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The Shift: Silent Treatment: Why Big Law Has Not Spoken Out on Trump’s Covington Memo
Covington & Burling attorneys last month saw their security clearances suspended by President Trump in a memo calling for an investigation into whether the firm participated in the “weaponization” of the judicial process in its representation of former special counsel Jack Smith. The president also called for a review of any federal contracts Covington may have, saying the firm’s representation of the man who once investigated Trump required a closer look.
While law firm leaders have noted that individual government hires or divisive representations have historically created the possibility of backlash, the step by Trump to suspend a firm’s security clearances was a shift into new and, for them, scary territory, many told us privately.
But what can—or should—they do about it?
In a Chatham House rules style conversation with firm leaders this week, we got a bit more insight into whether this was the first test of Big Law’s post-election response to hot-button topics or simply not the right time to speak out.
There’s no doubt the news about Covington sent shockwaves through the legal community as they were faced with perhaps the closest-to-home example of how Trump may wield his authority against those who oppose his views. While members of Big Law were clearly talking about it behind the scenes, they have been mum when it comes to speaking publicly. Around a dozen Am Law 100 leaders declined to go on the record for this piece by my colleagues Abigail Adcox and Dan Roe examining whether Trump’s order would have a chilling effect on the legal work firms choose to take on.
For its part, Covington has said: “For more than 100 years, Covington has represented clients facing government investigations, consistent with the best traditions of the legal profession. We recently agreed to represent Jack Smith when it became apparent that he would become a subject of a government investigation. Covington serves as defense counsel to Jack Smith in his personal, individual capacity. We look forward to defending Mr. Smith’s interests and appreciate the trust he has placed in us to do so.”
Some say that if Big Law doesn’t speak out, there’s no chance of tamping down this type of threat to the rule of law.
“If Big Law firms cave, I think that sends such a negative and weak signal to the broader profession because they’re the leaders. They have the resources. If they can’t stand up for what’s right in this situation, then it makes it hard to imagine other people doing it who are much more vulnerable,” Scott Cummings, a legal ethics professor at the UCLA School of Law, told Adcox and Roe.
It’s not that Big Law leaders don’t have opinions.
One Am Law 100 firm leader, speaking anonymously, said they and several colleagues at other Big Law firms agreed that the memo represented “despicable behavior by the administration in its shameless disregard for the rule of law.” Another described it as “insane,” adding that “the notion that the administration would retaliate against a lawyer providing constitutionally required criminal defense because the prosecutor in question investigated him—it’s bonkers. There is no precedent.”
A third Big Law firm leader said that although their cohort wasn’t yet “freaking out,” the retribution against Covington was “surprising.” Meanwhile, a fourth firm leader didn’t think the memo would prevent Big Law firms from representing corporations that have drawn the ire of the Trump administration, but acknowledged that certain pro bono and anti-administration clients might not find representation in Big Law.
When we got firm leaders together this week to discuss an entirely different topic, the memo on Covington came up. They said it’s a safe bet every member of firm management is thinking about this particular issue and the broader topic of how to keep doing good work—such as DEI efforts—while staying out of the administration’s crosshairs.
Firm leaders said there are commercial realities to who they hire or who they represent, from the perspectives of both what existing clients and talent think to what the government might do. But that, they said, is not a new phenomenon. Trump’s memo targeting Covington, however, was “highly unusual” because it called out a firm specifically for who it represents and the action impacted their ability to do their work. And as it relates to hiring, they all reiterated a sentiment some shared just after the election— hiring former Biden administration lawyers to do government-facing work just can’t be effective.
One leader of a global firm said there will be volatility every day, with new and unexpected twists, and they are just trying to keep their teams focused. The leader said there were people in the firm who wanted to write letters condemning Trump’s memo, but the firm put a stop to it. They said the firm had to view it through the lens of what would be effective.
“Are you accomplishing anything, or just venting?” the leader said, outlining the calculus for when and how to act.
Most firm leaders didn’t view individual public statements as helping the cause.
“Lending a hand isn’t the smartest thing to do … tactically,” another firm leader said.
And while firm leaders didn’t say as much, the risk to their firm may not have been worth the reward. But they did wonder whether there was more they could do together on the broader issue of protections to the rule of law—something that has also plagued the judiciary in recent weeks, leading to multiple statements from bar associations and other pockets of the profession calling for protections to the judicial process.
In a roundtable discussion immediately following the election, Big Law leaders told us they would considerably pull back from making public statements about divisive issues. They also said the administration brought with it a new way of doing business—one that meant less predictable and unified applications of rules and more individual experiences and relationship-driven opportunities.
That new-found reality could signify, as the Covington scenario demonstrated, that no one firm’s experience is viewed as a template for what would happen to others. While not quite rising to the level of “every man—or firm—for himself,” the idea of adding a singular voice to the mix isn’t viewed as anything that would compel change.
There’s no doubt many were happy to have a reason to pull back from public comments around social issues not directly related to their legal work. But it just so happened that one of the first tests under the Trump administration of their wherewithal to speak out was on an issue directly related to their day-to-day work.
For now, it seems Big Law leaders are trying to figure out what could make a difference, with clear interest expressed around coalescing as a group to add their voice to the mix. Whether that will happen may be the real test.
Want to know more? Here’s what we’ve discovered in the ALM Global Newsroom:
The Forecast
If the last six weeks are anything to go by, it appears highly likely that Big Law will face multiple tests on issues related to both the rule of law and broader social topics under this administration. A reticence to speak out publicly is unlikely to change as firm leaders see how the administration actually operates now in office. We may also see firms pull-back on DEI messaging, even if the efforts persist. We know they will shy away from certain government hires, and they may pull back from certain representations.
But perhaps this should not be mistaken for apathy or cowardice. Behind the scenes, there does seem to be an appetite among some for coalitions of firms organizing to speak out together. There seems to be a clear sentiment that they want to continue to represent the clients of their choosing and run internal programs of their choosing.
Speaking up under this administration may feel too risky, but of course, there are well known ramifications for staying silent.
It looks like firm leaders weren’t able to avoid circumspection around whether to issue public statements after all. But perhaps the bigger question now becomes—what can make an impact in the current environment? The new test has been issued.
