Trump’s Assault on the Media and Law Firms, and How We Should React

R.I.P. Max Frankel

When I first sat down to write this column, I intended it to be about the meeting MLRC and FIRE hosted with other First Amendment non-profits about what steps we could take to help resist this Administration’s offensive against journalists and the media. However, in the intervening two weeks, Trump has embarked on an attack as, if not more, threatening to our democracy – an assault on law firms he feels have opposed him, a threat to our very system of justice.

It’s hard to imagine anything this White House does could be more unfounded and dangerous  than his lying rhetoric about “enemy of the people” and fake news, his baseless litigations against major media institutions, from CBS to the Pulitzer committee, his pulling White House access from  the venerable AP because it won’t use the wording he demands, and the self-defeating defunding of the Voice of America and others to come, but his recent actions against law firms such as Perkins Coie, Paul Weiss, Jenner & Block and WilmerHale for nonsensical retribution-laden reasons are just as dangerous.

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But first things first. When we gathered with about ten other organization to consider steps we might take to help resistance to Trump’s actions against journalists, there was a lot of thoughtful discussion but only a few concrete steps we might take. The most overwhelming theme is that we should share information, avoid divide and conquer scenarios, and act in a more cohesive and unified way. And the “we” referred to not only the non-profits in that discussion, but also to the media entities generally who are the targets of the White House’s vengeance and the law firms which have long supported First Amendment principles. We realized that the group’s views would not affect a big company’s decision on whether or not to settle a case, but we concluded that more precise and uniform messaging would improve our position both as to our adversaries and as to public opinion.

We also concluded that it was imperative to do all we could to encourage lawyers to volunteer for pro bono and low bono work on matters where the Administration was trying to harm or shut up the media and/or weaken First Amendment rights and protections. We recognized that this was a touchy subject for lawyers in law firms whose bottom line always is important, and so we determined to limit this effort to only matters where it’s the Government who is doing the attacking, not, for example, a libel case between an individual defamation plaintiff and a newspaper. But where the Government was taking legal action against a media entity, whether to restrain, dictate or otherwise regulate or punish it for its content, limit its capability to gather the news or obtain documents or access the law entitles it to have, or other such matters, we hope that lawyers will take into account how important defending the media from these onslaughts is, and how it serves all of us if these defendants, particularly small ones who can’t afford the best lawyers, get topnotch legal help.

So beyond just making this plea, MLRC and the other organizations will do what they can to identify cases where legal help is needed and try to match those matters with lawyers who might be willing to work on them at no or little cost. To that end, I would suggest that, among our members, if you are willing to do so, send me an email saying that if such a case comes up in your jurisdiction, you would be willing to work on it at no or low cost. Obviously, that is not close to binding, and we all realize that actual representation will depend on a host of factors, but if we have such a list to start out with, we will be in better shape when and if such a matter suddenly arises.

There also was discussion of how the Government’s initiatives in its first two months have needed legal expertise in areas other than media law. For example, while the actions against Columbia student Mahmoud Khalil entail First Amendment defenses, they will hinge in large part on immigration law. Likewise, it is not hard to see that sooner or later, tax and regulatory law experts will be needed to defend media entities from retribution efforts by Trump in those areas. So, again, if before the emergency strikes, if you could amass such off-lane experts to be ready to lend their help, that would be very advantageous as well.

Our group will meet again, and I’m sure I will have added information and requests to make as we make every effort to survive the next four years, But as lawyers for the media industry, we should be well aware that, in the word of the day, we are in a battle for our existential survival, and that our proud continuation of our close to 250-year democracy is at stake. So whatever slight diminution to our bottom lines and whatever small risks we take, they are well worth the preservation of our rights of free speech and a press independent of Government regardless of the self-serving lies – the New York Times called it Trump’s Machinery of Misinformation –  which come out of Washington.

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In the two weeks since our meeting, the Administration has begun an equally nefarious attack which also would serve to weaken another set of constitutional rights, executive orders against law firms with the aim to either putting them out of business or sharply limiting their ability to be effective lawyers giving clients full-bodied representation – particularly against Trump’s Government.

