A federal judge asked the Trump administration a simple question: who drafted, reviewed, and approved the executive orders targeting Biglaw firms?
You know the kind of basic information that appears on privilege logs every single day. Not the internal communications, not the drafts, the edits, the strategy memos (at least not yet). Just the names of the people who worked on the orders that tried to blacklist disfavored law firms out of existence. In the ABA’s lawsuit over that whole campaign, Judge Amir Ali ordered the government to file a notice identifying the individuals involved in drafting the Biglaw Executive Orders, and the custodians of a handful of records. The most basic housekeeping in all of civil discovery.
…The administration would rather not.
The ABA sued the Executive Office of the President in June 2025, arguing that the executive orders, plus the wave of deals that spooked firms into capitulating before an order ever arrived, added up to a single coordinated campaign to intimidate the legal profession, not a scattering of unrelated grievances. Judge Ali denied the government’s motion to dismiss, and the case moved into discovery, where the ABA started asking the White House to turn over its receipts: internal communications about the orders and the deals, including those involving Boris Epshteyn and Steve Bannon. The government has spent the summer trying to make discovery go away — it subpoenaed law firms rather than hand over its own documents — which is still pending. After a July 31 hearing on the ABA’s motion to compel, Judge Ali entered the order now at issue.
In a notice filed Monday, DOJ formally invoked the presidential communications privilege — the Nixon-tapes privilege, reserved for the confidential advice a president gets while governing — over the identities themselves. The government’s position is that telling a court who drafted an executive order — a public document, signed by the President, and struck down as unconstitutional four separate times — would do such violence to the separation of powers that the President has “no choice” but to assert the privilege over the names as well as any advice they may have provided.
And DOJ is admirably candid about why. The whole point of making the government name these people, it says, is “to name and shame them—but that is the very chilling effect that the presidential communications privilege is supposed to protect. This is Nixon distilled.” What a wild thing to write down. First of all, United States v. Nixon is the case the government lost! It stands for the proposition that while executive privilege exists, it is not absolute! The Supreme Court ordered the tapes handed over and the President resigned two weeks later. And again, this is about the names of who is involved not even the substance of the advice receivd.
And, not for nothing, but you only worry about people being “shamed” if there’s something there to be ashamed of.
All this comes on the heels — a mere week later — of the Office of Legal Counsel’s stretching of executive privilege to include the president’s “private advisers,” meaning non-government employees. If I put my thinking cap on, and look at these two closely timed events, well, I sure get the impression a “private adviser” was up to his elbows in the Biglaw EOs. (We already know Steve Bannon said the goal of the EOs was to “put you out of business and bankrupt you,” and that Boris Epshteyn was allegedly connecting capitulating firms to the Commerce Department.)
For an administration that put out a press release, a fact sheet, and a signing-ceremony photo op for every one of these orders, the sudden bashfulness is something to behold. They wanted the whole world to know these orders existed, now they don’t want anyone to know who to blame for them.
Earlier: DOJ Wants Susman Godfrey Kicked Off The ABA’s Case Because DOJ Subpoenaed Susman Godfrey
The DOJ’s Biglaw Subpoena Explanation Raises More Questions Than It Answers
Trump Turns On Capitulating Biglaw Firms HAHAHAHAHA
The ABA Wants The White House’s Receipts On The Biglaw Executive Orders
DOJ Drops Defense Of Biglaw Executive Orders, Leaving Capitulating Firms Holding $940 Million Bag
Trump Is 0-4 Defending His Biglaw Executive Orders
Trump Sued By ABA Over… Gestures At Months Of Lawlessness
Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Bluesky @Kathryn1
The post The Trump Administration Says The Names Of The People Who Wrote The Biglaw Executive Orders Are A Secret appeared first on Above the Law.
A federal judge asked the Trump administration a simple question: who drafted, reviewed, and approved the executive orders targeting Biglaw firms?
You know the kind of basic information that appears on privilege logs every single day. Not the internal communications, not the drafts, the edits, the strategy memos (at least not yet). Just the names of the people who worked on the orders that tried to blacklist disfavored law firms out of existence. In the ABA’s lawsuit over that whole campaign, Judge Amir Ali ordered the government to file a notice identifying the individuals involved in drafting the Biglaw Executive Orders, and the custodians of a handful of records. The most basic housekeeping in all of civil discovery.
…The administration would rather not.
The ABA sued the Executive Office of the President in June 2025, arguing that the executive orders, plus the wave of deals that spooked firms into capitulating before an order ever arrived, added up to a single coordinated campaign to intimidate the legal profession, not a scattering of unrelated grievances. Judge Ali denied the government’s motion to dismiss, and the case moved into discovery, where the ABA started asking the White House to turn over its receipts: internal communications about the orders and the deals, including those involving Boris Epshteyn and Steve Bannon. The government has spent the summer trying to make discovery go away — it subpoenaed law firms rather than hand over its own documents — which is still pending. After a July 31 hearing on the ABA’s motion to compel, Judge Ali entered the order now at issue.
In a notice filed Monday, DOJ formally invoked the presidential communications privilege — the Nixon-tapes privilege, reserved for the confidential advice a president gets while governing — over the identities themselves. The government’s position is that telling a court who drafted an executive order — a public document, signed by the President, and struck down as unconstitutional four separate times — would do such violence to the separation of powers that the President has “no choice” but to assert the privilege over the names as well as any advice they may have provided.
And DOJ is admirably candid about why. The whole point of making the government name these people, it says, is “to name and shame them—but that is the very chilling effect that the presidential communications privilege is supposed to protect. This is Nixon distilled.” What a wild thing to write down. First of all, United States v. Nixon is the case the government lost! It stands for the proposition that while executive privilege exists, it is not absolute! The Supreme Court ordered the tapes handed over and the President resigned two weeks later. And again, this is about the names of who is involved not even the substance of the advice receivd.
And, not for nothing, but you only worry about people being “shamed” if there’s something there to be ashamed of.
All this comes on the heels — a mere week later — of the Office of Legal Counsel’s stretching of executive privilege to include the president’s “private advisers,” meaning non-government employees. If I put my thinking cap on, and look at these two closely timed events, well, I sure get the impression a “private adviser” was up to his elbows in the Biglaw EOs. (We already know Steve Bannon said the goal of the EOs was to “put you out of business and bankrupt you,” and that Boris Epshteyn was allegedly connecting capitulating firms to the Commerce Department.)
For an administration that put out a press release, a fact sheet, and a signing-ceremony photo op for every one of these orders, the sudden bashfulness is something to behold. They wanted the whole world to know these orders existed, now they don’t want anyone to know who to blame for them.
Earlier: DOJ Wants Susman Godfrey Kicked Off The ABA’s Case Because DOJ Subpoenaed Susman Godfrey
The DOJ’s Biglaw Subpoena Explanation Raises More Questions Than It Answers
Trump Turns On Capitulating Biglaw Firms HAHAHAHAHA
The ABA Wants The White House’s Receipts On The Biglaw Executive Orders
DOJ Drops Defense Of Biglaw Executive Orders, Leaving Capitulating Firms Holding $940 Million Bag
Trump Is 0-4 Defending His Biglaw Executive Orders
Trump Sued By ABA Over… Gestures At Months Of Lawlessness
Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Bluesky @Kathryn1
The post The Trump Administration Says The Names Of The People Who Wrote The Biglaw Executive Orders Are A Secret appeared first on Above the Law.
