"FAFO," says ABA

When the target of the fourth law firm executive order was revealed to be Susman Godfrey, my immediate reaction was a good laugh, because someone inside the Trump Administration clearly didn’t get the memo, and picked exactly the wrong law firm to mess around with. I posted this image on Bluesky of how I imagined things were going to go for the DOJ lawyers:

Of course, Susman is not representing itself in the EO litigation – a team at Munger Tolles, led by former U.S. Solicitor General Donald Verilli, Jr., has submitted excellent briefing in the matter. The district court entered a TRO but so far has not permanently enjoined the order.

Now, however, Susman Godfrey is entering the litigation over the Trump EO’s not as a party but as a representative. Its client is the American Bar Association. Not in its own right, although the Trump Administration has done things to specifically target the ABA, including an order directing the Secretary of Education to “assess whether to suspend or terminate the Council [of the Section of Legal Education and Admissions to the Bar]’s status as an accrediting agency under Federal law” (apparently Florida, Ohio, and Texas are considering changes to their states’ accreditation process), and Pam Bondi’s instruction to nominees not to cooperate with the ABA’s vetting of federal judicial appointees in the Senate confirmation process (ABA’s response here). Some conservative lawyers are still angry that 4 members of a 15-member panel voted to deem Robert Bork as “not qualified” for the Supreme Court, but the criticism nowadays has more to do with the Woke Harangue¹, including a law school accreditation standard requiring schools to ensure that students “participate in a substantial activity designed to reinforce the skill of cultural competency and their obligation as future lawyers to work to eliminate racism in the legal profession,” and the adoption of Model Rule 8.4(g) prohibiting discrimination and harassment in the practice of law. (To this criticism many lawyers point out that the ABA has traditionally been dominated by elite law firm lawyers who tend to be politically conservative, albeit not of the MAGA variety.)

It's encouraging to see the ABA fighting back against the Trump Administration’s attacks on the rule of law. As early as February 10th of this year, ABA President Bill Bay issued a statement that showed awareness of the woke/lefty organization narrative that had been used against the ABA, but recasting the criticism of the administration in non-partisan terms:

There is much that Americans disagree on, but all of us expect our government to follow the rule of law, protect due process and treat individuals in a way that we would treat others in our homes and workplaces. The ABA does not oppose any administration. Instead, we remain steadfast in our support for the rule of law.

We call upon our elected representatives to stand with us and to insist upon adherence to the rule of law and the legal processes and procedures that ensure orderly change. The administration cannot choose which law it will follow or ignore. These are not partisan or political issues. These are rule of law and process issues. We cannot afford to remain silent. We must stand up for the values we hold dear.

Now the ABA has taken the fight to a new level by retaining an extremely capable and tenacious litigation firm to seek a broad injunction against Trump’s efforts to force law firms to bend the knee. On behalf of the ABA, Susman Godfrey filed a declaratory judgment action and request for injunctive relief against the Trump Administration. I teach defamation and follow the law in the area, so three of the names on the complaint immediately jumped out at me: Justin Nelson, Stephen Shackelford, and Davida Brook were lead counsel in the defamation litigation brought by Dominion Voting Systems against Fox News for repeatedly lying about the company’s role in alleged voting fraud, which resulted in an eye-popping $787.5 million settlement. The ABA could not have picked a better advocate in its effort to end what it calls the unconstitutional “Law Firm Intimidation Policy.” Maybe it’s wishcasting, but I want to see this lawsuit as the “find out” part in response to the Trump Administration’s truly unprecedented f-ing around by trying to punish law firms representing political opponents.

The core allegation in the ABA’s Complaint is that

President Trump has used the vast powers of the Executive Branch to coerce lawyers and law firms to abandon clients, causes, and policy positions the President does not like.

Complaint ¶ 4. Although the four EO’s issued against law firms have all been enjoined, three permanently, the Complaint quotes a Wall Street Journal article reporting that “Trump remains interested in the orders, and deputy White House chief of staff Stephen Miller and his allies want to keep the threats of more executive orders on the table because they think it dissuades the best lawyers from representing critics of the administration.” ¶ 5. And it’s working:

[L]aw firms that once proudly contributed thousands of hours of pro bono work to a host of causes—including causes championed by the ABA—have withdrawn from such work because it is disfavored by the Administration, particularly work that would require law firms to litigate against the federal government. News reports and studies already show that most top firms are lying low, trying to avoid being hit with similar executive orders (¶ 14).

