by Charles Siegel
“The first thing we do, let’s kill all the lawyers” is one of Shakespeare’s most famous lines. It lives on, four centuries after it was written, on countless t-shirts and coffee mugs. People who have never read another word of Shakespeare know the line well, and think that Shakespeare hated lawyers and that his audiences hated them too. That facile reading, however, is wrong.
Shakespeare used lawyers frequently, as both a plaintiff and defendant, and moved freely in legal circles. His first residence in London was near the Inns of Court, where affluent students lived and studied law, and he had friends and relatives in the Inns. It thus seems unlikely that Shakespeare hated lawyers or held them in contempt. But it is the context in which “let’s kill all the lawyers” appears that most tells us what it really means.
The line is spoken by Dick the Butcher, the henchman of Jack Cade. In Henry VI, Part 2, the boy king has returned from France, and rival factions from the Houses of York and Lancaster are struggling for power. The Duke of York hires Cade, a commoner, to foment rebellion. Cade tries to rouse a crowd of people, and Dick chimes in:
JACK CADE: Be brave, then; for your captain is brave, and vows reformation. There shall be in England seven half-penny loaves sold for a penny: the three-hoop’d pot shall have ten hoops; and I will make it felony to drink small beer: all the realm shall be in common; and in Cheapside shall my palfrey go to grass: and when I am king,– as king I will be,–
ALL. God save your majesty!
JACK CADE: I thank you, good people:– there shall be no money; all shall eat and drink on my score; and I will apparel them all in one livery, that they may agree like brothers, and worship me their lord.
DICK: The first thing we do, let’s kill all the lawyers.
Shakespeare is saying that lawyers are what stand between order and chaos, between respect for individual rights and mob rule. Supreme Court Justice John Paul Stevens agreed, writing in a 1985 opinion that “a careful reading” of the scene that shows that “Shakespeare insightfully realized that disposing of lawyers is a step in the direction of a totalitarian form of government.”
Today Donald Trump and his minions aren’t trying to kill lawyers. But he does seek totalitarian government, and he certainly wishes to dispose of lawyers, and the rules and norms, the rights and processes, that they guard.
Cade’s lines read today like nothing so much as one of Trump’s Truth Social posts, bleated out at 1:38 a.m. on a Wednesday. And Dick the Butcher is now played by Boris Epshteyn, the apparatchik previously indicted for fraud and for his role in challenging Trump’s 2020 election loss. Epshteyn appears to be a moving force behind the executive orders Trump has issued against leading law firms, and he negotiates with firms that shamefully supplicate themselves before Trump to escape them.
The first such order was issued in late February against the firm of Covington & Burling, which had provided free legal services to former special counsel Jack Smith, who had prosecuted Trump. The next one, issued on March 6 against the firm of Perkins Coie, which had represented a number of Democratic political campaigns and entities, significantly upped the stakes. It purported to find that “the dishonest and dangerous activity” of the firm “has affected this country for decades.” It stated that “in addition to undermining democratic elections, the integrity of our courts, and honest law enforcement, Perkins Coie racially discriminates against its own attorneys and staff and against applicants.” The order directed that all security clearances for Perkins Coie personnel be suspended immediately, that government employees be limited from engaging with Perkins Coie personnel, and that “to prevent the transfer of taxpayer dollars to federal contractors whose earnings subsidize, among other things, racial discrimination, falsified documents designed to weaponize the Government against candidates for office, and anti-democratic election changes that invite fraud and distrust,” any company represented by Perkins Coie could have its contracts with the government reviewed and cancelled.
This is hardly a hypothetical concern for Perkins Coie or firms like it. One of its major clients is Boeing (like Boeing, Perkins Coie started in Seattle). Boeing of course sells billions of dollars worth of aircraft and weapons systems to the government every year. Would Boeing now have to fire its longtime lawyers just to keep those contracts? And if a Perkins Coie lawyer can’t enter the Pentagon, or even a federal courthouse, how can it represent Boeing in its dealings with the government or in lawsuits? The orders are serious threats to such firms.
