About those law firm agreements
There’s a paywalled post over at TPM. Here are the nut grafs:
“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’s services of great value in exchange for government inaction and, critically, this part of the agreement is with Trump personally, not the US government. It’s 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 Cadwallader can run down that commitment over a century. Or two.
I’m not a lawyer, but it sure likes less than meets the eye here.
“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’s services of great value in exchange for government inaction and, critically, this part of the agreement is with Trump personally, not the US government. It’s 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 Cadwallader can run down that commitment over a century. Or two.
I’m not a lawyer, but it sure likes less than meets the eye here.
Yeah… Trump outsmarting high-end legal firms on legal issues like contract law? Not gonna happen. Does he care? Probably not; he announced the win, and that’s likely 98% of what he wanted anyway.
John:
If so, I suspect it “maybe” cheaper to sign on then waste time and poyential money pushing back on it? You pat tr__pie on the back, call him a smart cookie, and lose a small bit of integrity.
I think I get it.
If it’s as simple as all that, why do you suppose some firms are fighting it? Before the “agreements”, I think there were executive orders stripping the firms and their lawyers of security clearances, the right to enter federal buildings, and to represent federal entities. Besides scaring off potential clients, which apparently has already occurred, some poaching of attorneys, and denial of access to federal business is real enough that avoidance could induce compliance by firms.
Jack:
Thanks for chiming in on this.
@Jack,
No idea. Maybe all firms aren’t run the same way. They all knew what was at stake. Josh Marshall’s comments speak for themselves.
@Joel
The ones that “settled” clearly were concerned about losing clients who didn’t want their firm to be “on the outs” with the feds. All firms are not run the same way.