“Let’s Kill All the Lawyers”: Trump’s EOs in the Spirit of Bills of Attainder

Whatever its faults (and there are more than a few), “the rule of law” underpins democracy as a bulwark against authoritarianism. It is not only the system of laws that does this, but the actors who are most closely aligned with ensuring that the rule of law works: the judges and lawyers.

Nothing makes the intent of creating an authoritarian system more evident than undermining the judiciary and lawyers. That the judiciary must be independent is well-known. Less so lawyers.
The well-known phrase from William Shakespeare’s Henry VI, Part II, Act IV, Scene II, “the first thing we do is, let’s kill all the lawyers” has been interpreted in several ways. (On different interpretations, see Olivia Rutigliano, “What did Shakespeare mean when he wrote ‘let’s kill all the lawyers?’”, The Literary Hub, January 25, 2023).

Some people think lawyers are good only for maintaining the powerful and killing them would constitute a first step to overthrowing those in power. Those who think lawyers are sharks are happy to quote it as something they’d like to do (until they need a shark).

More broadly, though, it means that those who seek to upend the rule of law know they need to “kill all the lawyers” because lawyers help to maintain the rule of law. Rutigliano quotes former Supreme Court Justice John Paul Stevens: “Shakespeare insightfully realized that disposing of lawyers is a step in the direction of a totalitarian form of government.”

There is more than one way to “kill the lawyers”. Dick the Butcher in Henry VI meant it literally, that is, physically kill the lawyers. President Donald Trump’s lawyer hunting is of another kind: limit their capacity to practice law and indirectly to make their clients have second thoughts about retaining these firms. And if you can convince people that these lawyers and law firms, as well as others yet unnamed, have abused the legal system, you have a good chance of undermining the entire system.

Furthermore, although I’m not speaking of threats to judicial independence explicitly here, the undermining of lawyers and judges go hand in hand. And as Trump has moved from primarily attacking individual judges to attacking the system of judicial review itself, he has also opened another flank on the war against the rule of law: the incursion into the legal profession. Again, this far exceeds the nastiness he exhibited against individual lawyers such as Jack Smith, the independent prosecutor who was responsible for bringing criminal cases against Trump in relation to the riot at the Capitol on January 6, 2021 and Trump’s mishandling of confidential documents.

In the whirlwind of activities that have occurred since the beginning of Trump’s second term, nearly ten weeks as of this writing, he has taken several actions against law firms, using one of his favourite weapons, executive orders.

Among other restrictions, between February 25th and March 27th, Trump suspended the security clearances of lawyers at five large law firms, pending review, along with other sanctions, such instructing agencies not to interact with the firms’ clients.

His reason, although not the one he gives, for targeting these firms is the realization of his promise during his campaign: “’I am your warrior, I am your justice,’ Trump said in a nearly 90-minute speech [at Waco during his first 2024 rally], most of it focused on perceived political enemies and slights. ‘For those who have been wronged and betrayed … I am your retribution.’” (The Texas Tribune, March 25, 2023)

Much of the retribution he has exacted to date has been on his own behalf; certainly this is the case with respect to the law firms, as a quick and incomplete review of the reasons his EOs have identified for imposing sanctions (another reason is his battle against “DEI”). This focus on individuals or entities is an echo of bills of attainders, often used by tyrannical monarchs, such as Henry VIII, against those who had offended them. And, after all, Trump has called himself a “king” (New York Times, February 19/23, 2025). (I discuss bills of attainder below.)

In each case, the EO makes an explicit nexus with individuals or firms who acted in law suits against him or in support of issues, such as DEI, that he is determined to eliminate.

A Covington Burling lawyer represented Jack Smith in lawsuits Republicans have brought against him and had also provided pro bono services to Smith in his capacity as special prosecutor as he brought criminal cases against Trump relating to January 6, 2021 and Trump’s mishandling of confidential documents that he took when he left office and failed to return when requested by the National Archives and Records Administration. (The Memorandum Trump signed is directed at that lawyer and those who assisted him.)

Perkins Coie represented Hillary Clinton in 2016 and hired Fusion GPS, which produced “the Steele dossier”, a controversial review of Trump and Trump campaign’s connections to Russia, described in the EO as “designed to steal an election”; it had been leaked, with its author explaining the allegations against Trump were unverified. Perkins Coie had also been retained to challenge certain voting laws.

