16 House Dems Ask Law Firms that Capitulated to Trump If They’ve Thought about Their Bribery Exposure
Back on April 15, I wrote a post highlighting an amicus brief submitted in the Perkins Coie case that raised concerns that the agreements law firms made with Trump might expose the firms to bribery prosecution.
Just as the President’s decision to issue executive orders that sanction certain law firms is an official act, so too is the President’s decision to withhold issuing executive orders that would sanction other law firms. See McDonnell v. United States, 579 U.S. 550, 574 (2016) (holding that for purposes of construing § 201, an “official act” essentially has two components: (1) “the public official must make a decision or take an action” on (2) “something specific and focused that is ‘pending’ or ‘may by law be brought’” before a public official). A law firm’s commitment to provide valuable pro bono services to the President’s preferred causes, made “with intent to influence” the decision whether to issue or withhold an executive order targeting those law firms, would appear to meet the quid pro quo requirement of federal bribery law.
[snip]
In the present circumstances, the Department of Justice likely would conclude that it is not in the public interest to prosecute law firms that offer pro bono services in exchange for avoiding the consequences of an executive order, even if that offer arguably constitutes a violation of § 201.3 Regardless, the President’s exertion of pressure on law firms to engage in conduct that could violate federal anti-bribery law further illustrates the ethical quandaries these executive orders create. Allowing Executive Order 14,230 to take effect would put more pressure on law firms to reach agreements with the President to avoid a similar fate, and in doing so compromise themselves to potential criminal liability.
3 Or perhaps not: the threat of criminal prosecution is a potent form of influence the federal government could exert to compel law firms to continue complying with the President’s demands. Cf. United States v. Adams, No. 24-CR-556, 2025 WL 978572, at *36 (S.D.N.Y. Apr. 2, 2025) (stating that the government “extract[ing] a public official’s cooperation with the administration’s agenda in exchange for dropping a prosecution . . . would be ‘clearly contrary to the public interest’” because it “violate[s] norms against using prosecutorial power for political ends” (quoting United States v. Cowan, 524 F.2d 504, 513 (5th Cir. 1975))).
Today, a group of House Democrats led by Dave Min wrote the firms that capitulated to Trump, raising the same concern.
While we do not know all of the particular facts about the circumstances of the Skadden agreement with President Trump, this agreement on the surface appears to have been struck in order to appease President Trump so that he would not issue an Executive Order targeting Skadden. If this is the case, Skadden’s settlement raises a number of concerns, including potential violations of federal and state statutes, as well as several Rules of Professional Conduct, including the below:
Potential Federal Law Violations
1. 18 U.S.C. § 201(b)(1): The Skadden agreement could potentially implicate this federal anti-bribery statute, which prohibits anyone, under threat of both criminal and civil liability, from corruptly offering and promising something of value to public officials with the intent to influence their official acts.
2. 18 U.S.C. § 1951: The Hobbs Act prohibits obstruction, delay, or affecting commerce by extortion under color of official right. By participating in this arrangement, performance under the Skadden agreement may be argued to constitute the aiding, abetting, and/or conspiracy with officials in the commission of these offenses, as established in precedents such as United States v. Torcasio, 959 F.2d 503, 505-506 (4th Cir. 1992); United States v. Spitler, 800 F.2d 1267, 1276-79 (4th Cir. 1986); and United States v. Wright, 797 F.2d 245 (5th Cir. 1986).
3. 18 U.S.C. §§ 1341/1343, 1346, 1349: These statutes prohibit schemes to defraud the public of the honest services of public officials using mail and wire communications. The Skadden agreement may be argued to constitute such a scheme involving bribery, as defined by the Supreme Court in Skilling v. United States, 561 U.S. 358 (2010).
4. 18 U.S.C. § 1962: The RICO statute prohibits participation in an enterprise engaged in a pattern of racketeering activity. It may be argued that the Skadden agreement, which involves Skadden, its partners, the President, and other executive officials may constitute an association-in-fact enterprise engaged in predicate offenses including bribery.
This effort follows a more timid previous effort from Richard Blumenthal and Jamie Raskin.
A lot of lefties complain that members of Congress aren’t standing up to oppose Trump’s authoritarianism.
Letters like this are an example of things that fit solidly within normal legislative effort that help with messaging in the short term but might serve as a powerful lever down the road.
