Bloomberg LawMatthew Diller, a professor at Fordham Law School, discusses President Donald Trump’s assault on judges, lawyers and the rule of law. Erik Larson, Bloomberg legal reporter, discusses Judge James Boasberg extending his order to prevent the Trump administration from using a wartime law to deport alleged Venezuelan gang members. June Grasso hosts.
This is Bloomberg Law with June Grossel from Bloomberg Radio.
President Donald Trump has been complaining about a legal system rigged against him for years.
We'd have a system that was rigged and disgusting.
I did nothing wrong.
That's been his basic complaint, although there have been many variations on the theme, and now that he's back in power, he hasn't wasted much time in targeting judges, lawyers and law firms, especially those he feels wronged him. And it's a fight that Trump keeps escalating. Joining me is an expert on the legal profession, Matthew Diller, a professor at Fordham Law School. He's written a column for Bloomberg Law entitled Trump's orders are attacks on the rule of Law. Tell us about the extent of Trump's attacks on the rule of law.
The Trump administration has really broadened out at the tax. Initially started with its attacks on the judiciary, and now it is continuing to attack the judiciary and has added in attacks on the legal profession really as a whole. And the attacks go to the fundamental ethos and role of the legal profession in our society. So from the very start of the administration, government lawyers, lawyers who worked for the federal government were under siege, and those lawyers play a critical role in our system of law enforcement and upholding rules and making sure the government is not abusive. And so almost as soon as he came into office, President Trump began to remove the most experienced leaders within the Department of Justice. And I'm not talking about the political appointees. I'm talking about the career lawyers of the Department of Justice. We saw this with the blow up over the lawyers working on the Eric Adams case, quite a few of whom resigned. But there's also Denise Chung, the top prosecutor in the DCUs Attorney's officer, who resigned when she was asked to launch an investigation without any basis. The Chief Irs Council was pushed out, all the inspector generals and the different agencies, and so the lawyers in key positions who have put a premium on making sure that governments follows the law, who put an allegiance to the law first, are being removed and being replaced with the lawyers who focused on loyalty to the administration. And that to me is scary because those government lawyers play a critical role. And then what's happened over the past few weeks is that the attack has broadened out to cover the private bar, and really the elements in the private bar that are the ones that the administration used as the biggest threat, which are the major of private law firms that have a lot of resources and a lot of experience in litiating against the government. So it started with a memorandum attacking the law firm of Covington and Burwing and then expanded to two executive orders, one targeted at the firm of Perkins koe and the other targeted at Paul Weiss. And those executive orders just simply shocked me. They are astounding documents to read.
He revoked the security clearances at Covington and Berlin that he stepped it up in an executive order against Perkins Cooey and Paul Weiss. Tell us about those executive orders and is there any legal basis for them set out in the order.
So the executive orders are really attempts to take down these firms, because you know, they go far beyond revoking security clearances. They also terminate all contracts with the firms, so that if the government any arm of the government has hired the firms to do anything mose contract would end. But then the single most devastating piece of it, they require businesses that have relationships with the firms to disclose those relationships and then instruct the agent determinate their contracts with those businesses. So what that does is it strikes at the client of the firm. So what it says to the firm's clients is that if you continue to retain these firms, you will lose all your government contracts. And that, of course strikes at the heart of these firms and their business model and their basic income and ability to survive as a firm. And you asked about the legal basis for these orders, the orders cite no legal basis. Typically in executive order and the pre Trump euro we'd most often start with a recitation of what the legal basis for the order is, what the authority is, where the statutes are. These orders don't do that in any way, shape or form, and in fact, they include a lot of language that shows that the purposes of these orders are clearly unconstitutional and illegal, and just to flesh that out of it, First of all, they make claim that the basis of the order is that the administration doesn't like representations that that have been undertaken by lawyers of these firms, and so those lawyers have a right to undertake those representations. You know, the First Amendment gives them the right to both express their views. There's a right of access to the court system. These firms have no obligation to only undertake litigation and representations that President Trump approves of. And then secondly, they did this without any hearing of any kind. So these orders just came completely out of the blue. There was no hearing and opportunity for these firms to contest whatever the quote charges might be against them. And then a final element that's very concerning is that it really impinges on the rights of the clients of these firms to choose their lawyers. In our country, the basic system for regulating lawyer conduct is governed by the states and by the courts, and there are proceedings and rules about what happens when a lawyer is accused of unethical or improper conduct. Those lawyers received notice of the charges basically in an opportunity to defend themselves. Nothing like that happened in these cases, and indeed, the executive branch of the federal government. The president has no general free roaming authority to impost discipline on lawyers senilatterally, So I'm unaware of any arguments. I have trouble even thinking of an argument of how these orders can be legal.
