As part of well-publicized “deals,” nine internationally famous law firms have committed nearly $1 billion in pro bono legal services to carry out the Trump Administration’s goals. But a factual fog surrounds the agreements: What exactly did these firms agree to? Have the full agreements been committed to writing? What are the terms? Are they fixed or evolving? What law governs? Who exactly are the parties: Did firms contract with President Donald Trump personally? With the U.S. Government? Or with government agencies like the EEOC?
These basic questions remain unanswered, raising two key questions. First, are these agreements legally enforceable? Second, if not, what principled reasons do the firms have for keeping their part of these bargains?
Are the Law Firm “Deals” Enforceable Contracts?
On the first day of Contracts, every law student learns that a contract requires a meeting of the minds. But a growing body of evidence suggests that the firms and the President hold very different and conflicting understandings of what the deals require. Trump continues touting the fact that he “ha[s] a lot of legal fees” at his disposal and that he “might as well use them.” He and his subordinates have floated such varied possibilities as having the firms negotiate trade deals, draft coal leasing agreements, and represent him personally. As several internal statements make clear, the firms clearly did not see indentured servitude or ceding government control of their pro bono commitments to be part of the deal. The contract-law requirement of “definiteness” is well settled: if the parties are so far apart on the key term of the deal, was there really any meaningful agreement at all?
Second, a contract without consideration is unenforceable—something the law calls an “illusory promise.” Consideration requires each party to surrender something of value or a legal right they otherwise possess. But if the president retains full discretion to re-issue executive orders or again direct EEOC investigations at any time—even if capitulating firms follow their agreements to a T—then the president has surrendered no legal rights or powers. His tweeted “promise” not to target a capitulating firm is worth nothing. It is merely a statement of present intention, not a binding commitment that limits his future actions.
Further questions arise under the doctrines of unconscionability and duress. No one is bound by a “contract” made with a gun to their head. The law firms who struck deals believed that being targeted by a punitive executive order would cause an “existential crisis” and a “death spiral,” leaving them no reasonable alternative but to capitulate. But if that were true, those firms need not abide by the deals. If the president’s wrongful conduct indeed left them no reasonable alternative, they could challenge the enforceability of those deals as illegal products of both procedural and substantive unconscionability or even duress.
Finally, the illegality of the punitive Executive Orders opens the door to a challenge on public policy grounds. Courts are not timid in voiding contracts contrary to “public policy of the United States as manifested in the Constitution.” In the words of Judge Loren L. AliKhan, “The Framers of our Constitution would see [the Executive Orders targeting law firms] as a shocking abuse of power.” The four law firms that challenged the punitive Executive Orders quickly won temporary restraining orders blocking the Orders from taking effect. The tenor of subsequent court hearings suggest that the challenging firms are now steadily moving toward securing permanent injunctions. As the briefs supporting plaintiffs argued in those cases (Perkins, Jenner, Wilmer, Susman)—and as we argued in a prior essay—the executive orders violate not just the First, Fifth, and Sixth Amendments, but also exceed lawful presidential authority, violate the separation of powers, and constitute unlawful bills of attainder that no president has the power to issue. No court would have approved deals coerced by these illegal executive orders as consent decrees, subsequently monitored by judicial oversight. These blatant constitutional defects, both in the original Executive Orders and any new orders the administration might issue against “breaching firms,” suggest that these deals may also be voided as offensive to public policy.
A Second Chance to Do the Right Thing
If the supposed contracts are unenforceable, what follows?
First and most obviously, no new firm should enter into an illusory contract. The core of what a law firm does is to hire its own lawyers, choose its own clients, and handle its own cases according to its own professional judgment. These “deals” surrender a law firm’s professional independence and invade its autonomy, while imposing no meaningful limit on the President’s authority. Any firm approached by the Administration should join the ranks of those firms who are suing, as that is the only way to achieve principled and legal certainty.
Second, for the reasons above, “settling” firms now have a second chance to reassert their independence. They can and should assert that those “agreements” are not enforceable. It is not enough to say vaguely, as a number of the firms have, that they continue to “stand by their values.” Instead, the firms should take specific, concrete actions that make clear that they still choose their own clients and cases. If, for example, a settling firm’s pro bono committee finds it consistent with the firm’s values to represent a military veteran seeking gender-affirming surgery, then the firm’s lawyers should urge it to take such a case. Such actions would confirm that the law firm, and not the government, is its own boss, and remains in charge of its pro bono docket.
Third, the “settling” firms should consider the potential costs of continuing to do the Administration’s bidding. The settling firms will find no safe harbor if they continue to carry out “their part of the bargain.” What began as coercion could become complicity if these firms, in order to maintain access to the Administration, continued to honor arrangements predicated on illegal executive actions. Trump himself said that the accepting firms “have paid me a lot of money in the form of legal fees.” The first firm to make such a settlement stressed the “fact that, as the President publicly has acknowledged, our firm now has an engaged and constructive relationship with this Administration.” As some Members of Congress noted in recent letters to the “settling” law firms, if these agreements are in fact honored, the firms who execute them will have offered free services to the Administration in return for their continued access. Such open, continuing collaboration between the government and the firms runs the risk of violating a host of ethics and state laws, not to mention possible federal law violations ranging from statutes forbidding corruptly promising or giving “anything of value” in exchange for preferential government treatment to the ban on donation of voluntary services under the Anti-Deficiency Act. The accepting firms should clearly renounce what may otherwise be construed as “pay-to-play” arrangements aimed to curry favor with the Trump Administration.
Fourth, law students and potential clients considering affiliating themselves with an accepting firm should ask: why should that firm continue to do the government’s bidding under an unenforceable contract? If these are not done deals, these firms have a choice. So, who runs the firm: its lawyers or the government? If the accepting firms have surrendered to the Administration the right to choose the firm’s cases, clients, or lawyers, they have clearly created conflicts of interest for themselves and their clients. Any potential employees of the firm would be entitled to take the firm’s decision going forward into account in deciding whether to work there, for the summer or permanently. And any potential clients would be entitled to reconsider bringing work to a firm that would require the firm to deal at arm’s length with a federal government that feels entitled to tell that firm what to do.
In short, the President cannot enforce the law-firm “deals” imposed by his Administration. The firms who “agreed” under coercion should renounce those “deals,” or publicly explain why they feel constrained to fulfill illusory bargains. If those firms choose to honor the “deals,” their conduct might well prove to be illegal. No new firms should accept them. And potential clients and employees are entitled to question why a law firm has chosen to surrender control of its choice of future clients or cases to the U.S. Government.
Editor’s note: This piece is part of the Collection: Just Security’s Coverage of the Trump Administration’s Executive Actions