Walter Olson
President Donald Trump has moved to strip security clearances from lawyers at the storied international law firm of Covington & Burling to punish it for providing legal assistance to former special counsel Jack Smith, who led the federal prosecution of Trump over Jan. 6, the New York Times reports. The move is an extraordinary attack on the independence of the bar and bids to chill the willingness of many lawyers to take on as clients and zealously advocate for the interests of those Trump considers his enemies.
The Times reports:
According to a disclosure filed with the Justice Department shortly before resigning as special counsel ahead of Mr. Trump’s return to office, Mr. Smith, a former war crimes prosecutor, said that he had received $140,000 worth of free legal advice from Covington to help him prepare for investigations and legal action by Mr. Trump’s allies.
The directive ordered the administration to revoke any security clearance held by Peter Koski, the Covington lawyer representing Mr. Smith, and any other members of the firm who may have participated in such work.
Trump has already moved to revoke the security clearances of a variety of perceived political foes, typically, as here, offering no evidence that those clearances have been misused in any way harmful to national security. The list includes national security lawyer Mark Zaid, who has represented clients adverse to Trump’s interests in high-profile cases. Loss of a security clearance will often prevent a lawyer from effectively representing clients in cases where evidence is classified.
Should the vengeful chief executive keep on stripping clearances from lawyers he sees as assisting opponents, the question becomes: what then will remain of the independence of the national security bar? Will a whistleblowing former employee of a national security agency be left to choose among whatever counsel Trump regards as politically reliable?
Judges are not without ways to temper some of the more extreme possible consequences; for example, if the government prosecutes a defendant for alleged national security offenses and no lawyer representing that defendant is allowed to examine classified evidence, the judge may exclude the evidence in the interests of fairness. But it would be dangerous to rely on such backup methods to remedy the loss of an independent and qualified bar willing to stand up to authority.
And the implications go far beyond the practice of national security law. Anyone can find themselves in a fight with Trump or his allies on almost any topic under the sun, and the question is whether the counsel representing you in that dispute has to fear being made the next Covington, set as an example, for having engaged in zealous advocacy.
Trump has crossed a line. He is now using the powers of his office, and openly too, to punish a law firm for representing someone. How will the legal profession respond?