Two firms had very different reactions to this order. There was defiance from Perkins Coohy and capitulation from Paul Weiss. Tell us first about what Perkins cooy has done, and they hired this hard charging law firm.
So Perkins Coohy responded by hiring, as you say, Williams and Connolly, which is a very well known litigation firm in Washington, DC, and immediately filed a lawsuit and sought a temporary restraining order, which the judge granted. And the judge said the executive order against Perkins could we sent chills down her spine. And to date, the government has not put in any papers defending the legality of the executive order against Perkins. Instead, the government has just sought to remove the judge, arguing that she's biased. So I don't know what the government's argument will be why the order against Perkins was legal. We haven't seen that yet Paul Weis took a very different path. Instead, the head of Paul Wise met with President Trump directly one on one. The meeting was said to be three hours long. And then President Trump and Brad carp who's the head of Paul Weiss, ironed at an agreement and President Trump withdrew the executive order. And I think there are a couple of things to really focus on here. So the biggest one is that this was a shakedown of Paul Wess, that Paul Wise. You know, there's a lot of debate now about whether Paul Weiss did the right thing by reaching an agreement with President Trump. But I think the larger picture to look at is that Paul Weis never should have been in this situation in the first place. That the White House really put Paul Weiss under an existential threat that never should have been there. So that's the single biggest thing I think to keep at the forefront of one's mind is that Paul why should not have been in this situation. I myself, I'm disappointed that it has played out this way because it firms like Paul Weiss don't push back against illegal executive orders like this, then who will so it sends a message to the legal profession that is very disheartening because the Trump administration has made plain that they're not stopping with Jess Perkins, Pooty and Paul West. They're going to continue to target firms.
I know a lot of people who were disappointed and a lot of people who were shocked that Paul Weiss caved the way it did. What do you think the message is after a firm like Paul Weiss just gives in to Trump.
So I think it really reflects the incredible power of the federal government that Trump is really harnessing here in an illegitimate ways. You know, Paul White's calculation was even when they won the lawsuit, and you can be sure they were highly confident of winning this lawsuit, it wouldn't save them because it would send the message to all their clients that do business with the federal government, to all the criminal defendants whom they are represented or being prosecuted by the federal government, that they will not get a fair treatment from the federal government as long as they're represented by a firm that the administration doesn't like. And so that's an existential threat for a firm like Paul Wite, and they never should have been in that situation. One thing that's interesting me is there are some discrepancies between the way the White House has described the agreement and the way Paul Weite has described it. Paul Weiss has really broadcast that it didn't agree to much beyond what it would ordinarily do. And if the agreement is true to the firm's values, and some of the things in the agreement, like a commitment to not accept clients and matters based on the politics and political leanings of the clients, is the value that Paul Weiss has always had and saying that they would Paul Weiss would do pro bono work on behalf of veteran's combat anti Semitism. Paul Weiss's position is that's all fine with them. They would do this work anyway. But to me, there are a couple of aspects of the agreement that I have questions about that don't strike me as business as usual. So one is Paul Weis has agreed to an audit of its employment practices by a mutually agreed expert, So that means that Paul Weiss now has to reach an agreement with the administration as to who will review their employment practices, and the administration has taken a position, particularly around issues of race and gender discrimination that is really incredibly aggressive and not at all clear that is required by law. And so that we'll see what happens with that. The audit of Paul Weis's hiring practices, who they will find whom they can reach an agreement should be the auditor. And then the second piece of language that particularly concerns me is that the commitment to do forty million dollars worth of pro bono work, it lists a couple of projects and then it says and usually agreed projects. So does that mean that Paul Weis needs to go back to the Trump administration to get approval as to whether particular pro bono representations counter don't count towards the forty million dollars. That troubles me in terms of giving the White House a direct voice in what cases Paul wise now will select the pro bono work. We'll see how it plays out. I mean, I think it's very unclear what this agreement will mean in practice, But those are some of my particular concerns with the substance of it. Of Course, the message sent by the agreement is far broader, and it's the message, as you said, that Paul Wis won't stand up to the Trump administration, than who will. And I think that that's a important question to.
