As a Failed President Clings to Power, Top Law Firms (Finally) Take a Stand

With the COVID-19 outbreak reaching a new level of crisis, it is all the more imperative for the outgoing Trump administration to ensure a swift and effective transfer of the gears of government to President-elect Joe Biden. Nevertheless, as of this writing President Trump has not even taken the first step of formally conceding. That makes it all the more imperative for business leaders to insist on launching the transfer process immediately. In one development that could prove decisive, law firms have begun to withdraw their business from the Trump campaign and its allies.

When delay costs lives

Media analysts officially called the 2020 Election in Biden’s favor on Saturday, November 7, but as of last week only a small flurry of high profile members of the business community publicly welcomed him as the president-elect.

Some, like Facebook COO Sheryl Sandburg, chose to ignore the pandemic and focus on the history-making achievement of Vice President-Elect Kamala Harris, or to dwell on general themes of unity and democracy.

U.S. Chamber of Commerce CEO Thomas J. Donohue was among others who at least hinted at the need for an efficient transfer of due to the urgency of addressing the COVID-19 pandemic. However, in a statement issued on November 7 he carved out a giant loophole, when he emphasized that it is “important to complete the election process by fully counting every vote and resolving any disputes.”

Why lawyers need to stand up for the law

Donohue’s loophole illustrates why it is important for law firms to pull the covers back on the efforts of the Trump campaign and its allies to delay the transfer of power by launching a series of lawsuits challenging the results of the 2020 Election.

Trump and his high profile supporters, including Senator Mitch McConnell (R-KY) and Senator Lindsay Graham (R-SC), have argued that the Trump campaign is entitled to pursue claims of election fraud in court. Graham, for one, has backed up that argument with a reported $500,000 donation to the campaign’s legal fund for election challenges.

If that is what Donohue means by resolving disputes, the cost in human lives is mounting with every day of delay. The Trump administration never developed a national strategy for managing the COVID-19 crisis to begin with, and now the number of people infected, sickened, hospitalized, and killed by the virus has skyrocketed with the onset of cool weather.

In just the seven-day period from November 9 to the 16th, the Johns Hopkins COVID-19 tracker recorded more than 1 million new cases, an alarming surge considering that it has taken almost 10 months for the U.S. to reach approximately 11 million cases in all.

Employee activism at work behind law firms pulling out

In this context, it is notable that several law firms in the Trump stable have finally taken a stand against the delay.

Last Friday, The New York Times reported that one Trump firm, Porter Wright Morris & Arthur, “abruptly” withdrew from an election lawsuit in Pennsylvania. The move follows an extended period in which some lawyers at the firm have reportedly spoken internally against involvement with the Trump campaign.

According to The Times, lawyers at another Trump-affiilated firm, Jones Day, have also “expressed discomfort” about involvement with the campaign.

In particular, The Times took note of a Jones Day lawyer who emailed others at the firm, arguing that “we as lawyers choose our clients and our causes. We choose what we stand for. And this project, I submit, should not be one of those things.”

When you’ve lost Jacoby & Meyers…

Employee activism at the two law firms has begun to catch the media eye, partly with an assist from anti-Trump Republicans organized through The Lincoln Project.

Last Thursday, Fortune magazine cited Randall Eliason, a legal scholar at George Washington University, undercut the notion that Trump and his allies have a constitutional right to representation. Criminal defendants prosecuted by the government have that right, but “Trump is playing offense by affirmatively bringing these cases, and the firm is not obligated to represent them,” Eliason said.

Fortune also took note of a statement from Andrew G. Finkelstein, managing partner at the firm Jacoby & Meyers, who vehemently supported the ethical duty of a law firm to refuse work that casts doubt on the 2020 Election.

"I adamantly reject the notion that my firm would ever consider representing President Trump, his campaign, or the Pennsylvania Republican Party in their transparent efforts to undermine the integrity of our country’s electoral process,” Finkelstein told Fortune.

On November 12, Reuters noted that employee recruitment may also be in play, citing 2020 Harvard Law School graduate Molly Coleman, who is also executive director of the anti-Trump People’s Parity Project linking law students with attorneys.

“Law students from U.S. schools including Harvard and the flagship university for Jones Day’s home state Ohio are also mobilizing against the firm. Some are considering a boycott,” Coleman told Reuters.

There may also be a ripple effect on corporate clients, whose affiliation with law firms in the Trump fold has suddenly drawn attention on social media.

Reuters cites the example of GM, which found itself peppered with responses critical of its relationship with Jones Day after tweeting a message celebrating women’s leadership.

As the days tick by, more U.S. business leaders may be forced to step away from the “resolving any disputes” cover position and start taking action to save lives.

Short of a formal Trump concession, one impactful place to start would be the General Services Administration, where Director Emily Murphy, a Trump appointee, has blocked the entire Biden transition team from access to federal resources and high-level personnel.

On Monday, ABC News reported that Ms. Murphy seems to be looking for another job next year, leading one to wonder what, if anything, she hopes to accomplish by continuing the blockade day after day - unless it’s a bigger pile of bodies.

Image credit: Ronnie Rondon, Gayatri Malhotra/Unsplash