The problem is that the three district court permanent injunctions do not have any precedential effect. The Administration can – and has stated it will – enter an executive order against any law firm that displeases the President, forcing the firm to spend goodness knows how much to litigate to an injunction (¶ 18). The result is a “chill of blizzard proportions” (¶ 19), which can be redressed only by a sweeping declaration that the Law Firm Intimidation Policy is unconstitutional (¶ 21).

As much fun as it would be to watch the ABA beat up on the Trump Administration, it’s a good thing it is represented by are very capable lawyers, because this is going to be a tricky case. One thing to keep in mind, however, is Susman’s legendary Wednesday meetings, at which firm lawyers who want to bring a lawsuit have to persuade their colleagues of its merits. As described in a Bloomberg article:

One at a time, Susman Godfrey partners pitch colleagues on the next big lawsuit the firm should invest in. The colleagues poke holes. They probe the legal theory, question damages, ponder the jurisdiction. Then up to 150 lawyers, including those on Zoom, vote on whether to take the case.

“I wouldn’t call it a murder board,” Vineet Bhatia, one of the firm’s two managing partners, said of the weekly meeting in an interview. “It’s not a cake walk either.”

Granting that the case has already gone through this vetting process and we’re considering the work of a law firm with a track record of prevailing in tough cases, there are a couple of weird aspects of the lawsuit that I want to talk about here. I have a lot of confidence in the judgment and ability of Susman lawyers, so these questions aren’t intended as criticism so much as thoughts about how this litigation might proceed.

Associational Standing

The first problem that would occur to many lawyers relates to the ABA’s standing to bring this lawsuit. It is well established that associations have standing to bring actions on behalf of their members when

(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the par­ticipation of individual members in the lawsuit.

Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333, 343 (1977). The Complaint does refer in places to the ABA’s injury in its own right. See, e.g., ¶ 15 (“The ABA itself is also experiencing the effects, as it has had to forgo litigation against the Administration because counsel who previously were willing to take on such work are no longer willing to do so.”); ¶¶ 201-05. The primary focus of the lawsuit, however, is the interference by the Administration with something more diffuse, namely the right to counsel and the role that lawyers play in sustaining constitutional democracy and the rule of law:

The ABA has long been committed to ensuring access to legal representation for all individuals and to safeguarding the ability of lawyers to zealously advocate on behalf of their clients (Complaint ¶ 63).

Thus, Article III standing will probably rely on the doctrine variously described as organizational, representative, or associational standing.

The Supreme Court has recently sent conflicting signals regarding its receptivity to associational standing. It permitted an organization formed solely for the purpose of challenging race-conscious affirmative action in college admissions to challenge the admissions practices of Harvard University and the University of North Carolina. Students for Fair Admissions v. Harvard University, 600 U.S. 181 (2023). It was sufficient for associational standing that the plaintiff organization was “a validly incorporated 501(c)(3) nonprofit with forty-seven members who joined voluntarily to support its mission.” A year later, however, the Court denied standing to associations of pro-life doctors who sought to challenge the FDA’s approval of an abortion pill. FDA v. Alliance for Hippocratic Medicine, 602 U.S. 367 (2024). Writing for the majority, Justice Kavanaugh said that

an organization may not establish standing simply based on the “intensity of the litigant’s interest” or because of strong opposition to the government’s conduct, “no matter how longstanding the interest and no matter how qualified the organization.” A plaintiff must show “far more than simply a setback to the organization’s abstract social interests.”

Slip op. at 21 (citations omitted). Objection to the government’s actions is not sufficient to confer standing on the medical associations. The organizations’ “sincere legal, moral, ideological, and policy objections to elective abortion and to FDA’s relaxed regulation of mifepristone” (id. at 24) do not establish a case or controversy under Article III. (In a sole concurrence, Justice Thomas argued that associational standing isn’t a thing at all under Article III, and that a plaintiff must assert their own injuries.)

