July 31st, 2026
By Howard M. Wasserman
The Constitutional Law Workshop explores the Trump Administration’s attacks on major institutions through three discussion groups, organized and moderated by Tom Metzloff (Duke) and Howard Wasserman (FIU).
The final group, at 9 a.m. Friday, explored assaults on the legal profession. The discussion was divided into two topics; within each topic, featured speakers offered prepared remarks, followed by an open discussion among the 20 participants of those remarks and other issues.
Topic One examined the Trump Executive Order targeting law firms. Ben Cooper (Mississippi) and Tom Metzloff (Duke) analyzed the E.O., the legal issues it raises, and the ongoing litigation challenging it, including recent developments. Some common ideas emerged. In settling, firms showed themselves fundamentally conservative institutions, contra administration criticisms of their supposed liberalism. The E.O.’s represent an attempt to “kill [some of] the lawyers.” They should be regarded as “assaults” and without historical parallels. None were grounded in genuine ethical justifications but as retaliating based on who firms had represented in the past; the government still has not provided any ethical or legal justifications for the E.O.’s in litigation. There is a nice question whether the firms that refused to settle should be regarded as heroes or as doing what they were supposed to do. Individual attorneys who left settling firms should be regarded as heroes. The discussion noted that not all the lawyers will be killed; some lawyers are necessary to enable the abuse of government power and others remain and avoid the fray. Discussants considered whether the settling firms felt real effects in loss of clients, attorneys, or law-student hires, identifying small effects and individual examples (especially early); the absence of major consequence raises the prospect of the law firm E.O.s as a dry-run for attempts to control other institutions. They connected the attempt to control lawyers to broader concerns for the rule of law.
Topic Two considered related problems of retribution and accountability in the legal profession—the administration’s attempts at retribution against perceived “enemy” lawyers and the need for mechanisms of accountability for administration lawyers. Margaret Tarkington (Indiana-McKinney) considered both sides of the problem—Administration efforts targeting Jack Smith, Chris Krebs, and others who pushed against Trump’s efforts to undermine the 2020 presidential election and Administration efforts to limit the power of State Bars to sanction misconduct by government attorneys. She proposed an ethics rule analogous to Fed. R. Civ. P. 11, prohibiting government attorneys from giving advice that is not well-grounded in law or fact and imposing a duty of candor as to the state of the law (including when officials would act contrary to current
law). Greg Brazeal (South Dakota) argued for a democratic reconstruction of the DOJ’s Office of Civil Rights. The discussion considered whether lawyers, given their ethical obligations, are different than other presidential advisers, and how the attorney role interacts with official immunity. Both papers attempted to offer bulwarks against government attacks on the rule of law; the effectiveness of these or any others remains the bottom-line concern.