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I am delighted to post a draft of my work entitled "Undesirable Clients; Undesirable Lawyers – The Emerging Structures of Gatekeeping Strategies in the U.S.A. The work considers the issues that have been raised again about the nature of lawyer independence in rule of law political systems most recently through the series of Executive Orders issued by the Trump Administration and directed to singled out law firms. Several of the named law firms have already sought and for the most part obtained judicial relief from the application of the terms of the Executive Orders, though they have been less successful in getting the courts to remove or deal with the justification statements, opinions and assertions that formed an important part of each of the Executive Orders. In the process, though, the courts have already begun something of a dialog situating lawyers within a legal web of constitutional protection for speech, due process, and the relevance and consequence of retaliation or intent in decision making by executive officials.
The abstract provides a little more detail:
Abstract: Within weeks of the inauguration of President Donald Trump in 2025, his Administration challenged, and in challenging, sought to redefine, the fundamental expectations of the lawyer’s role within liberal democratic rule of law (RoL) systems. The effort has been highly contentious from the start, involving critical elements of a RoL system: administrative officials, law, judges and courts, and the lawyers whose role among and between them and is at the center of the controversy. Through this lens, this chapter examines the contemporary debates of lawyers as gatekeepers within the U.S. as it is now emerging. At the heart of this analysis are a series of Presidential Executive Orders (EOs) issued in the first months of the Trump administration targeting specific law. To that end the contribution frames the discussion around the discursive framework within which actions are understood and evaluated. The contribution first situates the conflict within its larger mythos—the fundamental understanding of the role of lawyers in a rule of law state. That fundamental understanding which serves as the starting point for judicial analysis of claims grounded in their breach is in turn founded on a peculiarly American origin story, the 1770 defense by John Adams of British soldiers in Boston. With this as an analytical baseline, the contribution then considers the challenge posed by the EOs, with particular focus on the initial judicial response.
Always delighted with feedback. The draft may be accessed via SSRN HERE. The Introduction and Conclusion follows below.
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Submission Draft 9 June 2025
Larry Catá Backer
Abstract: Within weeks of the inauguration of President Donald Trump in 2025, his Administration challenged, and in challenging, sought to redefine, the fundamental expectations of the lawyer’s role within liberal democratic rule of law (RoL) systems. The effort has been highly contentious from the start, involving critical elements of a RoL system: administrative officials, law, judges and courts, and the lawyers whose role among and between them and is at the center of the controversy. Through this lens, this chapter examines the contemporary debates of lawyers as gatekeepers within the U.S. as it is now emerging. At the heart of this analysis are a series of Presidential Executive Orders (EOs) issued in the first months of the Trump administration targeting specific law. To that end the contribution frames the discussion around the discursive framework within which actions are understood and evaluated. The contribution first situates the conflict within its larger mythos—the fundamental understanding of the role of lawyers in a rule of law state. That fundamental understanding which serves as the starting point for judicial analysis of claims grounded in their breach is in turn founded on a peculiarly American origin story, the 1770 defense by John Adams of British soldiers in Boston. With this as an analytical baseline, the contribution then considers the challenge posed by the EOs, with particular focus on the initial judicial response.
1. Introduction
Within weeks of the January 2025 inauguration of President Donald Trump, issued a series of Executive Orders (collectively the Trump Administration EOs)[1] directed against specific law firms and lawyers.[2] The EOs all followed a similar form and can be divided into two parts. The first part is the narrative part, including a “background” section in which the case for the action to follow is summarized, based on conclusions drawn from the facts and judgments set out, usually specifying that the actions detailed pose a threat to national security, public interest and safety and “undermine American principles.”[3] The second part then specifies a number of consequential actions: (1) review or stripping away of firm security clearances; (2) refusal to deal with federal contractors or others who employ the law firm or its lawyers; (3) investigations respecting racial preference discrimination by the firm, and (4) barring firm access to government property. These are all formally limited in the EO text “to the extent permissible by law.”[4] In this way, and consistent with approaches taken by prior administrations to change policy through the use of EOs,[5] the Administration challenged, and in challenging, sought to redefine, the fundamental expectations of the lawyer’s role within liberal democratic rule of law (RoL) systems.[6]
The effort has been highly contentious from the start, involving critical elements of a RoL system: administrative officials, law, judges and courts, and the lawyers whose role among and between them and is at the center of the controversy. [7] It has been suggested that this is part of a broader effort to re-examine the fundamentals of the U.S. political model.[8] But it also has been suggested that the system itself merely replicates power relations within the political-economic models within which they operate[9] with respect to which current challenges represent a continuity rather than a disruption.
