by Jon Greenbaum
A month after the 2024 Presidential Election, I shared my initial thoughts on the then-upcoming legal response to the second Trump Administration. Recently, my former colleague Thomas Silverstein asked for an updated perspective.
Through my firm, Justice Legal Strategies, I work closely with Democracy Forward and Democracy Defenders, two organizations central to the nonprofit legal response to the Trump Administration. When the Trump Administration does something bad, I usually learn about it almost immediately. When asked, I participate in the legal response efforts.
The incredible pace of the first month has continued, and there is no indication that it will let up. The Trump Administration has been unrelenting in attempting to destroy democracy and the federal government as we know it. In its place, the Administration is working to install a government and society dominated by President Trump and his followers. Within the executive branch, employees who do not follow presidential edicts — regardless of their legality—are on thin ice. The Administration has flouted constitutional and congressional constraints. It has fired the heads of independent agencies, even when Congress has created removal restrictions. It has refused to spend funds appropriated by Congress for activities with which it disagrees. Frighteningly, it is increasingly moving toward the militarization of domestic law enforcement.
Fortunately, the progressive legal community—in addition to some governors and state attorneys general—has responded with equal intensity. At the time of writing, Just Security’s tracker listed over 500 lawsuits against the Administration. By my estimate, progressive legal groups initiated roughly two-thirds of those actions, and those groups have participated as amicus in many others. While the Supreme Court has reversed or weakened some victories, the overall quality and impact of the legal work have been strong. Here are some insider observations on the progressive legal response.
Preparation has made a difference
Democracy Forward deserves particular credit here. Democracy Forward was one of numerous nonprofits founded after the 2016 presidential election. It was not well-known during early years and was often confused with other organizations such as Protect Democracy, which was created at around the same time. Democracy Forward has elevated its importance and profile enormously because of its prominence in the legal response to the Trump Administration. This was earned. Democracy Forward invested early in preparations for the possibility of a second Trump Administration. It did so on two levels: first, it expanded its internal litigation capacity, and, second, it launched Democracy 2025, a collaborative hub responding to Project 2025, the Heritage Foundation’s blueprint for Trump’s second term. Democracy Forward spent the last nine months of 2024 creating spaces to bring people together and sharing research and other informational materials. I began consulting with Democracy Forward on April 15, 2024, the day Justice Legal Strategies opened for business. I participated in the development of Democracy 2025 and have watched Democracy Forward’s impressive growth and impact.
I wished that there would have been more groups preparing like Democracy Forward across the progressive legal sector, but there was enough preparation to hit the ground running and keep going.
Coordination, communication, and community
When I left the Department of Justice for the Lawyers’ Committee for Civil Rights Under Law at the end of 2003, I learned how competitive the progressive legal community is. Tensions over who files their lawsuit first after certain laws are passed, who represents a particular client, who testifies before Congress on a particular issue, who gets the media attention, and, perhaps most of all, who is the funders’ favorite are commonplace. At times, the environment can be frosty and inefficient.
Though it would be inaccurate to say that the progressive legal community’s response to the Trump Administration has been free of competition and tension, coordination, communication, and community have eclipsed those dimensions by far. There are multiple platforms through which groups keep each other informed and learn from one another. Victories are widely and enthusiastically celebrated. There is a level of generosity that I have not seen previously seen from this community.
The coordination has extended to state and local governmental officials who are challenging the Trump Administration efforts. In numerous instances, beginning with the birthright citizenship cases filed on Day One of the Trump Administration, state attorneys general have filed cases that parallel those brought by the progressive legal groups. In some instances, progressive legal groups serve as counsel to states, including behind the scenes. However, these groups represent cities and counties more frequently. There is frequent communication, usually orally, between state attorneys’ general offices and advocates.
A broader coalition
In addition to progressives, there are individuals across the ideological spectrum who are concerned about the authoritarian efforts of the Trump Administration. Those voices are essential because the defense of democracy needs to be a broader movement. Norm Eisen, the co-founder of Democracy Defenders Fund/Action has been particularly instrumental in bridging relationships between the progressive community and moderates and conservatives, including those who served in prior Republican presidential administrations. The Board of Democracy Defenders Action reflects its ideological diversity as it includes long-time conservative commentator Bill Kristol; Stephen Richer, who was elected as a Republican to run elections in Maricopa County, Arizona; Lavora Barnes, the former Chair of the Michigan Democratic Party; and Rahna Epting, the Executive Director of MoveOn.