Paul, Weiss, Rifkind, Wharton & Garrison LLP (Paul Weiss)’s “dishonest and dangerous” activities included working for Democrats and running afoul of Trump’s anti-DEI efforts. One of the other “bad” things the order identifies that Paul Weiss did was to provide pro bono services to the Washington DC attorney general suing January 6th rioters (to be clear, the order does not refer to “rioters” but to “individuals participating in the events”).

The EO against Jenner & Block refers to the firm’s representing transgender women and illegal aliens (the firm, states the EO, “backs the obstruction of efforts to prevent illegal aliens from committing horrific crimes and trafficking deadly drugs within our borders”). Jenner Block also hired Andrew Weissman, who served as a prosecutor for Robert Mueller’s investigation into Trump during his first term.

Wilmer Cutler Pickering Hale and Dorr LLP (WilmerHale) had hired Robert Mueller and others involved in Mueller’s investigation of Trump in the latter’s first term, an investigation the EO describes as “one of the most partisan investigations in American history”, which “epitomizes the weaponization of government”. (A partner of then Hale and Dorr during the 1950s had represented the Army during the 1954 Army-McCarthy Hearings, Joseph Nye Welch. It was Welch’s “Have you no decency sir, at long last? Have you no decency left?” that was the beginning of the end of Joseph McCarthy’s pursuit of communists that had resulted in the end of people’s careers. Fun fact: McCarthy’s lawyer for the hearings, Roy Cohn, became a mentor for the young Donald Trump.)

In all these cases, as a result of the executive orders, the law firms would effectively lose security clearances and government contracts (officials were also to review contracts entities have with the firm to see whether they conform with the goals of the administration). Clients, existing and new, would be wary of retaining them. Both Perkins Coie and Paul Weiss were also the target of a memo sent by a Senate staffer to Senate Republican offices that included the names of the firms’ lobbying clients, with the idea that Senate offices should think twice about whether they are responsive to these clients (see Politico, March 24, 2025).

On March 22nd, a different kind of Presidential Memorandum, “Preventing Abuses of the Legal System and the Federal Court”, directed the Attorney General “to seek sanctions against attorneys and law firms who engage in frivolous, unreasonable, and vexatious litigation against the United States or in matters before executive departments and agencies of the United States”, to refer for disciplinary action lawyers whose conduct in Federal Court (and elsewhere governed by federal rules) appears to breach rules of conduct and to recommend to the President other action, such as reassessment of security clearances and Federal contracts and to investigate firms for conduct in litigation with the Federal government over the past eight years.

Three firms, Perkins Coie, Jenner and Block and WilmerHale, filed suit against the EOs relating to them. They were successful in temporarily blocking aspects of the orders against them (NPR, March 28th). In the case of Perkins Coie, the Department of Justice (unsuccessfully) sought the recusal of the judge assigned to the case, Judge Beryl Howell, who issued a temporary bar to certain parts of the EO, a limitation Perkins Coie requested in order to address the more significant parts first. Judge John Bates held that the Jenner and Block EO “violat[ed] … the free speech guarantees of the First Amendment and [was] an unconstitutional interference with the rights of its clients to select lawyers of their choosing”. Judge Richard Leon called the EO against WilmerHale “a constitutional harm”.

The EOs limited the firms’ speech and provisions that the government agencies not work with clients of the firms threatened the firms’ existence. Judge Leon stated, “There is no doubt this retaliatory action chills speech and legal advocacy, and that is qualified as a constitutional harm.” However, provisions relating to national security were within the purview of the executive. (For the judicial responses, see CNN, “Judges block Trump executive orders targeting law firms tied to Mueller probe”, March 28, 2025). According to CNN, the judges said, “core constitutional protections are likely violated by the orders – for people and companies to choose their own attorneys and for firms to be shielded from political retribution because of their speech.”

However, two firms reached agreement with Trump: Paul Weiss and a firm that had not yet been targeted, Skadden, Arps, Slate, Meagher and Flom (“Skadden”).

