The legal profession cannot permit democracy to die in darkness
Corporate leaders took a noticeably different approach to Donald Trump in 2024 than they did in his earlier Presidential campaigns and presidency. Opposition has become silence; silence has become support. Perhaps the most dramatic example is Jeff Bezos, second richest person in the world, founder of Amazon and Blue Origin, owner of the Washington Post. In February 2017 the Washington Post adopted the first slogan in its history: “Democracy Dies in Darkness.” Bezos personally approved this phrase and he used it himself in an interview with the executive editor of the Post. Though the newspaper had been working on a slogan for months, the choice of slogan and the timing of its release — one month into the first Trump Presidency — is more than a coincidence.
The Bezos of 2024 has taken a different tact. The Post was prepared to endorse Kamala Harris for President. But Bezos nixed that, and the Post has now changed its policy. It no longer endorses candidates for President while still endorsing candidates for numerous other offices. He wrote a column explaining his decision, but the explanations rang hollow. He was clearly concerned about currying favor with Trump. He followed that up after the election with this fawning post on X:
https://x.com/JeffBezos/status/1854184441511571765
While Bezos and Elon Musk might be the most prominent corporate leaders that have bent the knee, they are far from the only ones who have either done that or stayed silent on the sidelines.
On one level, you can understand the reasons why. There are enormous financial and personal advantages to bending the knee whereas resistance can subject corporate leaders and their businesses to retaliation.
But collaboration, submission, or acceptance of an autocrat by leaders and institutions is how democracy dies in darkness.
What will the legal profession do?
Of course, some are going to fight for democracy. This is certainly true in the nonprofit world. I am fortunate to have had Democracy Forward as a client since the day I launched Justice Legal Strategies. DF has been preparing and mobilizing legal efforts to combat the attacks on democracy by a second Trump Presidency for more than a year. And there will be small law firms and individual lawyers who will be in the fight.
When I ask the question, I am really talking about the big law firms. I started my career at a big law firm and worked closely with dozens of them for twenty years at the Lawyers’ Committee for Civil Rights Under Law. Co-counseling with firms was always the superpower of the Lawyers’ Committee. The organization was formed in 1963 when President Kennedy invited more than the 200 leaders of the private bar to the White House and exhorted them and the private bar to address discrimination. The most impactful things we did almost always required firms. We could not have secured the $577 million settlement for Maryland’s HBCU without Kirkland & Ellis devoting tens of millions of attorney and staff time, and more than $2 million in out of pocket expenses over twelve years of litigation. That big firm support was critical in the first Trump administration, too. Latham & Watkins engaged in a herculean 24/7 effort for months with us to successfully challenge the Department of Commerce and ensure a more accurate census that counted all people. There is no way the Lawyers’ Committee or any nonprofit could have done this alone.
I have my doubts that Big Law will be there to the same degree in the Trump Administration. The conversations I have had so far have been mixed. Some firms will probably be in, and some firms will probably be out. When I was at the Lawyers’ Committee, I had a preview in a high profile case we filed this decade. Two Big Law firms have been working on this matter since we started investigating. Each has donated seven figures of staff and attorney time. But neither has made an appearance in federal district court in the case because they were concerned about blowback because of who we were suing. We needed to bring in two smaller firms to help the Lawyers’ Committee staff in interacting with the courts and opposing counsel.
In my view, there are two interrelated reasons why some big law firms may sit on the sidelines while democracy is threatened — business and people. Big law is big business. Large law firms are now gross in billions of dollars per year. For example, Kirkland & Ellis, one of the firms that I referenced above, had more than $7 billion in revenue last year and a headcount of more than 3,500 lawyers. This can lead to risk-averse decision making because of potential retaliation and the fear of losing business now or potential business in the future. For example, when I was at the Lawyers’ Committee, we could not get any big firm to work with us on cases or amicus briefs that involved tech issues even if our position was not adverse to that of tech companies and even if the firm did not currently have any of the big tech players as clients. Fighting the Trump administration in some of the litigation that will follow could result in retaliation by Trump and his followers and possible loss of business. Recently, post-Harvard v. SFFA, we saw some law firms abandon programs designed at bringing people from underrepresented and disadvantaged backgrounds into the firm when sued or threatened with suit by Ed Blum and Stephen Miller. Some of these programs were completely lawful but it was not worth the time, expense, and intangible cost to the firms to defend them.
Related to the business issues are the people issues. In firms that include hundreds or even thousands of lawyers, there are going to be different ideologies and political views. In some respects, firms encourage this. For example, most large firms that have lobbying practices have both Democratic and Republican lobbyists. This can be a significant asset when a client is seeking to get a piece of legislation passed or a nominee confirmed. I have seen firsthand how effective it is to have a bipartisan team when that team worked for the Lawyers’ Committee. Top law firms seek out Supreme Court clerks from both left of center and right of center justices because they bring prestige to the firm. In DC firms, firms pride themselves on having prior administration officials. When it comes to pro bono there is a tradeoff. At most big firms, there is an understanding that pro bono work both supporting progressive causes and conservative ones will be tolerated. But there are limits. Some cases will be seen as unacceptable by people in power in the firm and this can lead to divisive internal fights. I have seen this play out including in one instance where a partner left a big firm and started his own over a big pro bono case pushing a conservative cause that the firm would not let him do. The case was ultimately decided by the Supreme Court, and we were on the other side.
I hope that the big law firms will reach consensus that the threat to democracy is too great to sit on the sidelines. But I harbor doubts that this will happen before it is too late, or at all. Will individual partners be willing to fight for democracy within their firms, and if the firms do not let them, leave a professionally stable and lucrative situation for uncertainty?
I may be wrong, but I think the next four years are going to challenge our principles as lawyers in a way that nothing else has for decades. Through acts of commission and omission, lawyers were among the many that enabled Jim Crow laws to last for nearly a century. Lawyers also played an important role in ending Jim Crow.
What will the legal profession — particularly those who command the most resources — do when democracy is at stake? Every lawyer should be asking that question of themselves. Unlike Jeff Bezos, we cannot allow democracy to die in darkness because there is a cost in fighting for it.