by
Win
McNamee/Getty
Images)
On
Monday,
the
U.S.
Department
of
Justice
waved
the
white
flag
in
the
Biglaw
executive
order
cases,
filing
a
voluntary
dismissal
request,
seeking
to
quietly
slink
away
from
Donald
Trump’s
constitutionally
suspect
vendetta
against
major
law
firms.
It
was,
by
any
measure,
a
remarkable
concession.
After
months
of
bluster,
the
administration
appeared
ready
to
admit
what
judges
across
the
ideological
spectrum
had
already
made
clear
—
the
orders
weren’t
going
to
survive
constitutional
muster.
Cue
the
record
scratch.
Because
by
Tuesday
morning
—
less
than
24
hours
later
—
the
Trump
administration
had
apparently
decided
that
conceding
defeat
is
for
losers.
According
to
reporting
from
the
The
New
York
Times,
the
administration
abruptly
reversed
course
and
now
plans
to
renew
its
defense
of
the
very
same
executive
orders
it
had
just
tried
to
abandon.
Wake
up,
babe…
new
civ
pro
doctrine
of
“take
backsies”
just
dropped.
By
10
a.m.
Tuesday
morning,
the
same
DOJ
officials
who
filed
to
get
out
of
the
case
were
back
with
a
completely
different
litigation
strategy
(if
you’re
bold
enough
to
call
it
that).
In
an
email
to
the
four
firms
fighting
the
administration
—
Jenner
&
Block,
WilmerHale,
Perkins
Coie,
and
Susman
Godfrey
—
a
department
official
reportedly
apologized
for
the
short
notice
and
said
the
government
would
file
a
motion
to
withdraw
its
own
voluntary
dismissal.
The
firms
were
asked
to
let
DOJ
know
within
a
half
hour
whether
they
planned
to
oppose
the
administration’s
attempt
to
un-ring
the
bell.
Thirty
minutes
seems
like
a
short
turn
around
to
make
a
major
litigation
decisions,
but
let’s
be
so
fucking
for
real
right
now
—
the
firms
needed
all
of
thirty
seconds
to
know
what
they
wanted
to
do
(though
nothing
official
has
been
filed
thus
far).
What
exactly
*is*
the
DOJ
planning
on
telling
the
appellate
court?
“Your
Honors,
as
the
court
will
recognize,
our
original
filing
never
said
‘Simon
Says,’
so….“
The
glaring
question
of
WHY
is
also
up
for
debate.
A
White
House
official
reportedly
insisted
there
are
ongoing
discussions
within
the
White
House
Counsel’s
Office
about
how
to
proceed.
Was
Monday’s
concession
a
rogue
act
of
realism
inside
DOJ?
Did
someone
at
the
White
House
see
headlines
about
the
administration
blinking
and
decide
that
simply
would
not
do?
Did
a
certain
someone
wake
up
Tuesday
morning,
scroll
social
media,
and
decide
he
did
not
care
for
the
optics
of
surrender?
We
may
never
know.
But
federal
appellate
litigation
is
not
supposed
to
operate
like
a
group
chat
where
someone
says
“nvm”
five
minutes
later.
Earlier:
DOJ
Drops
Defense
Of
Biglaw
Executive
Orders,
Leaving
Capitulating
Firms
Holding
$940
Million
Bag
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
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