To “Defend Democracy,” We Must Defend… Wall Street Law Firms?

Perhaps you nodded in solidarity as protests began around the country following the mass firings of federal workers, some 30% of whom are veterans. And you may have felt strong sympathy with students protesting the plight of classmates at multiple universities targeted for deportation by immigration authorities.

But you’d be forgiven for scratching your head at what has somehow become one of the most apotheosized Trump targets getting held up as the preeminent casualty in democracy’s latest demise: Wall Street law firms.

In an age where almost 40% of Americans do not have $400 to their name, nearly 1 in 5 children in the United States do not have enough food to eat, and the top 10% of Americans own 88% of the stock market, there’s no shortage of places to look and see the failings of the rule of law. The ongoing spat between the Trump Administration and billion dollar firms however, is a most curious one.

Law firms who describe their clients as “investment grade and high-yield borrowers, private equity firms and their portfolio companies,” and who boast of nearly nine-and-a-quarter-million dollars of profit per equity partner, have been among the targets of headline-grabbing executive orders.

The text of the executive orders targeting the richest law firms on earth share several characteristics. After long, aggrandizing recitals that take swings at lawfare fixtures and firm affiliates like Mark Pomerantz and Fusion GPS, the lawfare pendulum swings the other way, as Trump levies punitive measures: rescinding security clearances, restricting access to federal buildings, and terminating “government contracts.”

Restricting access to federal courthouses is an obvious attack on access to the courts that is being rightfully challenged.

Top secret security clearances, however, are another matter. No person has a right to one. But why do lawyers representing Citigroup in stockholder derivative lawsuits even have them in the first place? Because in Washington, security clearances are a ticket through the revolving door — necessary for most high level government positions. If you were in charge of procuring sensitive contracts from defense conglomerates under one party, and are now in a cush, seven figure big law interregnum helping them dodge regulators — the security clearance is your ticket to the dance.

The most damaging impact of the executive orders however, is the stigma they carry. Big law firms depend on significant transactional work to maintain their revenue model. Many of these transactions are subject to government review. If you are a large corporation that wants to keep swallowing up competitors to maintain your prescription drug monopoly, and you know your law firm is on the outs with the administration, you have every incentive to work with counsel that does not have an adversarial relationship with Washington.

Lawyers at large firms that pay their entry level attorneys $225,000 salaries, have seethed into the digital ether, as their transactional employers have cut transactional deals with the Administration, primarily involving committing to do pro bono work for certain causes and making changes to hiring programs, along with other measures.

As elite America fulminates, the Foundation for Individual Rights and Expression (FIRE) dialed the rhetoric up about 12,000 degrees, when it somehow compared the president beefing with billion dollar firms that pound their chest about “cryptocurrency and blockchain” practices, with “the story of Atticus Finch.”

As big law associates paid among the top one percent to assemble financial instruments and represent private equity firms that gut nursing homes, leaving elderly residents in shambolic facilities and defend baby formula monopolies moralize over cutting deals with Trump, one would struggle to find similar expressions of outrage from the attorneys over the work their firms are defending from him.

If BlackRock and Amazon figured out a way to sell democracy as a subscription service, these are the same lawyers who would be running into federal court tomorrow to argue we must roll up the Constitution.

Moreover, the firms themselves are hardly on the same page. As some lawyers decry cutting deals with Washington, the firms have lined up in droves to do so. Some law firms have even sought to exploit the moment as a money-making opportunity, running the pockets of other firms fighting with the president, seeking to poach top partners and their books of business.

To be sure, the US government’s grave abuses of the justice system, at times alleged of placing listening devices inside smoke detectors in attorney-client meeting rooms, engaging in extraordinary rendition, and operating secret overseas prisons, number among the stars. This latest episode, where Wall Street firms with levels of privilege unrecognizable to 99% of Americans, defend the revolving doors of high finance from a president hellbent on hitting the lawfare tetherball back around the way, is a curious choice to number among them.

To be even surer, Trump’s actions towards these firms continue the country down a destructive, all-consuming decade-long road of lawfare.

Meanwhile, as large companies seek to dodge wrongful death lawsuits by hiding liability waivers inside streaming service terms of use, and the government refuses to return people wrongly shipped to foreign gulags, perhaps a debate about the “rule of law” that Americans would find more convincing is focused elsewhere.

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