Nope. Not gonna do it. No more Dick the Butcher quotes. It’s played. You already know it. Not going to do it again. Plus, the likelihood that Trump read Shakespeare seems slim, although it increases exponentially when you consider the folks at the Heritage Foundation, who are likely far better educated. But the quote sure does apply.
The evident goal is to spread anxiety and fear among judges and keep them from fulfilling their constitutional duty to insist that the Trump administration follow the law. The campaign extends to private-sector lawyers, with Mr. Trump trying to damage the business of several firms he does not like.
There are now two ways to try to win in court. One is to use facts or law to win on the merits. The other is to use threats of murdering a judge’s child if they rule against the regime. Whether it’s the delivery of a pizza to let judge’s know that “we know where you live,” or to spew the sort of infantile idiocy that plays to the unduly passionate on social media to make sure “so-called” “radical left lunatic” judges know there’s a target on their backs, the judiciary has thus far held firm to their oath. To their credit, judges have not capitulated, as far as I know.
Then there are the three biglaw firms named in Trump’s proclamations as enemies of the state, only one of which has capitulated to beg for Trump’s mercy. But will it stop there? No. Oh no, no, no.
President Trump broadened his campaign of retaliation against lawyers he dislikes with a new memorandum that threatens to use government power to punish any law firms that, in his view, unfairly challenge his administration.
The memorandum directs the heads of the Justice and Homeland Security Departments to “seek sanctions against attorneys and law firms who engage in frivolous, unreasonable and vexatious litigation against the United States” or in matters that come before federal agencies.
There are rules against bringing frivolous claims and arguments before a court, and it’s enforcement is put in the hands of judges. But the judiciary hasn’t been kind to Trump, unlike the attorney general who believes her role is to serve his personal whims and desires. So rather than rely on the judiciary to enforce the rules against frivolous litigation, Trump has decided to put in the hands of Pam Bondi to take retribution against lawyers who displease her master.
Unfortunately, far too many attorneys and law firms have long ignored these requirements when litigating against the Federal Government or in pursuing baseless partisan attacks. To address these concerns, I hereby direct the Attorney General to seek sanctions against attorneys and law firms who engage in frivolous, unreasonable, and vexatious litigation against the United States or in matters before executive departments and agencies of the United States.
I further direct the Attorney General and the Secretary of Homeland Security to prioritize enforcement of their respective regulations governing attorney conduct and discipline. See, e.g., 8 C.F.R. 292.1 et seq.; 8 C.F.R. 1003.101 et seq.; 8 C.F.R. 1292.19.
While denying security clearances and government contracts to lawyers whom the Attorney General deems “frivolous, unreasonable, and vexatious” might not impact a great many lawyers, being targeted for discipline is another matter, and it’s not limited to biglaw firms or even civil suits. Will defending against government prosecutions bring sanctions if Bondi says so? There’s nothing in Trump’s memo to suggest they won’t, and everything to suggest that any lawyer who annoys either Trump or Bondi will be asking for a target to be put on their back.
That the government may seek sanctions against lawyers for being too effective in challenging the government does not mean they will be imposed, at least under the current disciplinary scheme. It’s not up to Bondi to impose discipline outside of the few areas where Trump has control, such as security clearances and government contracts. Yet.
But it does mean that the lawyers against whom sanctions are sought will be compelled to defend themselves against attack before the disciplinary authorities. It’s also possible, if not likely, that Bondi, following in the footsteps of our very petty prez, will make their identities public so that the unduly passionate will send them pizzas, if not worse.
“Our liberties depend on lawyers’ willingness to represent unpopular people and causes, including in matters adverse to the federal government,” the firm said in a statement. “Our profession owes every client zealous legal representation without fear of retribution, regardless of their political affiliation or ability to pay.”
In the past, we took this for granted, as it was what we do and why we go to work in the morning. We always did so at the risk of public castigation, given that we stood next to some of the most despised people in the nation. Now we do so at the risk of pissing off Trump and his lapdog. Will we still be up to the task given this new threat to our zealous representation? I hope so. And when you need a lawyer because of what the government did to you, I hope there will still be lawyers willing to zealously represent you without fear that Bondi will target you for sanctions.
So, as far as court litigation, it forecasts they may file for Rule 11 sanctions, but the motions will be determined by judges.
What happens before the agencies is an open question. A cynical person might hold the view that the purpose of special agency standards for “lawyers practicing before” the agencies was always to chill zealous advocacy, if not to positively conscript the lawyers to serve as agency “gatekeepers.” It should perhaps not come as a surprise if an abusive practice leads to abuse.
Per Lat, Karp wrote to his Paul Weiss colleagues that it would have been different had the entire legal profession rose up in support the firm rather than exploit their vulnerabilities. Did he rise up for Covington or Perkins Coie? I suspect he fails to see the irony of his rationalization.
Since nobody else did, it’s left to me.