Anatomy of a Capitulation

I’ve just finished a draft article entitled “Coercion, Backboning, and Freedom of Expression.” The Article examines the various informal pressure tactics governments use to censor expression, including traditional “jawboning” (letters, phone calls, notices, etc.) and what I refer to as the “new coercion” represented by Trump Administration executive orders, funding terminations, personnel purges, retaliatory prosecutions, and more.

My article argues that the targets of these pressure campaigns have a constitutional, democratic, and moral duty to resist them and to engage in what it calls “backboning.” Backboning involves displaying civic courage by choosing to stand up for First Amendment rights and principles – even when doing so is difficult, costly, or even dangerous. It takes many forms, including continuing to communicate disfavored viewpoints, asserting First Amendment and other rights in court, rejecting deals and settlements that trade away expressive rights, and defending against rather than settling lawsuits.

As I was completing my draft, The New York Times, which has done excellent reporting on the surrender by universities, media companies, and others targeted by the Trump administration, published an article entitled, “How a Top Law Firm Went From Standing Up to Trump to Bending the Knee.” The article details how an elite law firm, Paul Weiss, bent the knee and made a “deal” with the Trump administration rather than fight what it believed was an unconstitutional executive order targeting the firm.

The Trump administration has targeted thirteen law firms in all, threatening to impose various sanctions on them including barring their lawyers’ access to federal buildings and restricting their representation of federal contractors. President Trump made clear in each order that he was singling out the firms based on who they had represented in the past and their protected expression. Nine of the law firms caved, agreeing as part of “settlements” to provide hundreds of millions of hours in “pro bono” work in exchange for withdrawal of the orders. Four of the targeted firms challenged similar orders in court and they have thus far prevailed.

The article focuses on Paul Weiss but provides critical insight into how the other law firms ultimately capitulated to the administration. While each firm’s dynamics may be somewhat unique, the article shows how powerful businesses surrendered in the face of governmental pressure.

The Times reporting provides details about infighting at Paul Weiss both prior to and after the executive order. During the first Trump presidency, Paul Weiss participated in and publicized work it did challenging administration policies like the Muslim travel ban and immigration policies that separated children from their parents. However, after Trump assreturned to office in 2024, the firm began to scrub its website of policies and representations that might draw the ire of the president. It also withdrew from a case in which its client sued the administration. These were ominous acts of cowardice. The firm was willing to self-censor in order to avoid governmental attention.

The decision to enter into a “deal” with the administration was a much bigger capitulation. As The Times reports:

When Mr. Trump issued his executive order against Paul Weiss, leaders at the firm were convinced they could beat it in court. But they feared opposing the president would hurt the firm’s finances and its clients.

Ultimately, the firm was unwilling to assert its First Amendment and other rights in court. Instead, it took increasing measures to appease the White House. According to the Times:

As a sign of how skittish the firm had become, an email exchange reviewed by The Times documents a heated discussion among partners about how — or whether — to alter a website that recounted the firm’s work against white supremacists and the rioters of Jan. 6, 2021. Some even proposed checking with the administration to see whether the website would anger the White House. . . . And after the deal was struck, when a top partner wanted to bring a reproductive rights case as a show of independence from the administration, she was shut down.

There was additional self-censoring:

Paul Weiss began scrubbing its website of references to public interest work that might conflict with Mr. Trump’s war on “wokeness.” The page highlighting its efforts to find “parents deported by the Trump administration and to reunify families” vanished, as did mention of its work on L.G.B.T.Q. issues.

Like other law firms that have bent the knee, Paul Weiss insists that it has not jeopardized its “independence.” (Boris Epshteyn, who shaped the law firm deals, bragged, “I’m in a pretty good place now. I’m the chairman of Paul Weiss.”) That word has little meaning if a law firm not only considers pre-clearing the content of its own website with government officials but declines cases because they that might anger or upset the president.

Individual lawyers were also self-censoring. The reporting indicates that the firm’s managing partner, who had been vocal about the firm’s past representations challenging Trump policies, was now shying away from speaking about such representations. Firm lawyers were also being encouraged to lower the firm’s profile in public interest spaces - even to the point of removing its name from press releases in cases where it represented a client.

Backboning requires civic courage. As my article discusses, in an ideal world targets of pressure campaigns would speak truth to power and not surrender. However, whether a target discharges the duty to backbone depends on many factors. These include potential economic costs, fear of regulatory backlash, and reputational concerns, but also the degree of commitment to constitutional rights, professional standards, and the rule of law. Law firms stand in a unique position with regard to resisting governmental abuses of power, including when those abuses are directed at them. The four firms that challenged the executive orders in court balanced these concerns in a manner that fulfilled their duty to resist being targeted for protected expression. The capitulating firms appear to have placed dispositive weight on financial considerations.

Paul Weiss’s “settlement” (for violations unproven or even unknown) involved an agreement to perform “$40 million in free legal work that both Mr. Trump and the firm backed.” According to the Times, “By the summer of 2025, Paul Weiss was doing free legal work for the Commerce Department, and unlike in the first Trump administration, it was not publicly associated with any action against the White House.” Yet, again, the firm claims it has retained its independence.

According to the article, “When Mr. Karp presented the framework of the deal at a meeting of the firm’s partners on March 20, no one objected. Thus, not a single dissenting voice among the partners. That was not true of some alumni of the firm:

A public letter to Mr. Karp signed by more than 100 of the firm’s alumni called the decision “a craven surrender to, and thus complicity in, what is perhaps the gravest threat to the independence of the legal profession since at least the days of Senator Joseph McCarthy.”

Further, although the partnership was apparently satisfied, “43 associates who had no say in the decision emailed Mr. Karp asking to discuss the ‘firm’s commitment to longstanding principles.’”

The last part of my article discusses how we might facilitate and, ideally, maximize jawboning so that these types of pressure campaigns are more likely to fail. We can strengthen and clarify some anti-coercion doctrines so that they offer more effective paths to relief. But as the Paul Weiss saga shows, having strong constitutional claims does not guarantee backboning. We have to address the economic and other incentives that convince targets to bend the knee. For law firms, that may mean altering the governance structure so that more voices are represented when “settlements” are presented.

Ultimately, we need to alter public attitudes and narratives such that the type of pressure campaign the administration has waged against law firms, universities, museums, and other targets is viewed by everyone as fundamentally “un-American.” As I stated at the end of my draft article:

Right now, economic, regulatory, and other incentives to cave in to governmental pressure remain high. A backboning movement can only begin with a recognition that this behavior violates a collective duty to resist in the name of preserving First Amendment values. Unless and until American speakers, institutions, and intermediaries are willing to honor that commitment and demonstrate civic courage and character, government officials will continue to press, cajole, and threaten in ways that undermine the freedoms of speech and press.