Ask coming up next on the Bloomberg Law Show. In a new memo, Trump is authorizing the Attorney General and the Homeland Security Secretary to go after law firms that file lawsuits they deem frivolous, another major escalation of his assault on law firms. I'm June Grosso when you're listening to Bloomberg. The presidential memo issued on Friday is called Preventing Abuses of the Legal System and the Federal Courts. In it, President Trump authorizes the Attorney General and Secretary of Homeland Security to seek sanctions against lawyers who engage in quote frivolous, unreasonable, and vexatious litigation against the government. It's all part of Trump's escalating war against the legal system, and that includes judges, lawyers, and law firms. I've been talking to Fordham Law professor Matthew Diller, So does this new memo mean basically that any lawyers who sue the Trump administration can be.
Sanctioned the first part the language you read, I read is kind of bluster in the sense of so they will seek sanctions, but a court then has to decide or a disciplinary arm needs to then independently decide whether.
Sanctions are warranted. So it struck me, as you know, as a threat that wasn't that potent because some independent arbiter would then decide whether the sanctions are appropriate. And of course the issue has been not that so many frivolis suits are being filed against the Trump administrations, but that so many successful suits are being filed against the Trump administration. But then further down in this document there's a language that really does give me pause because below the language about referring attorneys in law firms for disciplinary action or sanctions, it says the Attorney General and the Secretary of Homeland Security are also instructed to recommend additional consequences, including reassessing security clearances or terminating federal contracts for attorneys and law firms that engage in conduct deserving of sanctions or other disciplinary action, meaning that they themselves the Attorney General and the Secretary of Homeland Security are are supposed to decide whether the conduct is deserving of a sanction rather than waiting to see others thanks and issues. And so this is an authorization due to other firms and attorneys what the administration has done to Paul Weiss into Perkinscuies and presumably in the future we need not see presidential executive orders doing it. We will see the Attorney General doing it, and in the Secretary of Homeland Security. And so this is a way of taking those examples and really spreading them across the profession, and that troubles moved tremendously. The other thing that's interesting about the documents that came out Friday is it really targets both big law firms but then also lawyers who work on immigration, and of course immigration, you know, the top priority of the administration, and its actions in the area of immigration have been some of its most controversial and most contested in terms of their legality. And so this really is an attempt to strike at the immigration bar that's pushing back on the Trump immigration initiatives.
What do you think this means for future litigation against the Trump administration. Are we only going to see organizations like the ACLU and public advocacy groups suing the Trump administration?
I think this will have a shilling aspect on big law firms taking very controversial cases that are going to be high profile. I think that's unfortunate. I think that's you know, one of the functions of the legal profession is to bring issues to the courts for resolution. That's how our rule of law works, and so putting them in a position where they feel threatened and in timidated not to do that is very troubling. And so then it does leave the work to public interest organizations places like the ASLU, And they have their own vulnerabilities because first they're much smaller, but then seconds they're entirely dependent on philanthropy, and the administration can put the squeeze on them too in different ways. And so we haven't seen that, but we may see it, and so that's something to be concerned about. The last group of lawyers who are very important are state attorney generals, and state attorney generals have really risen to the challenge, particularly the attorney generals who are Democrats. Right They're out there bringing challenges to the most contentious Trump policies. And many of the cases that have been most successful have been brought by attorney generals. But Attorney generals are also limited in what they can do because they're briefs. Their charge is to represent the state. To bring a case, they have to show that some entity or arm of the state government has been affected by the policy. And so we can expect and we're already seeing pushback from frump from the Trump administration about whether attorneys generals has standing to bring some of the cases they've been bringing.
All the legal experts seem to agree that Perkins Koi is going to win its lawsuit against the Trump administration, but explain the damage that's already being done to that law firm.
Perkins Cooy is already suffering damage from the executive order and will suffer damage even though it's likely to win the case. And that's because some clients will think twice about going to a law firm that the administration has declared to be an enemy. The executive Order essentially declared Perkins Cooi to be an enemy of the Trump administration. And if you are an individual or a company that has business under the federal government or that is under investigation, you're going to think twice about choosing a lawyer whom you know the federal government hates. Are you going to get the same kind of flea deal? Is the investigation going to be conducted in the same way? You know, it's natural the clients would ask those questions when they're deciding what lawyers to retain, and so that's the harm that Perkins Coolie will suffer, whether or not a winded case.
This attack on law firms, does it seem like it's well planned and maybe years in the making.