Is the ABA different from the medical associations in Hippo. Medicine? I’m a bit worried that the ABA is doing nothing more than asserting a “sincere legal . . . objection” to President Trump’s campaign of retribution against law firms. The concern with associational standing here is well expressed in a recent critique by a pair of legal scholars – Michael T. Morley & F. Andrew Hessick, Against Associational Standing, 91 U. Chi. L. Rev. 1539 (2024) – who note that “a large association with broad or general purposes ‘would seem to be able to bring any lawsuit it wanted, becoming a roving enforcer of the law’” (p. 1543, quoting Heather Elliott, Associations and Cities as (Forbidden) Pure Private Attorneys General, 61 Wm. & Mary L. Rev. 1329, 1333 (2020)).

The alternative to permitting the ABA or a similar organization to assert the First Amendment and other constitutional claims in the Complaint is to require individual law firms to litigate the constitutionality of these EO’s seriatim, until there is appellate precedent clearly establishing their unenforceability. The Justice Department has not appealed any of the three permanent injunctions that have been issued so far. I’m quoted in a New York Times article as speculating that the lack of appeals suggests that these were never serious legal positions to begin with. I hadn’t thought until reading the Complaint and considering the standing issue that the government may have an additional angle, which is to leave open the enforceability of these EO’s, at least at the appellate level. To this a non-lawyer would surely declare “shenanigans!” A lawyer would look for a mechanism like associational standing.

I’m going to go out on a limb and predict that courts will be willing to find that the ABA has standing in this action. Here’s my reasoning: Chief Justice Roberts blew through the standing analysis in SFFA, despite the plaintiff being merely an ad hoc group formed to bring these sorts of lawsuits. The reason for this, I think, is that he and the Court majority believed that race-conscious admissions practices by universities were egregiously unconstitutional. In the abortion pill case, by contrast, the plaintiffs alleged an APA violation related to the FDA approval process for mifepristone that seemed kinda dubious on the merits. So I’m left with no more than the utterly banal observation that factors related to the merits of an action can have a sub rosa effect on standing considerations.

On the merits, it should matter that the three district court decisions so far have found, on summary judgment, that the EO’s are not only unconstitutional, but super-duper unconstitutional. To keep this from becoming a monster post I won’t go through and quote all the passages, but suffice it to say that the tone of the judges ranges from open-mouthed astonishment to incandescent fury that the President thought he had the lawful authority to ut a law firm out of business for having the temerity to represent a client or take a position that he, in his sole discretion, deemed to be contrary to the “national interest.” Just as the Court majority was not going to let pesky standing considerations get in the way of ending affirmative action in SFFA, a judge might swallow whatever qualms he or she would ordinarily have about the ABA’s associational standing out of a sincere belief that something must be done to stop the President from dangling the threat of EO’s over the heads of law firms who dare oppose him.

The strongest factor on the other side is the breadth of the association’s membership and the remedy sought on behalf of, essentially, all American lawyers. This raises another issue that has been much in the news lately – the practice of district courts granting injunctions against conduct by the defendant that affects anyone, including non-parties to the lawsuit.

Nationwide Injunctions and Class Actions

A nationwide, universal, or “defendant-oriented” injunction prevents the government from carrying out a policy with respect to anyone. Morley & Hessick, in their U. Chicago article, point out the connection between universal injunctions and associational standing:

Defendant-oriented injunctions completely prohibit a governmental defendant from enforcing a challenged legal provision against anyone, anywhere in the state or nation. Justices and scholars have questioned this practice on a variety of grounds. Associational standing provides a ready means of easily circumventing any limitations or prohibitions on nationwide defendant-oriented injunctions the Court or Congress may adopt (p. 1545).

They argue that one problem with universal injunctions is that they are in tension with Fed. R. Civ. P. 23, which governs class actions, because claims brought by associations on behalf of their members create a pre-formed class without going through the procedure or meeting the substantive requirements of Rule 23 (p. 1546). What is the ABA’s Complaint other than the assertion of a claim on behalf of a class of all lawyers, or at least ABA members, for violations of their constitutional rights?

