| During the first months of his current term in office, President Donald Trump issued a series of executive orders targeting various law firms for onerous sanctions, including loss of security clearances and access to government buildings for firm personnel, termination of contracts with the targeted firms, new disclosure requirements for clients of those firms that have government contracts, and special scrutiny for alleged civil rights violations. These executive orders were transparent efforts to punish firms that had clients or employed attorneys whom Trump regarded as political enemies. |
| Accordingly, some targeted firms sued, forcefully arguing that the targeting orders are unconstitutional. Thus far, every district court to have ruled in these cases has sided with the law firms. For example, in May, Federal District Judge Beryl A. Howell invalidated the order targeting the Perkins Coie firm, explaining that Trump’s use of “the powers of the federal government to target lawyers for their representation of clients and avowed progressive employment policies in an overt attempt to suppress and punish certain viewpoints . . . is contrary to the Constitution.” |
| Meanwhile, however, some other law firms, fearing the loss of business from tremulous clients, capitulated. For example, just a week after Trump signed an executive order targeting the law firm of Paul, Weiss—described in the order as having played “an outsized role in undermining the judicial process and in the destruction of bedrock American principles” by, among other things, representing clients who sued January 6 insurrectionists—he issued a superseding order revoking it in recognition of the firm’s agreement to provide $40 million worth of pro bono services for “veterans, fairness in the justice system, and combating anti-Semitism; and other similar initiatives.” |
| In partial fulfillment of that commitment and similar ones by other firms, some of those firms began contributing their services to the Commerce Department, reportedly aiding in implementing the president’s trade and tariff policies. Word of that arrangement reached top Democrats in Congress, who, according to a recent article in The New York Times, sent letters to two of the firms at issue asking questions about the work and warning them that providing free services to the government “may violate the law.” |
| Can that be right? Why would the law forbid the government from accepting free services? |
| The Antideficiency Act |
| The letters to the firms point to the Antideficiency Act. The predecessor to the current version of the Act as well as key provisions of its current incarnation were adopted to prevent the executive branch from spending money beyond what Congress had authorized. Those other provisions limit the ability of executive branch officials to undertake rogue projects. An additional provision—the one that the Democrats in Congress undoubtedly had in mind in their letters to the law firms—forbids government employees from accepting “voluntary services” beyond those authorized by law or in “emergencies involving the safety of human life or the protection of property.” That provision was enacted partly in response to the fear that by accepting nominally voluntary services, executive officials could incur an obligation to pay for those services, thus undercutting the overall goal of the Antideficiency Act of restricting payments to those authorized by Congress. |
| But what if the services in question really are voluntary in the sense that those providing the services make crystal clear that they will not seek any compensation for their services? Does the provision still apply? |
| The short answer is yes, because its text clearly says so. It applies across the board to “voluntary services,” not to, say, “only those voluntary services which might not turn out to be entirely voluntary because they result in a government obligation to pay.” |
| That is a textualist answer, but we can also identify a policy justification for banning the free provision of services to the government beyond those authorized by Congress or that address an emergency. In an insightful 2018 article in the California Law Review, Professors Margaret H. Lemos & Guy-Uriel Charles explained that while gifts of money, goods, or services “to government can do enormous good,” they “are not as costless as they might first seem.” Among the costs the authors identified is the risk that “gifts to government may undermine norms of collective self-government by enabling certain individuals—wealthy ones—to exert outsized influence on public policy.” |
| Notably, the law does allow people to make gifts of cash, goods, or services as specifically authorized by statute, but where it does so, the relevant statutory text specifies the programs to which the gifts will be put, thus mitigating the risk that wealthy individuals will be able to direct government policy through their largesse. If one wishes to donate money outside the scope of one of those specific programs, one can, but another statutory provision mandates that the funds can only “be used to reduce the public debt,” not for some pet project of the donor. |
| Does the Antideficiency Act Apply? |
| But if it is now clear that the law forbids the voluntary donation of services to the United States government, it is less clear that the Democrats who sent the law firms the letters were correctly applying the Antideficiency Act. Can it really be said that Paul, Weiss and the other firms that are providing the government with legal services are doing so voluntarily? |
| In one sense they were. The firms that agreed to provide the government with legal services in exchange for the revocation of the executive orders that targeted them could have sued instead. However, that is hardly a fair measure of voluntariness. As Judge Howell’s opinion in the Perkins Coie case underscores, the firms that settled did so in exchange for something: they got out from under the onerous measures imposed by the targeting executive orders. |
| More generally, the Antideficiency Act has not been construed to forbid a person or firm from providing the government with services as part of settling a lawsuit. Indeed, such settlement provisions are rather routine. For example, as part of the settlement of claims by the United States and other plaintiffs arising out of the Deepwater Horizon oil spill, BP agreed to provide habitat restoration services (in addition to providing funding for such services). In the absence of an oil spill and ensuing settlement agreement, had BP voluntarily provided similar environmental services to the government, that might have violated the Antideficiency Act. Because the agreement to provide such services was part of a settlement of claims, however, the Act was not implicated. |
| To be sure, the law firms that have been fulfilling their promises to provide uncompensated legal services did not make those promises in response to a lawsuit, but that hardly matters for purposes of determining whether the services they are providing are “voluntary.” They plainly are not. |
| The Democratic lawmakers who wrote the law firms inquiring about the services those firms are providing the government are right to be concerned about law breaking. But the law firms are not the ones breaking the law, and the law that has been broken is not the Antideficiency Act. The law breaker is the president, and the law he violated is the Constitution. |
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