I think, you know, the attack on law firms, we reflect years of grievances against law firms, since some of the things that the administration has cited in the executive orders, you know, date back years. So I think it reflects a grievance that has been festering for years. And I do think it's part of a larger strategy. You know, it goes with the attack on the judges and the judiciary to try and just shut down litigation against the Trump administration. Since Congress has been relatively accommodating to the administration, it's really the courts that have pushed back the most, and therefore the administration is focused on attacking judges and now on attacking lawyers because if lawyers won't bring the cases, then the judges never even come into play.
What's the best strategy for lawyers now, I mean, what should they do?
So a couple of things. So first, I do think lawyers should come together to fight these policies and these actions. And so I do think the law firms of the United States should indeed back up workinscoy, which they've been reluctant to do. They've been intimidated by the administration. And it's the kind of situation where there's safety in numbers. Any one firm is isolated, but to do it in numbers, to respond in numbers would really bring much more power. And then the second, I think the judiciary should take a strong stand on it. So the person's coopy case when it does get decided, if it does get decided, I think the judiciary should really make a strong statement about just how egregious and outrageous the government's conduct is.
Here.
In the end, this is all about Trump getting retribution, something that he promised over and over in the campaign.
You know, retribution is backward looking, and so it is indeed restribution, you know, payback, but it's also forward looking. You know, it's also designed to intimidate lawyers and law firms into thinking twice, three times, four times before going up against the administration.
We'll see how it plays out. Thanks so much for joining me on the show, Best Professor, Matthew Diller, a Fordham Law School. President Donald Trump and his administration launched an attack on DC federal Judge James Bodsburg last week, with Trump calling him a radical left lunatic of a judge, a troublemaker, and an agitator and calling for his impeachment. With Trump's borders are Tom Holman saying he didn't care what the judge said.
I don't care what that judges.
Thankers virus case.
We're going to continue to arrest public safety threats and national security threats.
We're going to continue to deport for the United States, and.
With the Attorney General of the United States, Pam Bondy saying the judge didn't have the authority to make rulings in the case.
This judge has no right to ask those questions. You have one unelected federal judge trying to control foreign policies, trying to control the Alien Enemies Act, which they have no business presiding over.
The nature of the attacks. Led Chief Justice John Roberts to issue a rare rebuke, making it clear that impeachment is not the avenue for disagreement with a judge's order. Well, Judge Bosburg, the well respected chief judge of the Federal Court in DC with twenty three years on the bench, didn't back down, and today he reaffirmed his ruling blocking the Trump administration from using a wartime law to deport alleged Venezuelan gang members to El Salvador. The legal issue at the heart of these hearings is Trump's unprecedented use of the Alien Enemies Act of seventeen ninety eight to deport hundreds of alleged Venezuelan gang members without giving them any hearings. The law has been used only three times in US history, and that was during declared wars. Joining me is Bloomberg Legal reporter Eric Larson. Judge Bosburg ruled his temporary order will remain in effect and that the Trump administration can't keep deporting Venezuelans under that act.
Explain his reasoning, so, the judges reasoning was that the harms that the plaintiffs were alleging that he found was valid for the purposes of that temporary restraining order still existed. He said that nothing had essentially been presented to change his mind that the tro wasn't necessary, and it really all boiled down to the judge's continued contention that these individuals deserve to have some sort of due process before they can be deported, that they need to be able to argue that they are not in fact members of that violence that isuel As gang. And we know that the plaintiffs in the case have argued that they're not, and many of the other individuals who have already been deported, some of them were making the same claims too, that they weren't members of the gang, that they had been swept up for other reasons. So the judge says that at the end of the day, in his view, they deserve to have a hearing and cannot just be summarily deported in this way.
Did he make any ruling on Trump's power to invoke the Alien Enemies Act?
You know, he didn't. He said that at this stage he wasn't going to make a ruling whether or not any judge could rule on this. You know, Trump has said that no one in the judiciary can question his use of this act. Whether or not the Act is being properly invoked? Is the question here? Are we in a state of war? Is there an invasion of the United States? You know, these are things that eventually we might have arguments over whether or not it was properly invoked. But the judge said, for the purposes of this ruling, what matters is that, assuming that it was properly invoked, you still have to give some sort of chance for these individuals to argue that they aren't actually Part of this game is.
Whether Trump can invoke the Alien Enemies Act. Is that what the oral arguments in the DC circuit are about today.