Through this lens, this chapter examines the contemporary debates of lawyers as gatekeepers within the U.S. as it is now emerging. At the heart of this analysis are a series of Presidential Executive Orders (EOs) issued in the first months of the Trump administration targeting specific law.[10] To that end the contribution frames the discussion within the discursive framework within which actions are understood and evaluated. The contribution first situates the conflict within its larger mythos—the fundamental understanding of the contemporary understanding of the role of lawyers in a rule of law state. That fundamental understanding which serves as the starting point for judicial analysis of claims grounded in their breach is in turn founded on a peculiarly American origin story, the 1770 defense by John Adams of British soldiers in Boston. With this as an analytical baseline, the contribution then considers the challenge posed by the EOs, with particular focus on the initial judicial response to the gatekeeper expectations of lawyers,[11] and negotiated settlement.[12] The judiciary, through its trial courts for the moment, have voided the Trump Administration EOs, producing in the process potentially significant jurisprudence on the nature of the lawyer’s role in the American legal system, and the character of the protections law affords that role. That defense moves from the narrative of the lawyer as gatekeeper to the constitutional protection of speech, and the against ultra vires action by public officials as the basis for a rule of law for the role of the lawyer in fulfilling their rule of law functions.[13]
[1] Andrew Rudalevige, “Executive Branch Management and Presidential Unilateralism: Centralization and the Issuance of Executive Orders,” (2015) 42 Congress and the Presidency 342-365; Kenneth R. Mayer, “Executive Orders and Presidential Powers,” (1999) 61(2) The Journal of Politics 445-466.
[2] Exec. Order No. 14230, 90 Fed. Reg. 11781 (March 6, 2025) (Addressing Risks from Perkins Coie LLP); Exec. Order No. 14230, 90 Fed. Reg. 13039 (March 20, 2025) (Addressing Risks from Paul Weiss); Exec. Order No. 14250, 90 Fed. Reg. 14549 (March 27 2025) (Addressing Risks from WilmerHale); Exec. Order No. 14246, 90 Fed. Reg. 13997 March 25, 2025) (Addressing Risks from Jenner & Block); Exec. Order No. 14263, 90 Fed. Reg. 15615 (April 9, 2025) (Addressing Risk from Susman Godfrey)
[3] See, e.g., Addressing Risks from Jenner & Block, supra, §1.
[4] Addressing Risks from Paul Weiss, supra, §3.
[5] Kenneth R. Mayer and Kevin Price, “Unilateral Presidential Powers: Significant Executive Orders, 1949-99,” (2002) 32(2) Presidential Studies Quarterly 367-386.
[6] Linda Klein, “The Rule of Law and the Fundamental Role of Lawyers,” (2019) 79 Studia Juridica 9-13 (“What is more important to all of us is the lasting strength of our cherished value, the foundation of who we are, the rule of law as expressed by the vigorous and independent legal profession and judicial branch of government,” id., p. 9); Cf., Terence C. Halliday, “The Politics of Lawyers and the Rule of Law,” (2020) 12 Hague Journal on the Rule of Law 185-193.
[7] For critical responses from the American legal and academic communities, see, e.g., “The ABA supports the rule of law, American Bar Association” (10 February, 2025), available https://www.americanbar.org/news/abanews/aba-news-archives/2025/02/aba-supports-the-rule-of-law/, last accessed 9 June 2025; Statement of the Association of American Law Schools on Executive Branch Compliance with Court Orders (18 February, 2025), available https://www.aals.org/newsroom/statement-of-the-association-of-american-law-schools-on-executive-branch-compliance-with-court-orders/, last accessed 6 June 2025.
