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Last week I asked some questions about the law firm “agreements” with Donald Trump that seem very unclear from the available news coverage. Namely, where are the agreements? Are they formal agreements committed to writing? Who are the parties? Are they signed?
Sources from the Big Law firms who inked (maybe?) new agreements last week gave me a lot more visibility into what these deals are about. So I want to share that with you.
First, I want to renew my request to lawyers at the big firms to reach out and share information. I can not only protect your confidentiality, I can keep your firm anonymous as well. See more in the addenda at the end of this post.
Now let’s get down to business. Let’s start with what and where are the agreements?
As best I can tell, what constitutes these “agreements” are — depending on the agreement — three or four bullet-pointed paragraphs of text. I’ve reviewed emails agreement-er firms sent their lawyers. The emails of course vary from firm to firm. But the ones I’ve seen have a lengthy discussion of why the firms made the deals, what they didn’t agree to and other points of reassurance. They also include these blockquoted bullet points. It’s often unclear whether these blockquoted sections are text from the agreements or summaries of portions of the agreements. However, putting all the pieces together, it seems clear to me that these blocks of text are in fact the sum total of the agreement. They often appear to be identical to what Donald Trump posts on Truth Social when he announces that agreements have been reached.
In other words, the notional agreements don’t appear to have any of the basic blocking and tackling features that constitute anything close to a contract. They don’t explicitly state who the parties to the agreement are. They don’t state the duration of the agreement or things like which jurisdiction’s law they’re under. In no case that I’m aware of has any firm circulated a document purporting to be an agreement other than the bullet-pointed items included in the emails sent to employees. If there are even things like signature pages and such, that stuff doesn’t appear to have been shared internally at the firms.
In an early iteration of my reporting on this I determined that it was clear that the agreements are with Donald Trump personally, rather than the office of the president or the United States government. But even that kind of falls apart because they’re not even really agreements. No agreements exist in any real or legally binding sense.
One reason we know they’re not legally enforceable agreements is that what Trump is threatening is clearly illegal. Indeed, one can go quite a bit further than this, as TPM Reader AK suggests, and say that if the agreements are agreements then the agreements themselves look like bribery. Trump agrees to forego threatened illegal actions in exchange for $100 million or $125 million of services. That amounts to services of great value in exchange for government inaction and, critically, this part of the agreement is with Trump personally, not the U.S. government. It involves causes Trump supports, and this part of the agreement applies “during the Trump Administration and beyond.” So if you follow the purported logic, a 90-year-old ex-President Trump will still have pro bono work credits to assign in retirement.
But it’s also all just smoke and BS.
Almost every part of the agreements are worded in ways that make the purported commitments basically meaninglessness. So for instance, each agreement has the firm agreeing not to do “illegal DEI hiring.” But that’s easy for them to agree to, as far as they’re concerned, because they don’t think whatever DEI or affirmative action hiring they do is illegal. So whatever “illegal DEI hiring” might be, they don’t do it. End of story. And the same applies to pretty much all the other fairness-related commitments.
Even the pro bono work, which now includes “other free legal services,” is a bit less than it appears. I noted above that this part of the agreement appears to be with Trump himself apart from the presidency and continues past the duration of his administration. But the same language means that the notional commitment to either $100 million or $125 million in pro bono work is over an indefinite and actually unlimited period of time. So by the terms of the agreement, Kirkland & Ellis or Cadwalader can run down that commitment over a century. Or two. Any amount of time is okay. Maybe Trump will still be assigning free legal work when he’s 200. I think Ronny Jackson said he’d probably live that long.
My point here isn’t to say these agreements are fine. It’s that they amount to agreements to lie to each other. And everyone else. Except to the firm’s own staff. They get the real story. Or what the management committee believes is the real story. Or anyone else who says the firm has betrayed their principles. They get told the firm didn’t really agree to anything.
Or that’s the idea.
Another point that came out in the in-house discussions is that the White House didn’t agree to anything more than to end the EEOC probes and not to release an executive order targeting the firms in the near future. That last point is key. Each firm was made to believe that an executive order was imminent. And now it’s not imminent. But could the administration come back with something else in six months? Or a year? Sure. And that’s not just me drawing an obvious conclusion based on what we know about Trump’s behavior. (See iPhone tariffs.) My understanding is that whoever was speaking for the White House in these negotiations made this fairly clear in the discussions themselves.
My own read is that the firms see this gambit as simply a necessary and mostly meaningless effort to get the White House off their back. I think they assume or hope that the political climate shifts and by the time it does they say these agreements were always BS. They’re unenforceable, made under duress and against threatened actions that were illegal. And that may happen. Who knows? Everyone is kind of hostage to fortune, or, in this case, public opinion polls.
Of course, inking the deals at all — or non-inking them, as the case may be — still achieves something very tangible for Trump: the appearance of the powerful and mighty all bending to his will. For Trump, that’s a big deal, both for his ego but also for the papier-mâché but real power he wields. If everyone agrees to pretend Trump is all powerful, then he kind of is. In a way, the firms are doing an incremental damage to the broader society and its relative freedom at little or no real expense to themselves. Or that’s the idea. The real issue is what comes next.
On that front, I have already heard, albeit so far only second hand, of firms passing on the business of disfavored potential clients. So, “Hey, we’d like you to help us do X, Y & Z.” And the answer comes back, “Look, it just doesn’t feel like this is the right time.”
Have you heard about this? Has it happened to you? Are you a lawyer at a Big Law law firm? See the addenda below.
Addenda: Are you a Big Law law firm lawyer? I’ve got a proposition for you. I’m still looking for more details about the “agreements” several major law firms have made with the Trump White House. Maybe you’ve seen something you know just isn’t right but you still don’t want to make trouble for your firm. Well, you’ve come to the right place. It probably goes without saying that if you talk with me, I’ll preserve your anonymity and confidences. But I can preserve your firm’s anonymity too. No really. Now, if you’d like to burn your firm from the safety of your own anonymity, let’s do it! I can totally roll like that. But if you don’t want to do that, that works as well. Especially if you’ve never worked with a reporter, it might seem like once you spill any beans, even in confidence, you’ve lost control of what happens with that information. But that’s not true. You can share information with me and we can agree that I will simply report that a major firm that made an agreement with the White House subsequently did X or Y. There’s upwards of a dozen such firms. So that’s plenty of anonymity. Your ticket, your party. You tell me the conditions under which you’ll share the information and for what specific uses. And those conditions are permanent and unalterable unless and until you say otherwise. The information I’m now most interested in are examples of law firms — agreement-ers or not — either dropping disfavored clients or turning down their work. Wanna talk? Use one of my encrypted channels above and below this post.