The perceived rationale for this initiative is as inane as it is illegitimate. Trump wants to punish Perkins Coie for its representation of Hilary Clinton in 2016; only in very few third-world countries can we even imagine a victorious presidential candidate would do that to the lawyers of his losing opponent. In the other cases Trump seeks retribution from firms who once housed lawyers who investigated him as part of their prosecutorial jobs – but those lawyers  are long since gone from the firms whom he now attacks. ( I should note that the former Paul Weiss lawyer, Mark Pomerantz  is a founding partner in the Free and Fair Litigation Group, a pro bono firm which subleases office space from the MLRC.) So even were there a constitutional basis for such attacks on law firms, these are totally misplaced, as the targets of Trump’s petty retribution are no longer at those firms.

Beyond the factual frailty of the White House’s moves, I have a hard time believing they could be legal. They appear to not only violate the First Amendment, but also to contravene basic due process rights and the Sixth Amendment right to counsel as well. It simply can’t be that a President can disqualify lawyers who seek to oppose him, or else we really are heading to an autocracy many have feared.

The Executive Orders cover enough ground so that were they to be upheld, it would be difficult for these firms to practice law. They wouldn’t be allowed to enter federal buildings – unclear if that would include courthouses – or get security clearances – ironic given last week’s major security leak – which could limit them from a wide variety of cases. And government contractors would be prohibited from using them. Worse, they would not be allowed the DEI initiatives the firms, private entities, after all, had decided to implement. And Paul Weiss, which settled, agreed to work on $40 million of pro bono cases for clients sought by the White House, conflicting with the basic principle that a firm is free to pick its own clients. (The Times recently reported that within a day or two of the Executive Order, rivals of Paul Weiss already tried to poach both lawyers and clients from the firm. This was denied by the firms, but any move along those lines is shameful and certainly directly contradicts the let’s stand in unity prescription above.) As a visiting professor of law at Princeton wrote in the Times opinion section this weekend, “the point is for Big Law to do something – anything – as a group to demonstrate that they will continue to place their obligations to their clients and to the law above their fear of the bully. Solidarity can prove that point.”

But those substantive points are not the crux of the matter. The danger is that by agreeing to such terms, a firm is enabling the Administration to continue seeking these agreements from yet other firms which might well fall into line. Indeed, remarkably, Skadden agreed on bent knee to even more expensive terms than Paul Weiss even without an Executive Order being issued against it.

I would think we all have a responsibility to the legal system not to let that happen, not to let Government, which at most is on only one side of the v, control the advocates who work on both sides. It’s hard to see, other than perhaps security clearances, how Government has this sort of power over private entities, but it is especially problematic when the only justification for all these actions is pure unadulterated retribution – against lawyers (and currently unconnected law firms) who represented an (opposing) presidential candidates or did their jobs as prosecutors in totally viable cases.

As you probably know, Perkins Coie was first to go to court to block the Order. Judge Beryl Howell, from the bench, said the Government’s action “sends little chills down my spine.” She granted the key provisions of its motion, noting that the “retaliatory animus” is “clear on its facts”, and writing that “I am sure many in the legal profession are watching in horror at what Perkins Coie is going through here… The order casts a chilling harm of blizzard proportions across the legal profession.”

Member Williams & Connolly deserves congratulations not only for this initial victory, but also for stepping up to take the case. And we applaud member Munger Tolles & Olson for volunteering to do an amicus brief in support of Perkins Coie; I wrote an email blast to our big and mid-size firms a few days ago explaining how they can get more information about the amicus brief and wish to sign on to it.

Since then, both (my former firm) Jenner & Block and WilmerHale filed complaints seeking to bar implementation of the EOs. Like Perkins Coie, both have been successful. In the Jenner case the DC federal judge described the Executive Order as “troubling” and “disturbing”, saying the Government failed to provide substantive answers as to how firm employees threatened national security. The judge also noted that Jenner was being targeted on the basis of its “protected free speech rights.” In the Wilmer case another DC federal judge, as in the Jenner case also appointed by Pres. George W. Bush, wrote the EO was a “retaliatory action based on perceived viewpoint” of Wilmer employees. He wrote,”there is no doubt that this retaliatory action chills speech and legal advocacy or that it qualifies as a constitutional harm.”