Next came Paul Weiss, another iconic establishment firm. The order against the firm cited an unnamed partner who had filed a lawsuit against January 6th rioters, and Mark Pomerantz, a former partner who had assisted the Manhattan district attorney in his successful felony prosecution of Trump for his hush-money payments to Stormy Daniels.
Needless to say, such transparently vindictive orders are utterly unprecedented, and absurdly, ridiculously unconstitutional. Any first-year law student would know this. For starters, they violate the First Amendment by retaliating against the firms for their advocacy for certain clients, by discriminating against the firms’ advocacy activities on the basis of viewpoint, and by cutting off the firms’ rights to petition the government and to freely associate with clients. The orders also deny the firms due process by harming their reputations, interfering with client relationships and affecting their ability to practice their profession. And since, as the Supreme Court put it, “an informed, independent judiciary presumes an informed, independent bar,” and thus “the government may not effect a serious and fundamental restriction on the advocacy of attorneys and the functioning of the judiciary,” a cowed, servile bar places the judiciary below the other branches and thus destroys our very constitutional structure.
One would have expected these firms – the pinnacle of the legal profession, the firms that so many law school graduates are dying to work for – to reject these comically improper orders out of hand and to challenge them in court. But by and large, that hasn’t happened. Paul Weiss caved, promising $40 million worth of free legal work. In total, nine firms have made such deals, committing to donate an astonishing $940 million worth of free legal services.
What do these agreements require? Some of the firms have been at pains to state that they merely have committed to do pro bono work for a variety of clients and causes, which is “what they’ve always done.” Milbank, a firm founded in 1866 that eventually became known as Milbank, Tweed, Hadley & McCloy — it is impossible to imagine a more blue-blood New York law firm name – and that represented the Rockefellers for decades, stated that it only made commitments it was always “happy to make.”
But Trump will always want more, and he will always want to humiliate. Recently, he mused that the firms might be put to work negotiating deals for coal companies, and remarked that “a lot of law firms have been signing up with Trump… A hundred million dollars, another $100 million, for damages that they’ve done. But they give you $100 million, and then they announce that ‘But we’ve done nothing wrong.’ And I agree, they’ve done nothing wrong, but what the hell, they give me a lot of money considering they’ve done nothing wrong.” Aside from the fact that this statement makes no sense – Trump refers to “damages that they’ve done” but agrees that the firms have done nothing wrong – what does it mean for a firm to have “signed up” with Trump? Does he believe that each of these firms now represents him, and has pledged $100 million in free legal work for him as he directs? Karoline Leavitt, the White House press secretary, stated that the firms had “committed to hundreds of millions in pro bono work and other free legal services” that should be put to the “best uses” for the American people. Will Milbank now have to defend the administration in the many suits challenging its ruthless, callous deportation efforts? Will Paul Weiss be put to work defending the gutting of environmental regulations?
The picture is not entirely bleak. Some firms have refused to kiss the ring and are fighting back. Four firms have thus far challenged these orders in court. The first was Perkins Coie; then came Wilmer Hale and Jenner & Block. Most recently, Susman Godfrey, a firm that is much smaller than the other targeted firms, but that is nonetheless a leader in the legal community and generally regarded as the best trial firm in the country, refused to bend as well.
What had Susman Godfrey done to incur Trump’s insatiable wrath? It had represented the Secretary of State of Arizona, and the Governor of Wisconsin, in the aftermath of the 2020 election. It had also vigorously and very successfully represented Dominion Voting Systems in its suit against Fox News for defamation, over Fox’s lies about the company’s voting machines in connection with that election, and Fox had paid $787.5 million to settle that claim. Susman Godfrey also represents Dominion in its ongoing suit against Newsmax, which likewise lied repeatedly about Dominion after the election. In what can hardly be a coincidence, on the same day the executive order against Susman Godfrey was announced, the firm obtained summary judgment in Dominion’s favor against Newsmax, with the court holding that its statements were false and defamatory as a matter of law.