I think they'll be focusing on all of the arguments. I don't know which one, you know, the panel of appellate judges will will focus on. But it seems to me that just for the purposes of today's hearing whether or not to stay that tro that judges might be looking more closely at these claims that these plaintiffs are not actually members of the gang, because arguably, if Trump can invoke this law, the Alien Enemies Act, he could deport members of the gang without having to go through the usual immigration processes. But really it's a matter of proving whether or not they're actually part of the gang. So Judge Bozberg said that that was their strongest argument so far, and.
He pointed out something that immigration lawyers have been pointing out to me, which is that if they are gang members, they're already subject to deportation as being a member of a foreign terrorist organization. They don't need the Alien Enemies Act, right.
This Venezuelan gang is a known violent gang. It is real, it is dangerous, it's been declared a terror organization, and under the usual immigration laws, they can be deported, as you said, and the judge pointed that out in his decision to said, nothing in his pro prevents the government from deporting these gang members or even from rounding the month and attaining them. It really is just, in the judge's view, this narrow issue about unilateral deportation without any chance to argue that they're not a member of the gang. That is what it boils down to.
So tell us about this extraordinary standoff last week between government lawyers and Boseburg over information that he wanted about the flight times. I don't know if he ever got that information.
You know, I don't believe that he's gotten all of his questions answered, and I think that's still very much a live issue here in it. It may show up and more of these court proceedings as the case progresses, but you know, there is a possibility that the judge could find that the government openly ignored his court orders. The government doesn't believe that the judge has any rights to interfere as they see it in this process at all. So in his order to judge reiterated it is concerned about when the flights had taken off and said that in his view, the only reasonable way to look at the details of what happened was that the government was intentionally trying to rush these men onto the plane to just get them in the air before an order could be issued.
What seems ludicrous to me is that several news organizations have already tracked down the flights when they left and when they landed, so it's sort of in the public record. Yet the government is refusing to hand over the information so far.
I think that sums it up. I think that not just the details, I think the judge also wants to get a specific explanation as well, to get to the bottom of whether someone made the call to ignore the order.
Is this the last thing happening in Judge Bozburg's courtroom? Are they going to continue?
My expectation is that they're going to request the preliminary injunction, something that would last much longer than the tro The judge's decision today essentially invited the plaintiffs to make such a request, and based on his findings so far, I think it seems clear he's pretty open to issuing an injunction which would prohibit the government long term from unilaterally deporting these alleged gang members without giving them a chance to prove that they're not part of the gang. So I think that we'll see plenty more going on in his courtroom.
We have a new interim US Attorney for New Jersey. Tell us who Alena Habba is.
So, Alena Habba is a lawyer from New Jersey. Most recently she's been counselor to the President and then she is now going to become, as you said, the US attorney for New Jersey. But she's known Trump, I believe since around twenty twenty one. She was a member of his Bedminster golf Club in New Jersey. She met him there. She'd been doing some legal work for other members there and they had referred her to him. He had a lot of litigation going on. She took over some of the cases that others were working on. He wanted someone who was more aggressive, and so she took over a case involving some reservos who had accused him of sexual assault. She went on to take over his representation in the New York Attorney General's investigation into the Trump Organization for fraud, and then of course she went on to represent Trump in the lawsuits filed by EA Gene Carroll. So she a lot. She's did a lot of work for him in the years before his November election victory. He lost those big cases and they're being appealed, but he didn't blame PABA for that and blamed the system. And of course when he won the election, he picked her to be counselors of the President and now enter on the US Attorney for New Jersey.
She has no criminal experience whatsoever. That's Todd Blanche and Emil Beoufe also lost his cases, yet they're in among the highest positions and the justice departments.
I think what he's looking for in these high level legal positions. As president, he's looking for loyalty and looking for how hard these lawyers fought for him in court, sometimes to their own detriment, so that would seem to be what he's looking for. I think that's true for a lot of the positions all throughout the government and the White House. So they really did go to that for him. And we know that Trump does blame, as he described it, bias judges, bias juries. You know, he doesn't blame the lawyers for the outcomes of these cases.
Because she's been named as the interim US attorney, she doesn't have to be confirmed by Congress.
That's my understanding, and I have no idea how long she'll be in this position either, so remains to be seen.
Yeah, I believe he's chosen several US attorneys in the interim category, which you used during his first administration as well. Thanks so much, Eric. That's Bloomberg Legal reporter Eric Larson, and that's it for this edition of The Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law podcasts. You can find them on Apple Podcasts, Spotify, and at www dot Bloomberg dot com. Slash podcast slash law, and remember to tune into The Bloomberg Law Show every weeknight at ten pm Wall Street Time. I'm June Grosso and you're listening to Bloomberg
