What the Heck is Going on in the ABA Litigation?

I’ve been scratching my head over reports that the Justice Department has issued subpoenas to the law firms that had previously settled with the administration, either to settle the sanctions imposed by an executive order or to preempt the issuance of an executive order against the firm. (NYT gift link here.) The subpoenas seek information from the firms about their discussions with Boris Epshteyn, Trump’s personal lawyer and fixer, and a perennial source of controversy:

The subpoenas ask for all communications the firms had with Mr. Epshteyn and “any communications concerning the implementation, enforcement or monitoring of” agreements between the firms and the White House, according to the subpoena reviewed by Times.

But wait a second – isn’t Epshteyn their guy? If they want to know about his communications with these firms, couldn’t they, you know . . . ask him? Why the subpoenas?

The Times article suggests it may be some kind of weird three-dimensional chess move. By potentially embarrassing the settling law firms (more than they’ve already been embarrassed, that is), they may put pressure on the ABA to drop its lawsuit seeking to enjoin the administration’s “law firm intimidation policy”:

[T]he Justice Department’s demands have placed the firms that made deals with Mr. Trump in a particularly difficult position, leaving them uncertain how to respond, according to the two people. Some firms fear that if they oppose the administration they will be hit with an executive order, one of the people said.

Some lawyers who are representing the firms have speculated that the Justice Department made the demands in the hopes of forcing the firms to pressure the American Bar Association to drop its lawsuit, according to three of the people. Others have questioned why the department would take a step that could provide greater insight into Mr. Epshteyn’s role in the administration, as there have been concerns at the White House about him.

I’ve written about the ABA lawsuit, in which they are represented by Susman Godfrey, an extremely high-quality litigation firm that is, let’s just say, not known for backing down in the face of threats. Of course, the decision to press on with litigation or settle is for the client to make, but all indications is that the ABA is also up for the fight. Former ABA President Bill Bay issued an admirably clear and strong statement in defense of the rule of law, relatively early in the second Trump administration, before the political winds had begun to shift against some of Trump’s tactics. The government’s motion to dismiss on standing grounds (which I thought had at least some likelihood of success) was denied on March 31, 2026, and so now we’re off to the races on discovery.

The ABA, via Susman, issued document and deposition subpoena to Epshteyn, which the DOJ moved to quash, in high dudgeon about what it took to be an effort to discover communications protected by the presidential communications privilege:

Before the district court even entered a discovery scheduling order, Plaintiff rushed to issue subpoenas to a third party who Plaintiff believes and knows provided the President with privileged and confidential advice in connection with the Executive Orders at issue. Plaintiff cannot be permitted to end-run around sacrosanct privileges by seeking the same type of documents and testimony from a third party that it would be barred from seeking directly from the President and the [White House].

But I guess the privilege is not so “sacrosanct” if the DOJ is seeking the same communications from Epshteyn?

I do get that there is a difference, for privilege purposes, between seeking Epshteyn-Trump communications and seeking Epshteyn-law firm communications. The asserted privilege in the Epshteyn-Trump communications is intended to protect against “chill[ing] participation in future deliberations, undermining the President’s access to the best advice, therefore undermining the quality of presidential decision-making and ability to carry out the duties of the presidency without interference.” Although the words “best advice” don’t usually appear in the same sentence as “Boris Epshteyn,” the DOj’s motion raises pretty standard concerns about inhibiting the free flow of communications between a principal and agent or other advisor. Compare the famous language from Upjohn v. U.S. about the purposes of the attorney-client privilege:

The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law. 8 J. Wigmore, Evidence § 2290 (McNaughton rev.1961). Its purpose is to encourage full and frank communication between attorneys and their clients, and thereby promote broader public interests in the observance of law and administration of justice. The privilege recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer’s being fully informed by the client.

The presidential communications privilege is bolstered by separation of powers considerations. As the Supreme Court said in the Trump immunity decision, there is

the greatest public interest in providing the President with the maximum ability to deal fearlessly and impartially with the duties of his office and the unique risks to the effective functioning of government that arise when the President’s energies are diverted by proceedings that might render him ‘unduly cautious in the discharge of his official duties (quotations omitted).

So it’s not literally incoherent for the DOJ to move to quash the ABA’s subpoenas, while at the same time issuing subpoenas to the law firms seeking the same communications, but it is at least . . . weird?

I’ve heard a couple of hypotheses to explain what’s going on here, but none of them check out fully:

1. The DOJ is attempting to put pressure on the ABA to drop its lawsuit. The Times reports: “Some lawyers who are representing the firms have speculated that the Justice Department made the demands in the hopes of forcing the firms to pressure the American Bar Association to drop its lawsuit, according to three of the people.” I have exactly zero inside information about the ABA’s thinking, but from what I can tell from the outside, the ABA was aghast and appalled at the decision of Paul Weiss, Skadden, and the other firms to cut deals with the administration. I’m not sure it’s going to be receptive to calls from leaders of those firms to cool it with the lawsuit because it’s uncomfortable for them. The general vibe I’m detecting in the profession does not include tons of sympathy for the firms that made what are perceived as deals with the devil.

2. The administration is trying to prod the settling firms into action. The deals included commitments of tens of millions of dollars worth of “pro bono” legal services (although see my previous post for a skeptical take on whether this counts as pro bono). Despite what I believe to be diligent efforts by legal journalists to learn whether firms have been paying out on these agreements, it’s still unclear whether the administration is using its allocation of pro bono services. Maybe the firms have been balking at the demands to represent Trump-friendly clients or causes, and so maybe this is a shot across their bow. This may put the firms in an awkward position of having to re-affirm their deals. They may be feeling a bit more latitude to do so. As I understand it, after an initial wave of partner departures, the settling firms have not seen a lot of defections by firm partners. At the entry level, they’re doing great. At least anecdotally, students are falling all over themselves to get jobs at Kirkland or Latham. And other than the well-publicized decision by Microsoft to fire Simpson Thacher (a settling firm) and retain Jenner & Block (a fighting firm) in a big piece of shareholder litigation, I haven’t heard of clients selecting firms based on whether they caved or resisted the administration’s EOs.

3. This is another shot at the firms that fought back. The Times reports that “the department wants to question the leaders of the four firms that have fought the administration, including: William Malley of Perkins Coie; Ishan Bhabha of Jenner & Block; Anjan Sahni of WilmerHale; and Kalpana Srinivasan of Susman Godfrey.” My sense is that these firm leaders would relish the opportunity to defend their decisions. They’re on a roll, having prevailed on summary judgment in four district court decisions and, as far as I can tell from having listened to the oral argument, be looking at least at a 2-1 affirmance by the D.C. Circuit.

4. My speculation, which I highly doubt is correct, is that maybe someone high up in the DOJ (Todd Blanche, maybe, who is facing a challenging Senate confirmation process?) has finally had it with Epshteyn and this is a way of pushing him farther from Trump’s orbit. Apparently some in the White House have long been wary of Epshteyn:

According to “Regime Change,” a new book by the Times reporters Maggie Haberman and Jonathan Swan, the incoming White House counsel, David Warrington, delivered a scathing warning about Mr. Epshteyn.

“Epshteyn’s conduct must be stopped and his employment and proximity to President Trump should be terminated,” Mr. Warrington wrote. “Otherwise, his conduct will likely lead to, at best a scandal involving the incoming Trump administration, and at worst could lead to criminal indictments.”

I haven’t really done this yet on this Substack, but I invite comments from readers. What am I missing here? Anyone know anything? Anyone . . . Bueller?