As it happens, the Supreme Court may be on the same wavelength. In his Original Jurisdiction Substack, David Lat wrote about the oral arguments in the birthright citizenship case, taken up on the Supreme Court’s shadow docket. I read a bunch of similar reports and they all emphasized the same thing – the Court’s seeming willingness to fall back on class actions as an alternative to nationwide injunctions. Many of the Justices signaled comfort with a preliminary injunction on behalf of a putative class – i.e. one that has not been certified under Rule 23. The need to bypass class certification, at least at the TRO or preliminary injunction stage, is shown by the urgent nature of some of the cases that have wound up on the Court’s shadow docket, such as AARP v. Trump, involving the government’s middle-of-the-night attempt to use the Alien Enemies Act to deport a number of immigrants alleged to be members of the Venezuelan Tren de Aragua gang. (Justice Alito has a salty dissent in that case, complaining about non-compliance with Rule 23, among other things.) Lat cites an exchange between Justice Kagan and Solicitor General John Sauer conceded that, in response to an illegal executive order, a class action may be appropriate whereas a nationwide injunction in a single-plaintiff case would not be.

The Morley/Hessick critique of associational standing relies on a kind of Rule 23 formalism about class treatment of injuries to a group of more-or-less similarly-situated rights-holders. While I would never call myself a proceduralist, I do teach a mass torts course, and observe a similar tension between landmark Supreme Court cases like Amchem and Ortiz, which denied class treatment to groups of personal-injury plaintiffs in asbestos litigation due to failure of the commonality element of Rule 23, and the felt need of courts to find some mechanism for handling huge aggregations of claims. Depending on one’s views of judicial creativity, one might approve or mock the workaround employed by District Judge Jack Weinstein, who invented the idea of a “quasi class action” in the Vioxx litigation. Of course, the “quasi-“ prefix can mean “sorry, bub – you almost got it, but this ain’t a class action” or it can mean “close enough for policy and substantive justice purposes.” Judge Weinstein was famously in the latter camp. And again, it’s an utterly banal point that substance influences procedure. But the point of the reference to mass torts is that quasi-class actions split the difference between rigid formalism and the sort of Wild West of district courts improvising out of necessity with little guidance from the rules. Something like the Court’s gestures in the direction of injunctions on behalf of a putative class may be the right way to think about how a court should respond to the relatively formless threat posed by the Trump law firm EO’s.

Is There a “Law Firm Intimidation Policy”?

Speaking of formlessness, another concern I have is that the scope of the Law Firm Intimidation Policy is potentially very broad. For example, the ABA Complaint cites a memo from the White House directed to Attorney General Pam Bondi which fulminates about “rampant fraud and meritless claims” in immigration litigation and alleges that law firms frequently urge their clients to lie in order to establish their asylum claims (¶ 101). This memo attracted criticism when it was issued, but so far as I know, no action has been taken in response to it. One reason is that courts already have adequate responses to meritless actions and false evidence, in the form of their inherent power to sanction parties and their counsel, and the ability to refer lawyers to state bar disciplinary authorities. In fact, the memo directs the Attorney General to seek sanctions where warranted (¶ 103). Okay, but isn’t that just restating the obvious? For this reason, some immigration lawyers of my acquaintance determined to simply ignore the memo as nothing more than a warning from the government that there are potential sanctions for engaging in litigation misconduct (which these lawyers would not do in any event). It’s true that the memo also recommends seeking to revoke security clearances, one of the punitive measures employed in the law firm EO’s (¶ 104). But unlike the quite tangible harms done to the firms by the EO’s, this memo seems more like the kind of jawboning by government officials that courts routinely tolerate.

I mean, obviously there is no literal “Law Firm Intimidation Policy” in the sense of a written guidance document spelling out all of the ways in which the administration will use government power to punish dissenters. But the Complaint talk in places as if it is possible to ascertain the content of the policy. Here is ¶ 106:

The March 22 Memorandum confirmed that the Law Firm Intimidation Policy does

not apply solely to those firms specifically identified in the executive orders that had issued thus far. Rather, its targets include other attorneys and law firms who engage in conduct that the Administration views as adverse to its preferred policies, including specifically “litigation against the Federal Government.”