The shift from Big Law to small firms
During my two decades at the Lawyers’ Committee for Civil Rights Under Law, our secret sauce was co-counseling with law firms, including most of the nation’s largest firms that are sometimes referred to as “Big Law.” In one notable Lawyers’ Committee case, Kirkland & Ellis contributed more than $20 million of attorney and staff time and more than $2 million in out-of-pocket expenses to challenge the State of Maryland’s discriminatory treatment of its public Historically Black Colleges and Universities (HBCUs). Without Kirkland, we would not have achieved the $577 million settlement for the HBCUs that came only after 12 years of hard-fought litigation in a case on which I spent more time than on any other in my career to date.
Numerous Big Law firms served as pro bono co-counsel in lawsuits challenging the misdeeds of the first Trump Administration. The experience could hardly be more different this time. The explicit capitulation of several firms, including Kirkland, to the Trump Administration through “settlements” has been widely discussed. But more significantly, Big Law has been virtually absent with a few exceptions. Like much of corporate America, Big Law firms are afraid of being Trump targets, and so they have laid low.
Smaller law firms have stepped up in Big Law’s place. The firms range from those as small as one or few attorneys, like Justice Legal Strategies, to those that have dozens of attorneys. The quality of lawyering at many of these firms is comparable to that of larger firms, and they often operate more efficiently and nimbly than Big Law. But there are structural limitations. The smaller law firms are limited in how much pro bono work they can do, and frequently progressive legal organizations co-counseling with them or institutional clients need to pay them, often at reduced rates. Also, small law firms are less equipped to handle time-intensive litigation, particularly litigation that includes extensive discovery, including document production and depositions. Many of the cases against the Trump Administration so far have not been discovery-intensive, but that may change over time.
The injection of talent from former governmental attorneys
Many of the career attorneys who worked at the Department of Justice and other governmental agencies saw public service as their calling. There was a certain built-in conservatism at the Department of Justice that historically created stability to smooth the differences between Democratic and Republican presidential administrations.
For many attorneys working in the federal government, staying in the government was not tenable because political demands from Trump appointees overrode the imperatives of adhering to the law and ethical obligations. The present Trump Administration provided additional incentive by offering buyouts, including to most of the attorneys in the Civil Rights Division of the Department of Justice resulting in an attrition rate of more than 75% there.
One byproduct of this exodus has been an unprecedented glut of available legal talent. If you look at the staff bios at Democracy Forward alone, you will see attorney after attorney who worked for the federal government at the beginning of 2025. The attorneys who used to work in the Federal Programs Branch of the Department of Justice’s Civil Division are a particularly valuable group of additions to the progressive legal community, because they used to defend the federal government in these types of cases and can anticipate the types of arguments that the government routinely uses when defending challenges to Presidential and agency actions.
Resilience and endurance
I have long thought that the most underrated traits of successful veteran progressive attorneys, including civil rights attorneys, are resilience and endurance. These are rewarding jobs, and it is an honor to represent such admirable clients in vitally important cases; but the work is mentally, physically, and emotionally draining. The first Trump Administration, combined with the COVID-19 pandemic, was unusually exhausting, and I just felt relief when it was over.
The current situation is exponentially worse. Democracy is at stake. The last Trump Administration had senior officials who intervened on occasion to restrain him from taking the most extreme measures. The current one not only does not hold him back but amplifies the damage he does. The majorities in both houses of Congress have lost any concept of institutional integrity. The Supreme Court, with Justices Brett Kavanaugh and Amy Coney Barrett replacing Anthony Kennedy and Ruth Bader Ginsburg, have become his chief enablers, as evidenced by the Court’s lawless presidential immunity decision in Trump v. U.S. and countless shadow docket decisions staying injunctions entered by the lower federal courts in challenges to the illegal acts of the second Trump Administration. Until recently, American autocracy was unimaginable. Now we are staring at the possibility.
The Trump Administration is unrelenting. The emergencies are broad, deep, and constant. I feel fortunate to be part of the response but not one of the leaders. I have spent my career fighting for justice and often in a central role. But leading this effort would be too much for me at this time in my life. I have moments where it feels like too much as it is. Accordingly, I have enormous admiration for Skye Perryman, Norm Eisen, Anthony Romero and others who are taking on a disproportionate share of the burden.
Perhaps most daunting of all is that we are only about 20% through this Administration. The degree of resilience and endurance it will take to get through the remainder of this term is unfathomable. But from what I have seen, I am confident we will. n
Jon Greenbaum (jgreenbaum@justicels.com and https://justiceblog.substack.com/) is the founder of Justice Legal Strategies (www.justicelegalstrategies.com) and is the former Chief Counsel of the Lawyers’ Committee for Civil Rights Under Law.
