An Unlawful Crusade

There was a palpable sense of relief and pleasure among many newly minted Trump supporters after he thrashed Vice President Kamala in the presidential elections in November 2024. To folks like me, the Biden administration had been perhaps the worst in the history of the United States. Biden had a penchant for imposing on his targets ill-conceived regulations, decrees, and orders that crippled personal freedom and killed economic growth. He manipulated Internet platforms to pay off his friends or punish his enemies; his one-sided labor rules; his antitrust overreach; his dangerous abuse of securities disclosure rules to address global warming; his misguided mandates for electric vehicles; his DEI standards weakened the military, universities, and businesses around the world. Foreign policy was marked by his chaotic withdrawal from Afghanistan, his mishandling of wars in Gaza and Ukraine, and his weak response to China’s rising aggressiveness.  Good riddance.

Improvements on this dismal record gave Trump a triumphant return to office. But he blew it. All he had to do was stay on message with a deregulation program that would shrink government size, advance personal liberty, and improve economic growth. Many of his Presidential Actions of March 14, 2025, did exactly that by rescinding some 14 Biden-era executive Orders on Covid, workplace safety, and minimum wage laws. These overdue actions have not elicited a negative response.  

Then, sadly, Trump has squandered his goodwill by misunderstanding the limited scope of his mandate. He has set out on a reckless agenda to outdo Biden at his worst, by imposing tariffs that will lead to recession, economic dislocation and stock market losses; his gratuitous saber rattling is damaging the social and business ties between the United States and its allies, menacing Greenland and Canada, while cozying up to dictatorships in China and Russia  

The piece-de-resistance of his new crusade is menacing large American law firms with campaigns of extortion that go after woke politics with even greater ferocity than Biden went after supposed racist and white supremacy policies that he falsely claimed polluted universities and businesses everywhere. Trump took precisely the wrong lesson from Biden’s miscues.  Instead of backing off against his political enemies, he launched his own vendetta against them, promising more to come. The opening salvo began with Executive Orders against major law firms—Paul Weiss, Jenner & Block, WilmerHale, Covington & Burling, Perkins Coie—which both in tone and purpose resemble the kind of diktats from the dim Soviet past. His “fact sheets” are boiler-plate resurrections of his past resentments that he then uses to suspend security clearances without notice and to deny access to all governmental personnel and information to the employees of these firms, numbering in the thousands, all because a handful, or at times just one, of the members of these “rogue” firms opposed him: Mark Pomerantz for Paul Weiss; Robert Mueller, along with James Quarles and Arron Zebley for WilmerHale, Andrew Weissman for Jenner & Block; Covington & Burling for defending Jack Smith; Perkins Coie, for the Steele dossier.  

He forgot, if he ever knew, the Roman law maxim: nulla poena, sine lege. No penalty without law. His disregard for principle led to these cookie-cutter indictments that in pure Soviet style find all these unnamed firm lawyers guilty of taking actions that “threaten public safety and national security, limit constitutional freedoms, degrade the quality of American elections, or undermine bedrock American principles,” often through pro bono actions, many of which have opposed initiatives of Trump’s administration. These scattered particulars sound like Bills of Attainder, prohibited under the U.S. Constitution, which castigates the unpardonable sin of Paul Weiss hiring Robert Mueller, or of Jenner & Block hiring Andrew Weissman (a colleague of mine at NYU Law), who was part of Mueller’s investigative team. Trump then appends charges that these firms have violated Title VII, for which he files no complaint. He is prosecutor, judge, and jury.

Trump’s orders are overtly intended to wreck the financial prospects of the firms that do not capitulate to his demands. These orders could easily spur certain practice groups to bolt en masse to another large firm, at least to such groups that do not think that the Trump taint will travel in exile. But Trump then throws these firms a lifeline: to engage in partisan pro bono work for conservative causes of which Trump approves. Paul Weiss took the bait by offering $40 million in such services. For their part, WilmerHale, Jenner & Block, and Perkins Coie have decided to sue the Trump administration in Court. May they all have a speedy victory.

I do not wish to fault firms like Paul Weiss for yielding to a $40 million shakedown under threats. But whether one likes or loathes Paul Weiss, it is essential to issue an unqualified condemnation of Trump’s tactic of using free-ranging executive orders to coerce private entities into making massive contributions to his pet projects, without any lawsuit or finding of guilt.  By making this categorical claim, I do not defend on the merits any of the actions of these named individuals for their activities during the Biden administration. But turnabout is not fair play. Nulla poena sine lege again. 