I am pleased to note that both Jenner and Wilmer are MLRC member firms; Paul Weiss and Skadden are not. In any event, a recent ABA statement gives a better explanation of  how lawyers like us might react better than I ever could :

We reject efforts to undermine the courts and the profession. We will not stay silent in the face of efforts to remake the legal profession into something that rewards those who agree with the government and punishes those who do not. Words and actions matter. And the intimidating words and actions we have heard must end. They are designed to cow our country’s judges, our country’s courts and our legal profession. Consistent with the chief justice’s report, these efforts cannot be sanctioned or normalized.

There are clear choices facing our profession. We can choose to remain silent and allow these acts to continue or we can stand for the rule of law and the values we hold dear. We call upon the entire profession, including lawyers who serve in elected positions, to speak out against intimidation. We acknowledge that there are risks to standing up and addressing these important issues. But if the ABA and lawyers do not speak, who will speak for the organized bar? Who will speak for the judiciary? Who will protect our system of justice? If we don’t speak now, when will we speak?

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I was very saddened to learn last week of the passing of former New York Times Executive Editor Max Frankel. I worked at the Times for over 30 years during which I served as the lawyer for six executive editors. Max was my favorite, and also, in my view, was the best. He was brilliant, sensitive, convivial, with lots of positive energy. He escaped Germany just before the Holocaust, and came to New York without knowing a word of English.

Many of his heroics as a journalist came before I knew him, indeed, before he became the paper’s top editor. He was at his desk as a very young reporter late one night in 1956 when the Andrea Doria and the Stockholm crashed in the fog off the coast of Nantucket. His superb work and writing that night made him noticed throughout the newsroom.

In 1971 he was Washington Bureau Chief, and argued passionately in favor of the Times’ running the Pentagon Papers series. Aghast that some of the lawyers were worried about publishing leaked documents, he wrote a memo outlining how Washington runs on leaks, how different government departments leak materials to the press for all sorts of reasons. The memo was turned into an affidavit in the case – one that I made assigned reading in the many First Amendment courses I taught. And in 1973 he won a Pulitzer Prize for his reporting on Nixon’s famous trip to China, writing about both the diplomatic niceties and lives and culture of the Chinese citizens he ran into.

Notwithstanding his brilliance as a reporter and editor, it’s interesting that he was promoted to the top spot in the newsroom more because of his avuncular style. Abe Rosenthal famously had been the Times ‘ Executive Editor throughout the 70’s and early 80’s. As clever and highly-respected a journalist he was, his leadership style ranged from dictatorial to favoritism of a small group of allies. The newsroom lived in fear of getting on his wrong side, and morale was at an all-time low. Ultimately Publisher Punch Sulzberger had enough, appointed Max top editor, with instructions to make the newsroom a “happy place.”

My most memorable time with Max was when I defended his deposition in two cases. Putting aside that he was so smart I had no worries as to a wrong step, I have never seen someone answer deposition questions so eloquently. The answers rolled off his tongue in perfectly organized and developed paragraphs, in a fashion I have seen from no other deponent. And this from someone who didn’t know English as a child.

I also remember a meeting where Max’s program that the newsroom become more diverse required that the news desks were required to hire one minority for each two new hires they made. This quota system was pretty clearly against the law -imagine how the current Administration would treat it – but Max was steadfast in believing that it was the only way we could truly have affirmative action. We somehow brokered an acceptable and vague compromise. Finally, I recall that the reporting staff included a person with epilepsy, and one day he fainted with a seizure. No one knew what to do, but immediately there was Max, hands and knees on the floor successfully resuscitating the reporter.

The six Executive Editors I worked for included the aforementioned Abe Rosenthal; Bill Keller, who was a superb editor and beautiful writer who was more of my generation and with whom I lived through the Judy Miller saga; Jill Abramson, also awfully smart who was the first woman to hold the post; the charismatic and creative Howell Raines who led the paper through its 9/11 coverage in his very first days on the job, but then was victimized by the Jayson Blair disaster (and unlike most of the others was interested in sports coverage, to me the good news, but his interest as a Southerner was keyed on the Masters and college football, the bad news); and the quiet intellectual Joe Lelyveld. A formidable group of remarkable journalists, all of whom I revered working with, but in my view Max Frankel was the best.

George Freeman is executive director of MLRC. The views expressed in this column are his and not those of the organization. Feedback is welcome — email gfreeman@medialaw.org.