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THE NEW “BLACKLISTS” WORK WHEN LAW FIRMS STAY SILENT  
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Andrew Weissmann
March 24, 2025
Just Security
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_ The legal profession cannot afford to remain silent. Lawyers —
especially those in positions of influence — have a responsibility
to represent those being victimized and to speak up. Not to
accommodate. _

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In a recent internal memo
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Brad Karp, the chairman of Paul, Weiss, Rifkind, Wharton & Garrison,
defended the firm’s refusal to challenge a presidential executive
order
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the entire partnership. He suggested that to do so would violate a law
firm’s ethical duty to its clients, by damaging the firm’s
relationship with the administration in power. And lest one judge too
harshly, Karp offered that critics can’t appreciate what it’s like
to be targeted by a presidential executive order until it happens to
them.

I do appreciate the difficult situation.  I have been the subject of
such an executive order
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know what it feels like when the immense power of the presidency is
used to harass and intimidate. The right response is not appeasement
or silence —especially when the executive action
is unconstitutional
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violative of the First Amendment. Capitulation serves as a clarion
call to further such improper action by this administration, and a
permission structure to other firms to follow this path of least
resistance.

What makes this moment so devastating to those in the legal profession
– and with far-reaching ramifications to our entire legal system —
is that Brad Karp and other lawyers at Paul, Weiss are among the
finest in the country. I know first-hand that they are brilliant,
accomplished, ethical, and deeply experienced. That’s what makes the
firm’s act of institutional appeasement so ruinous. If those with
the most professional capital and credibility won’t take a stand
when constitutional principles are under threat, who will?

Karp’s memo, while couched in the language of professional ethics,
carries a subtext that should concern every lawyer and citizen who
values the independence of the legal profession: that maintaining
particular clients is more important than defending your firm’s
lawful actions on the merits and speaking out against improper
behavior on the part of the administration, even in the face of
government action that has been found by a federal court to be
unconstitutional. In the Perkins Coie case, another firm targeted by
Trump in an executive order, which was litigated only a few weeks
earlier in the same jurisdiction, the stakes were stated clearly:
“The chilling effect of this executive order threatens to undermine
our entire legal system and the ability of all individuals to access
justice in the American judicial system,” Judge Beryl Howell said
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And Karp’s argument that the firm had “first and foremost” a
duty to its clients to maintain good relations with the administration
is hard to swallow.  Tell that to all the firm clients suing the
government or being sued by the government. Indeed, law firms
routinely sue the federal government. They represent clients who
challenge executive overreach, regulatory enforcement, and
constitutional violations. And they take on, as they have a right to,
pro bono work that can be highly partisan. And, of course, law firms
routinely represent people and companies sued _by_ the government.

That adversarial posture is not a deviation from legal ethics —
it’s a fulfillment of them. Indeed, it is necessary if a society is
to be capable of upholding the rule of law.  Is Karp suggesting his
peer law firms like Perkins Coie violated their duties to their
clients by their ability to have access to the legal system regardless
of whether they are being sued by or are suing the government? Or for
vindicating the company’s First Amendment rights in court?

In a functioning democracy, lawyers serve the law first, not the
preferences of those in power. Just last year, the far right was
deploring the Biden administration’s efforts to bludgeon private
sector actors into curtailing their actions and speech—that resulted
in a Supreme court decision in _Murthy v. Missouri_ that affirmed
the legal principle that our government cannot do so, but found a lack
of evidence that the Biden administration was engaged in such
conduct.  Now that Trump is in office, the shoe is on the other foot,
and such browbeating is the coin of the realm.

The forces behind the _Murthy_ lawsuit against the Biden
administration’s alleged overreach were not cowed into submission,
nor should they have been to the extent that they sought to vindicate
a good faith legal and factual claim. Nor was Perkins Coie cowed when
it successfully challenged the current administration’s unlawful and
improper actions.

There is a sad and long history in this country of people and
institutions choosing Karp’s path, one of least resistance, in
moments of crisis. During the McCarthy era, many rationalized their
complicity in enforcing blacklists and loyalty purges as fiscally
prudent, or were simply too afraid to speak out and be the next victim
of oppressive government actors. Paul, Weiss, it must be remembered,
is one such victim of a new era of blacklisting.

But the legal profession cannot afford to remain silent. The threats
to the rule of law, if not to our democracy, are not theoretical. We
have seen efforts to undermine elections, to use the law as a tool of
retribution, to erode foundational constitutional protections. In such
times, lawyers — especially those in positions of influence — have
a responsibility to represent those being victimized and to speak up.
Not to accommodate.

Whether the market will punish Paul, Weiss for its chosen path,
through clients pulling or not referring business, or through loss of
young or old talent, remains to be seen. But even if it bet correctly
for now, one thing is for sure. As Benjamin Franklin remarked, in the
face of impending tyranny, “we must all hang together, or, most
assuredly, we will hang separately.”

_Editor’s note: This piece is part of the Collection: Just
Security’s Coverage of the Trump Administration’s Executive
Actions
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_Readers may also be interested in Rebecca Hamilton, The Imperative
of Solidarity in Response to Assaults on Legal Services, Universities,
and Independent Media
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_Andrew Weissmann (Bluesky
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Editors of Just Security and a Professor of Practice and Distinguished
Senior Fellow at the Reiss Center on Law and Security and at the
Center on the Administration of Criminal Law at NYU School of Law. He
served as a lead prosecutor in Robert S. Mueller’s Special
Counsel’s Office (2017-19) and as Chief of the Fraud Section in the
Department of Justice (2015-2019)._

_During his previous tenure at NYU Law (2013-2015), Weissmann was a
Senior Fellow at both the Reiss Center on Law and Security and the
Center for the Administration of Criminal Law. He taught courses in
national security and criminal procedure._

_From 2011 to 2013, Weissmann served as the General Counsel for the
Federal Bureau of Investigation._

_Just Security [[link removed]] is an online
forum for the rigorous analysis of security, democracy, foreign
policy, and rights. Founded in 2013, we aim to promote principled and
pragmatic solutions to problems confronting decision-makers in the
United States and abroad. Our expert authors are individuals with
significant government experience, academics, civil society
practitioners, individuals directly affected by national security
policies, and other leading voices. Our Board of Editors includes a
broad range of leading experts on domestic and international law and
policy. Just Security is based at the Reiss Center on Law and Security
[[link removed]] at New York University School of
Law._

* Andrew Weissman
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