Here are the two fundamental norms that Trump disregards. First, viewpoint discrimination—a disguised transfer of wealth and power from one person to another — is always a per se violation of the First Amendment. It is hard to imagine any valid lawsuit that Trump could bring against the targeted individuals, let alone against the thousands of other lawyers who work in these firms. Using an open-ended executive order to achieve that end poses a significant threat to the First Amendment and should be immediately quashed. There may be no way to make the Trump administration cooperate with, let alone hire, firms on Trump’s hit list, but there is no reason to not to allow these firms to sue the Trump administration, receive documents, and to take depositions just as if his Executive Orders had never been issued. In addition, the order against Covington necessarily interferes with Jack Smith’s right to the assistance of counsel under the Sixth Amendment unless one naively thinks that a huge tax of millions of dollars does not burden the exercise of that constitutional right.  

In this regard, as Eugene Volokh shows in detail, Paul Clement's representation of WilmerHale is right on the law.  My only quibble with his approach is that the body of the brief is inconsistent with his opening quotation, which stresses the necessity of allowing respectable law firms to defend unpopular clients. It was, therefore, not necessary for Clement to stress the excellence and range of WilmerHale’s A-list practice. It would have been wiser to say that its reputation and ability are irrelevant to the constitutional questions so that any wretched firm of ambulance chasers gets the same protection as WilmerHale. It is not remotely credible for Trump or any other administration to sanction firms without charges or proof of guilt. His admission of retaliatory objectives makes his approach inexcusable and unconstitutional.

What is true of intimidation by executive order also applies to any use of the Internal Revenue Service to conduct investigations against woke firms without making any charge of illegality. Long-established principles provide legal protections against the government sifting through files of documents to support unspecified charges. Yet just that impolitic suggestion was recently made by James Taranto, the respected editorial features editor of The Wall Street Journal. In his column, “From Bob Jones to Columbia University and DEI,” Taranto urges the Trump administration to enlist “the most fearsome agency: the IRS” to rid campuses of their woke culture and toxic antisemitism.

Bob Jones University v. United States (BJU) was an aggressive Supreme Court decision that followed a 1971 Revenue Ruling that held that charitable deductions were not available to any trust that failed the requirement that its purpose “not be illegal or contrary to public policy.”  The first of these grounds, illegality, is unexceptional. BJU, at the time, forbade its students to practice or support interracial dating or marriage.  But the second, public policy, is not. The sole sources of public policy against its practices mentioned in the Supreme Court were determinations made by Congress and the President. Freedom of association was ignored, and the supporters of BJU had no say in the Court’s evaluation. Indeed, even at the time the protections of the free exercise clause of the First Amendment would have precluded a direct attack on the practices—a result confirmed by later cases such as Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, which refused to apply the employment antidiscrimination law to religious organizations protected by the “ministerial exception” to Title VII, because the Establishment and Free Exercise Clauses of the First Amendment both barred suits brought on behalf of ministers against their churches. 

Against that backdrop, the IRS tactic in BJU could not be used today in IRS efforts to snuff out antisemitism and woke politics without giving the targeted woke any of the protections of a fair trial before a neutral that it could receive in a lawsuit. Hosanna-Tabor never once discusses free speech cases, but given that viewpoint discrimination laws are subject to the same high standard of scrutiny, the IRS should also be prohibited from barring the charitable deduction and from conducting a massive investigation of their internal affairs to prove its case. Indeed, the current situation is far more dangerous than with BJU because, in that case, the government could rely on BJU’s statements about its own policies. Here, in contrast, it can run massive searches to attack institutions that will fight them on the facts, which is far more intrusive. Again, the dispute is not about the legal merits of university responses to woke policies or antisemitism. It is only the strong insistence that the same protections that are offered here would be available to conservative religious institutions that are charged with systematic racism and white supremacy. We do not need repetition of these practices by Democrats when Trump is out of office.  Nulla poena sine lege applies equally to all cases.

Richard A. Epstein is a senior research fellow at the Civitas Institute. He is also the inaugural Laurence A. Tisch Professor of Law at NYU School of Law, where he serves as a Director of the Classical Liberal Institute, which he helped found in 2013.