The executive order says nothing about any of this, of course. Instead, it pronounces that “action is necessary to address the significant risks, egregious conduct, and conflicts of interest associated with Susman Godfrey LLP. Susman spearheads efforts to weaponize the American legal system and degrade the quality of American elections. Susman also funds groups that engage in dangerous efforts to undermine the effectiveness of the United States military through the injection of political and radical ideology, and it supports efforts to discriminate on the basis of race.” What can that even possibly mean? At the hearing on Susman Godfrey’s motion for a temporary restraining order, the government’s lawyer could offer no explanation.
The firm immediately issued statements saying that “anyone who knows Susman Godfrey knows we believe in the rule of law, and we take seriously our duty to uphold it. There is no question that we will fight this unconstitutional order. No administration should be allowed to punish lawyers for simply doing their jobs.… This goes far beyond law firms and lawyers. Today it is our law firm under attack, but tomorrow it could be any of us.” This was no surprise at all – anyone familiar with the American legal landscape would have known the firm would react as it did. But it was also gratifying to me on a personal level.
The firm was founded by Steve Susman, a second cousin of mine. Growing up in Houston, I was aware of his star status, both in our family and already as a young lawyer. My parents were close friends with Steve’s mother, who herself was a prominent lawyer in Houston in the 1940s and 1950s, a time when relatively few women practiced law in Texas at all. If memory serves, she was the first female lawyer to argue before the Texas Supreme Court.
Steve was a force of nature inside and outside the courtroom. He died of Covid in 2020 at 79, having contracted the virus while recovering in the hospital from a biking accident. I know how offended he would have been at these egregious orders, and how determined he would have been to fight them. I was not surprised at all, and very proud, that his firm fought back.
And the firms that are fighting are winning. So far, all four of them have obtained temporary restraining orders. Most recently, on April 15th the judge in the Susman Godfrey case held that the order “specifically targets lawyers because of the clients that they represented. It is based on a personal vendetta against a particular firm… The framers of our Constitution would see this as a shocking abuse of power.”
One hopes that more firms will begin to fight back as well. If not, we will have reached a very dark place indeed. Just a few years before Steve was born, another butcher recognized that for his malign plans to succeed, lawyers and judges had to be made compliant. Hitler knew it was essential to have the support of lawyers and judges as the Nazis consolidated power.
This went beyond simply forbidding Jews to practice law; the legal system was to be “coordinated.” The Reich’s Ministry of Justice instructed lawyers to “march as an army corps of the Fuhrer.” As Professor Cynthia Fountaine has written, “Hitler’s vision for the legal system was one turned on its head, where lawyers’ professional obligations were shifted from client to state and in which the applicable law was whatever he wanted it to be.” These orders aim to effect just such a shifting of obligations.
One hopes that the abject surrender of Paul Weiss did not begin such a process. The name of the firm, which was founded in 1875, eventually became Paul, Weiss, Rifkind, Wharton & Garrison. Simon Rifkind was a noted federal district judge, who also advised President Eisenhower on Jewish affairs in Europe during World War II. The firm was the first major New York firm to have a female partner and to hire a Black associate. Over the decades it has represented everyone from one of the Scottsboro Boys to Guantanamo detainees.
Two of Rifkind’s granddaughters, both lawyers themselves, wrote a letter to the firm’s managing partner. They decried his “selective quotation,” in his memo to the firm explaining its surrender, of their grandfather’s 1963 “Statement of Principles” for the firm, noting that his “touchstone” was “in all things to govern ourselves as members of a free democratic society with responsibilities both to our profession and our country.” They thought it plain, “as it would have been to our grandfather, that taking action to stay off an enemies list does not advance the rule of law as embodied in the Statement of Principles, it undercuts it and emboldens those who seek to dismantle it.” Finally, they lamented that “neither our grandfather nor his colleagues would have negotiated a truce for themselves when the rest of the profession remains under threat for doing its jobs as lawyers….”
They are, of course, desperately, piercingly right. Simon Rifkind, knowing as he did exactly how Hitler bent the German bar to his murderous project, would have been ashamed of his firm today. Steve Susman, at least, would have been proud of his.