And if they give firms an excuse to renege on the deals in the short term? All the better.
Since DOJ will only act in trump’s interest, could these be charged on the state level?
It’s gratifying to see dems do something.
The letter(s) do reference a New York State law, but the conduct does seem to fit more squarely under the federal statutes, although as you correctly note it seems unlikely to see action on that front from a Bondi-led DOJ.
Ultimately, as with some of the J6 legal “masterminds” the more immediate consequences may come instead from the various Bars looking at violations of ethical rules.
Bars? The relations of the administration are trying to win positions on the DC bar now as I write this. Perhaps someone has counted the preferences of the various Bars?
Missed this comment. State? What about international. UK Anti-corruption law seems applicable here, several of these firms have offices there, and the statutes have global reach for conduct.
People want big splasy speeches, but this nuts-and-bolts stuff matters a whole lot more. It sounds like our lawmakers are finally getting organized in the face of an existential threat, and feeling their way toward being an opposition party. They should hire McConnell to give a seminar. Hell, he might even do it for a meal.
I thought Trump had already legalised bribery but what he actually did was stop enforcing anti-bribery laws.
A stupid person might think that was the same thing. If you’re a lawyer, it’s probably fine. Especially if you’re a ‘Trump lawyer’.
These firms are also exposed to criminal and civil penalties for non-US anti-corruption statutes, which are alarmingly global in scope. I’d be surprised if their overseas partners haven’t already advised their US offices that they can be on the hook to their colleagues actions.
Re the capitulating law firms —
Going forward, who would want to hire them? Most people or companies want an attorney that is knowledgeable, smart, strategic, unafraid, strong, (honest).
This.
If I need a lawyer, I want the firm to put my interests first, not theirs. The last thing I want is a law firm that says “Hmmm . . . if we argue on behalf of this client, it could look bad. And if we win, it could really get ugly with the government.”
I wonder how many of the lawyers at these big firms are rethinking their employment. (Cousin by marriage is an insurance law guy; he joined one of these outfits a few years back, after practicing on his own for a long time. He’s close to when he can retire.)
Hmm. So, if I need a lawyer to represent me in front of the government, I should look for one that has bribed them already so I will get good results from the representation? That would be putting my interests first, no? Ah … life ain’t easy.
I can hear Popehat now. “It’s not the RICO. It is never the RICO.”
But if Popehat says it’s RICO, we can get ready to party!
In another court:
https://apnews.com/article/trump-elections-executive-order-citizenship-lawsuit-4b683fe2e1106316fdb05621be9b7d0e
Judge blocks some of The Felon Guy’s changes to [federal] voter registration requirements.
(It’s Kollar-Kotelly.)
Another decision, judge Orrick in the 9th circuit:
https://www.sfgate.com/news/politics/article/judge-bars-trump-from-denying-federal-funds-to-20292507.php
The government can’t deny appropriated funds to “sanctuary cities”.
And non citizen voting in national elections isn’t even a thing except in the tortured minds of trump and magas.
About 95% of the voting fraud I’ve heard about has been done by Rs, voting for someone else, or trying to vote twice, or voting in a place they don’t live.
A few things come to mind here:
1. If a firm (say, Benedict, Arnold, & Underbus) is one of the firms that caved to Trump, what happens if that firm later decides to inform Trump that they are withdrawing from the agreement. That would throw a lot of attention onto the whole deal.
2. What if your firm is one of those that didn’t cave and is representing a client in court. The opposing firm caved to Trump and is following his pro bono demands. Are there issues that should be brought to the judge’s attention?
3. This attempt at banning selected law firms access to federal properties seems ripe for high level reversal. I worked in Galveston, Texas in the 1980s. Our office was in the Galveston U.S. Post Office and Courthouse. There a bunch of other federal agencies in the building, including that post office and court; plus, Coast Guard, Customs Patrol, the Weather service, etc. All are federal offices where people are allowed or require access. Who was supposed to enforce the ban?
Does this mean that legislation is now needed to ensure the independence of the federal judiciary? It would have to cover, in minute detail, all aspects of infrastructure, personnel, access control, court orders, etc. It’s scary to contemplate a judiciary that has too much power and authority, but less scary than contemplating a judiciary whose orders are just words on paper – a legal “suggested serving”.
To invert some unhappy history, we might say that these firms chose not to stand at the schoolhouse door.