBS News. He says these orders do more than just take revenge against particular lawyers who have crossed Donald Trump. Quote, they are meant to send a message that it is dangerous to oppose him in court, that you are apt to suffer not just yourself, but also firms you're associated with, and they'll suffer sweeping penalties, et cetera, et cetera. I mean, that is a danger. Do you disagree with that, Professor Gillers?

- Not at all. I mean, I've written about this. Yes, this is, all you gotta do is knock off one or two or three and everybody understands that they better shut up.

If we're focusing on the behavior of Trump, we would not be having this debate. We're having this debate because some people are alarmed to the point of view of apocalyptic predictions at the fact that five law firms have settled on the rather vague terms they did. That's what this is about. No, that is not what this is about, sir. I'm just respectfully going to correct you. It is about the direction in which

Trumpism is taking this country. And I and we wanted to talk about how these actions against these, you know, these law firms, which, again, I don't cry for them, but how these actions fit into that larger picture, if they do at all. Just wanted to clarify that.

Yeah, sure. We have about 30 seconds. Go ahead. Oh, yeah. Yeah. No, I mean, this definitely is a piece of the architecture that you're describing. Right. That the president is using this second term to target and abuse his authority in particular ways for personal reasons. It is definitely part of that is definitely a part of a pattern that we should oppose. Right.

And it is bad and we should criticize it while trying to just sort of do our best to maintain some perspective, which is what I and the professor are attempting to do. Yeah. And it's much appreciated. Honestly, the intellectual vigor of this conversation was quite thrilling. So Ankush Keduri and Professor Stephen Gillers, thank you both so very much. I'm Meghna Chakrabarty. This is On Point. On Point.

Support for this podcast comes from Is Business Broken? A podcast from BU Questrom School of Business. When the same big investors buy stakes in multiple competing companies, are those firms still competitors? That phenomenon is known as common ownership. And a recent episode of Is Business Broken? dives into how common ownership affects prices, innovation and more. Here's a preview of that episode.

You've uncovered a number of interesting effects in companies and industries that have common owners, how it can affect competition, prices of products in the market, innovation, executive compensation, managerial incentives. What have you seen that happens when this power is consolidated like this?

Yeah, I think it's a fascinating question. Of course, I think it's a fascinating question because much of my work in the last couple of years has been in this space. But just to clearly state the hypothesis of common ownership again, it's a situation really where you have these common owners that hold large stakes in companies that are competing against each other.

But now, because the companies are held by these common investors and common owners, perhaps they have less of an incentive to engage in such intense competition with each other. Now, that has positive effects for the profits. And that's something that the investors actually quite like. And that benefits all.

potentially all of us who are invested in these companies, but that has potentially negative effects for consumers of the products that these companies make. So just as an example here, if you represent a lot of shareholders in Coca-Cola and Pepsi-Cola, then you basically aren't going to pressure one of them to lower their prices and really go after the market share of the other.

because you get more profits in one company, you get less in the other, and it's all kind of a wash. You would rather see both companies keep their prices higher and make more money across the market because you own that market. Exactly. It's a very, very simple logic. And when I talk to people about common ownership,

that are not in economics, they immediately say, "Yeah, but isn't that totally obvious that this is something that would happen?" And I said, "Well, you know, it's something that is obvious once I've explained it to you." And this wasn't a situation that was so predominant 40 years ago, but it is very much a dominant paradigm right now.

Find the full episode by searching for Is Business Broken wherever you get your podcasts and learn more about the Mehrotra Institute for Business, Markets and Society at ibms.bu.edu.