In an EO entitled “Addressing Remedial Action by Paul Weiss”, Trump stated, “Paul Weiss indicated that it will engage in a remarkable change of course.” The firm agreed to do $40 million worth of pro bono work for particular clients or issues (“including assisting our Nation’s veterans, fairness in the justice system, and combating anti-Semitism; and other similar initiatives”). On their face, these “causes” do not seem far different from some of those Paul Weiss worked for previously, but the firm has inferentially put itself under Trump’s control. Trump also said that the firm “has acknowledged the wrongdoing of its former partner Mark Pomerantz”. With this agreement, Trump revoked his previous EO.

Brad Karp, the chair of the firm, sent a firm-wide email to explain why he settled with Trump (see Karp’s email on David Lat’s substack): in particular, that the EO could have “destroyed” the firm; “clients perceived [the] firm as being persona non grata with the Administration”; and the firm needed to protect the employees’ employment. His view of the agreement differed from Trump’s. In particular, he did not refer to Pomerantz, who had left Paul Weiss in 2021 to go to the Manhattan district attorney’s office, where he had been involved in developing a criminal case against Trump, a case which did not proceed. There were other differences. (On this point, see Huff Post, March 25, 2025 and Deborah Pearlstein, “They Are America’s Most Powerful Law Firms. Their Silence is Deafening”, New York Times, March 25, 2025.)

Skadden reached a pre-emptive arrangement with Trump (Politico, March 28, 2025). It agreed to undertake $100,000,000 worth of pro bono work on matters satisfactory to the administration and not to apply DEI policies (something Paul Weiss also agreed to do). While Trump had not issued an EO against Skadden, Politico explained that Elon Musk had targeted the firm: “’Skadden, this needs to stop now,’ Musk posted in response to a post from 2020 election denier Dinesh D’Souza who said the firm was engaged in ‘systematic lawfare’ against his film 2000 Mules”. (NPR described the film as “widely debunked”, reporting the distributor had disavowed it after being sued by an individual portrayed in it [NPR, May 31, 2024].)

Settling with Trump has been controversial and strongly criticized. For example, James Zirin’s indictment is typical; he wrote in The Hill, “Shame on the venerable Paul Weiss law firm for giving in to President Trump and breaching every cardinal principle on which the firm has stood for generations.” (The Hill, March 26, 2025)He said further, “The Paul Weiss surrender is a wretched development. If a major, powerful and talented firm cannot fight Trump, with the law entirely on its side, it sets a terrible precedent that resistance is futile.” One would also wonder whether a firm that caved to Trump would be able to effectively represent clients who had run afoul of Trump; presumably, these are clients they have lost.

Not everyone feels this way. Robert S. Smith, who had been a student and professor at Columbia (which also gave in to threats of losing funding) and former partner at Paul Weiss, and who disagrees with DEI, argues that we can’t expect them to be “heroes”; it’s the system that allows the bullying that needs to change (“I’m an Alum of Columbia and Paul, Weiss. There’s an Uncomfortable Lesson in Trump’s Tactics”, New York Times, April 1, 2025).

We can gain some understanding of the significance and abnormal nature of Trump’s executive orders directed at law firms through the lens of “bills of attainder” although, to be clear, they are not actually bills of attainder. “Attainder” itself means, according to Merriam-Webster, “extinction of the civil rights and capacities of a person upon sentence of death or outlawry usually after a conviction of treason”. (In many cases, the conviction for treason was a put up job, somewhat similar to an allegation of threats to national security, requiring control, one of Trump’s common form of attacks after economic unfairness, requiring tariffs — or annexation).

A billl of attainder, however, may not be so limited but is defined as a bill enacted by a legislature to state someone is guilty of a crime and to impose a penalty. Trump’s EOs are not a statement of criminality. They do share a crucial characteristic with a bill of attainder, though: both impose a sanction without the opportunity for a hearing. And each confuses the roles of one government entity for the judiciary: with bills of attainder, the legislature usurps the functions of the judiciary; with Trump’s EOs, the executive is usurping the functions of the judiciary. (Of course, parties affected by EOs can turn to the courts, but since Trump is also denigrating judges, there is a potential double whammy).

Bills of attainder are contrary to rule of law principles and are explicitly unconstitutional in the United States (section 9 states, “No bill of attainder or ex post facto Law shall be passed” and section 10 states, “No state shall pass … any bill of attainder”. (On bills of attainder in the United States, including the test for determining whether a law constitutes such a bill, see Cornell Law School, Legal Information Institute.) (For the history of bills of attainder, as well as briefly how claims based on them might be utilized, see Jacob Reynolds, “The Rule of Law and the Origins of the Bill of Attainder Clause”).