[8] Scott Cummings, “Why do Lawyers Attack the Rule of Law? Trajectories of ‘Trump Lawyers’,” (2025) 32 International Journal of the Legal Profession 19-44.
[9] Yves Dezalay and Bryant Garth, “Law, Lawyers and Social Capital: ?Rule of Law’ Versus Relational Capital,” (1997) 6(1) Social & Legal Studies 109-141.
[10] See note 2. In addition the President issued a memorandum targeting Covington & Burling, see, Exec. Memorandum (February 25, 2025 (Suspension of Security Clearances and Evaluation of Government Contracts), https://www.whitehouse.gov/presidential-actions/2025/02/suspension-of-security-clearances-and-evaluation-of-government-contracts/, last accessed 6 June 2025.
[11] See Wilmer, Cutler, Pickering, Hale & Dore v. Executive Office of the President, Civ. A. No. 25-917 (D.D.C. May 27, 2025); Perkins Coie LLP v. U.S. Dep’t of Just., Civ. A. No. 25-716 (BAH) (D.D.C. May 2, 2025); and Jenner & Block LLP v. U.S. Dep’t of Just., Civ. A. No. 25-716 (JDB) (D.D.C. May 23, 2025).
[12] Exec. Order No. 14244, 90 Fed. Reg. 13685 (March 21, 2025) (Addressing Remedial Action by Paul Weiss).
[13] Discussed in Wilmer, Cutler, Pickering, Hale & Dore v. Executive Office of the President, supra, pp. 47 et seq.
5. Conclusion
The Trump Administration lawyer directed EOs, then, suggest a more complicated story than one based on some sort of two dimensional juxtaposition of mythos and a worried interpretation of the implications extracted from judicial reading of the EO text. As a baseline, however, both the Trump Administration and those who have challenged that Administration’s executive actions appear to hold tightly to a core premise—the value and existence of lawyer independence with the U.S. RoL system. Yet they appear to understand that independence with different emphasis. For the law firms, lawyer independence focuses on protection against government interference with its business—for which law wielded through the courts appears to provide the necessary protection. For the Administration, lawyer independence is the necessary lubricant to manage lawyer behavior in accord with national policy, in the same way that compliance based incentives are created in other areas where regulatory supervision under conditions of compliance have become rooted in the constitutional system. The Trump Administration wants to manage compliance in order to enhance its bargaining position in transactions with law firms by denying firms access to the State. The law firms want to manage state compliance to ensure that while private actors may seek to engage in actions that create or control incentives to bargain, the state cannot.
At their extremes, neither position is entirely defensible. That, more than anything perhaps, is the critical lesson of the judicial interventions around the Trump EOs. Nonetheless, there is no complexity here, conceptually at least. The State as regulator must be neutral; and it must permit access to its services and personnel wholly in accordance with law uniformly applied—especially with respect to the exercise of constitutional rights. Acts of abuse of administrative discretion serve as a limiting principle—these are subsumed within principles built around retaliation, abuse of discretion, and (bad) intent. At the same time, the State as market participant can also expect some sort of protection to the extent that it is accorded to other participants—especially with respect to the right to choose their lawyers. Nonetheless the limiting principles applicable to private actors might also apply as limiting categories—tortious interference with business relationships, defamation, and the like—even if there is no power in the aggrieved party to recover monetary damages against the State—equity ought to serve to prohibit officials from engaging in such conduct.
In the context of the Trump Administration EOs, one notes a misalignment between the worry embedded in the narratives of lawyer function and the reality of what has been occurring. For the present, at least, it appears that the market combined with the State appears robust enough to avoid a transformative assault on the American lawyer mythos. At the same time, the markets oriented pragmatism inherent in the actualities of lawyer operation embedded in the origin story, suggests that it is market integrity that plays a critical role in both disciplining lawyers and in protecting their independence from the State—but not from the community of market participants.
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