Back in August, the New York Times reported that Kirkland and Paul Weiss (along with Skadden) — firms who had cut deals with the administration in exchange for pro bono payola — had done work for Trump’s Commerce Department. Democratic lawmakers quickly fired off inquiries because giving the government free services would violate the Anti-Deficiency Act, and direct work for the administration would contradict the firms’ prior representations that any free legal work would be limited to a relatively benign list of charitable causes. The firms responded without actually answering those concerns, instead reiterating that they can choose their clients and believe they’re not doing anything wrong.
Now, it seems, Simpson Thacher has joined up with Trump’s Commerce Department.
Simpson Thacher & Bartlett is handling work for the U.S. Commerce Department, a department official confirmed on Wednesday. The New York firm is the latest Big Law firm that reached a pro bono deal with President Donald Trump this year to commit to do work on behalf of the U.S. government.
Simpson Thacher has already started working for the department, but the firm and the U.S. government are working to finalize an agreement for the firm’s work.
“We are working with the firm and finalizing terms at the moment,” a department official said.
“Terms” implies a paid engagement. It also, by extension, lends support to the idea that the other firms also got paid for their time, despite earlier reports. And there’s nothing wrong with that! Law firms perform work for the federal government all the time — in both Republican and Democratic administrations. If Simpson Thacher — and the other firms — are getting paid, it resolves both the Anti-Deficiency Act issue and concern that the firms misrepresented the extent of the deal in their early letters to lawmakers.
So why can’t they just say that?
Simpson Thacher representatives did not respond to requests for comment by publication time.
Quelle surprise.
If we’re making predictions, when the inevitable letter from legislators arrives, the firm will also avoid saying, “yes, we’ve been engaged at our standard rate to perform contract work on behalf of the administration” and instead cough up some vague song and dance about choosing their work and swearing without any evidence that they’ve done nothing wrong.
And it’s probably true! This probably is routine work. Now, is it routine work they would’ve been awarded but for cutting deals that made them preferred contractors? Maybe not. That constitutes a whole other problem if, even unintentionally, this sends a signal to the rest of the industry or the public at large that administration work is a pay-tribute-to-play endeavor. But, that aside, simply doing the work for money resolves the issues the lawmakers have explicitly raised.
The fact that none of them will simply say so is exactly why these deals remain such a disastrous mistake.
Right now, a handful of the most powerful law firms in the country are utterly tongue-tied when asked to give a straightforward, honest answer to the congressional equivalent of the $100 question on Who Wants To Be A Millionaire. Because simply admitting “no, obviously we wouldn’t directly give Trump pro bono services” comes with the non-zero prospect that the dementia-patient-in-Chief will momentarily emerge from the wreckage of the East Wing long enough to put his tiny hands on his Truth Social account and bang out a new executive order to destroy the firm’s ability to do work. Nothing in the “deals” they put together indicated that the firms would have to forfeit their ability to be forthright, but everyone understood that was part of the package.
It’s another wrinkle to the Lando effect: it doesn’t matter how fair the original terms may be, when you deal with a bad faith actor, they own you. Even if Vader doesn’t alter the deal any further, there’s no peace under this kind of deal because the fear never evaporates. Assuming Trump hasn’t changed the deal to demand free Commerce work, why take this work at all? Why wouldn’t the firms steer clear to avoid even the appearance of impropriety? It can’t be particularly lucrative in the grand scheme of things. Doesn’t it speak to the de facto breadth of Trump’s hold over them if the firms feel compelled to take on Trump work knowing that it would only invite further scrutiny? That they can’t just speak plainly about it without fear of reprisal? I suspect the firms thought they had discrete, limited deals with no regard to the broader implications for both themselves and the industry.
But that’s not how Vader deals. They thought they were buying protection and instead they bought an obligation to keep proving their loyalty ad infinitum.
Simpson Thacher Working for Commerce Department, Official Says [Law.com]
Earlier: ‘Pray I Don’t Alter It Any Further’: What Darth Vader Should Teach Law Firms About Settling With Trump
Paul Weiss, Kirkland Doing Free Trump Commerce Department Work As Part Of ‘Please Don’t Hurt Us Daddy’ Deals
Lawmakers Ask Paul Weiss And Kirkland To Explain Why Trump Work Isn’t Totally Illegal
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news.
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