My question – and this is genuinely spitballing at this point, since I’ve just started to think about it – is whether it’s possible to obtain an injunction against a tendency, a pattern, a theme (cf. Complaint ¶ 115), or an attitude. There is no question that Trump will use whatever power is at his disposal to attempt to grind into dust anyone who dares oppose him. That’s what he learned from his mentor Roy Cohn, and he made sure to stock his second administration with uncritical loyalists like Pam Bondi and advisors like Stephen Miller who encourage his worst tendencies. (One feature of the EO’s and particularly of the government’s arguments in support of them, is the obsession with DEI, which seems more like a Heritage Foundation and Stephen Miller thing and less about Trump’s desire to get revenge on anyone he perceives to have crossed him.)

The Complaint does a great job of describing the pattern revealed by datapoints including the law firm EO’s, the accompanying fact sheets, Trump’s public statements, and the settlements with Paul Weiss, Skadden, and other firms. But is that something that can be enjoined? Sure, a brazenly retaliatory EO can be enjoined as a violation of the First Amendment, as occurred in the Perkins, Jenner, and Wilmer summary judgment decision. But can a court enjoin vague mutterings about “making law firms behave” (Complaint ¶ 149) or saying there may still be other firms that may be targeted (¶¶ 150, 161)? Trump runs his mouth constantly, and some of his talk is deadly serious, but plenty is just blather. It’s true that “certain kinds of expressions and representations pose a serious risk of making a firm the next target of the President’s unconstitutional Law Firm Orders (¶ 182), but since the initial round of preliminary injunctions against the EO’s, many more firms have shown willingness to represent clients and causes that could anger Trump. I realize the ABA it not seeking to prevent Trump from saying things he has a constitutional right to say, but I’m still left wondering what is the target of the requested injunction.

Well, there’s no need to guess. We can look at the ABA’s Prayer for Relief (starting at ¶ 269). It turns out to be a kind of forward-looking version of the summary judgment orders entered in the three law firm EO decisions, holding unconstitutional any . . .

• Security Clearance Termination Provision

• Government Contracting Provision

• Federal Building and Employee Access Provision

• Federal Employment Provision

. . . and specifically when such a provision is entered in response to a law firm’s representation of a client or cause. The Complaint defines these Provisions with reference to their definition in the law firm EO’s (Complaint p. 83, nn. 98-101). So maybe the best way to understand this lawsuit is an effort to force the precedential effect of the district courts’ summary judgment decisions in the Perkins, Jenner, and Wilmer cases, although with the kicker that a violation of an injunction may result in a government official being held in contempt, rather than the weaker deterrent of possible Rule 11 sanctions for bringing a frivolous claim.

In the end I’m persuaded this lawsuit has merit, although it’s less an opening of a can of whup-ass that I first expected when I read that Susman Godrey was suing the Trump Administration on behalf of the ABA. But that’s okay. The lawsuit is a serious, professional effort to put a stop to the serial issuing of these EO’s and the threat that there are more to come. But water seeks its own level and there’s a hydraulics of awfulness in the Trump Administration. The Complaint cites, as an example, the detention and search of the cell phone of a U.S. citizen lawyer upon reentry to the country, in all likelihood because he had represented protesters that had angered Trump (¶ 199). Despite the breadth of the language about a Law Firm Intimidation Policy, that sort of thing will be untouched by a declaration and injunction in this case, if entered. Still, though, it will be an important step toward protecting the rule of law, and for that, the ABA and Susman should be proud.

1. I was an undergraduate and law student during the late 1980’s and early 90’s, when conservatives were up in arms about political correctness, or “PC,” standards supposedly being enforced by universities and cultural elites. It was very much the same debate as later returned in the form of the incessant moaning about “cancel culture” and “wokeness.” My then-law-school professor Jamie Boyle wrote a book review called “The PC Harangue,” which argued that conservative complaints about political correctness reflect a rhetorical strategy of characterizing anyone concerned with racial or gender injustice as either silly or a member of the Marxist thought police. See James Boyle, The PC Harangue, 45 Stan. L. Rev. 1457 (1993). I’m adopting his word, “harangue,” here to convey a similar idea, that the invocation of “woke” ideas is “a tendentious and internally contradictory conservative attack.”