Professor David McGowan’s article Fealty Oaths can be found on SSRN here. He provides the following abstract –
“In Spring 2025 President Trump issued one memorandum and five executive orders targeting six law firms for adverse government action. The orders prompted four successful suits by targeted firms but a greater number of agreements between firms and the administration involving promises by firms in return for rescinding or not issuing orders. The orders issued were unique in the history of the American bar, both in the personal nature of grievances recited and in the overt proclamations in the orders that they retaliated for representative work the President disfavored.
“This paper examines the trial court records in the four successful challenges to orders to document the threats the orders presented to firms, to analyze the arguments most effective in persuading trial courts to enter judgments for the firms, and to show why the government’s defenses failed. It identifies differences among the rulings, such as differing treatment of right-to-counsel claims, and documents the surprising inability of the government to answer even basic questions about the orders.
“The paper then examines why each order effectively confessed to being animated by retaliatory viewpoint discrimination. Retaliation for protected conduct is a fact question and often the most difficult to prove in court, but the orders effectively conceded this fact. The paper argues that this overt illegality, and the chilling effect it created, was the true point of the orders, and that the orders were surprisingly successful in achieving this goal. The government’s conduct of these cases reinforces this conclusion.
“Finally, the paper examines the economic structure and behavior of firms that declined to fight–either capitulating to the administration or remaining silent for fear of attracting adverse attention. The paper shows that capitulation was not economically necessary and that the choices of such firms reflect the character of those firms rather than economic necessity. “
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