Here at home, in 1983 the Speaker of the Canadian House of Commons ruled that An Act Providing for the Execution of Clifford Robert Olson was neither a public nor a private bill, but fell within “a special category for which our practice does not provide. Its nature is that of a Bill of Attainder” and “[i]t has never existed in the Canadian practice”. (See House of Commons Debates, 32nd Parliament, 2nd Session : Vol. 3, images 1321 and 1322).

Trump’s actions are those of a bully. He is a practised and skilful bully, having been successful over many years, albeit weakened by pushback. He is now bullying the foundational elements of the rule of law. The law firms are acting for the most part individually, although other firms were willing to represent those challenging the EOs.

As Deborah Pearlstein, director of Princeton’s Program in Law and Public Policy, argues, “Every individual firm has an incentive to keep quiet, but if everyone stays silent, all will lose. The problem is understandable. It is also solvable. It requires firms to find the courage to act together.” Paul Weiss’s chair, Karp, noted in his email to the firm that Paul Weiss had hoped to convince other firms to support Covington and Perkins Coie, as well as Paul Weiss itself; however, this had been unsuccessful.

The role of lawyers is obvious when they act in pursuit of constitutional protections. Similarly, their importance in representing criminal accused against the power of the state is plain. However, the rule of law applies not only to these cases, but to the civil cases in which private individuals have a dispute against each other. While not perfect – far from it, in fact – individuals are free to assert their rights under the law and the people they sue are entitled to defend themselves. Who is good or bad is irrelevant. Ideally, the law will decide that, although again, it might not always be right. The point is that we rely on the rule of law to protect rights and maintain a degree of order that allows society to function efficiently. Again, not only is the law not always successful, but it can be used to deny rights. Access to justice may seem selective. The answer to that is to work to improve law and access to it, not to undermine it.

What Trump is doing attacks the rule of law at a different level. One crucial element of the rule of law is that “no one is above the law” or “everyone is subject to the law”. In Trump v. The United States (July 1, 2024), the Supreme Court of the United States cast that principle aside in determining that the president is “absolutely immune from criminal prosecution for actions within his conclusive [and preclusive] sphere of constitutional authority” (p.9) and “at least a presumptive immunity from criminal prosecution for a President’s acts within the outer perimeter of his official responsibility” (p.14). (The president has no immunity for unofficial acts [p.15].)

However, Trump’s actions go further. He is using the force of government to achieve his own interests and to punish those who have offended him or used the law to address his wrongdoing. He is subjecting entities to his arbitrary whims. And he has the support of sycophants, such as Pam Bondi, the Attorney General, and Marco Rubio, Secretary of State, among others in his coterie, to carry out his handiwork.

The upshot is that Trump’s EOs against lawyers and bills of attainder are similar. As Perlstein says, giving in to Trump

…weakens the rule-of-law system on which all Americans depend — a system in which the rules are publicly known and set in advance, not subject to the whims of arbitrary vendettas. It equally hastens America’s slide from a system of constitutional democracy, in which executive power is constrained by multiple independent institutions, to a regime of fiat akin to those authoritarian governments [America] has long stood against.

Although these Big Law firms do pro bono work, they are Big Business and the loss of that business was relevant to the firms that settled. That does not mean, however, that they should be victim to the authoritarianism the EOs represent.

By comparing Trump’s EOs with bills of attainder I do not mean to suggest that the EOs are such bills and are thus clearly unconstitutional under the US Constitution (or should we see something similar in Canada, that they are not provided for by our practice). Like the bills of attainder so often were, however, Trump’s EOs are vindictive, motivated by spite, and with the goal of bringing the firms to heel or to seriously interfere with their law practices, without any recourse before sanctions are applied. Trump is acting out his belief in the “unitary executive”, bypassing the entities that should address the conduct of lawyers. The conduct he seeks to restrain – or to compel – is not conduct that would otherwise be subject to sanction. Rather it is conduct, at least in part, that challenged Trump’s own efforts to undermine the rule of law: his EOs are a continuation of that effort. In that sense and others Trump’s EOs against the law firms are in the spirit of bills of attainder.