The EO serially violated the Constitution. The ruling will affect several other cases as the administration reaps lucrative settlements.
A federal judge in Washington, D.C., has issued an injunction barring the Trump administration from enforcing the executive order President Trump issued against Perkins Coie, a brazenly unconstitutional attempt to put the law firm out of business — or, just as likely, to extort tens of millions of dollars in legal services from it, as the president has succeeded in doing with several similarly targeted law firms, which decided to settle rather than continue to fight while hemorrhaging clients and employees.
Judge Beryl Howell’s 102-page opinion in Perkins Coie v. U.S. Dept. of Justice, issued late Friday, is a thoroughgoing rebuke of the EO 14,230, which the president issued on March 6.
That’s no surprise.
As I said at the time, the EO violates the Constitution in several ways, so blatantly that it would be impossible for a president, sworn to uphold the Constitution in what is now his fifth year in the nation’s highest office, not to know that — to say nothing of Attorney General Pamela Bondi, who has been directed to implement the EO. The same thing can be said for the orders targeting other law firms, and those menacing others on the Trump enemies list. (Judge Howell discusses the other EOs throughout her opinion; a good summary of the orders targeting law firms is provided by the superb brief (at pp. 5-14) filed by former Bush-43 Solicitor General Paul Clement, who is representing Wilmer Hale in opposing the EO Trump issued against that firm.)
Howell, an Obama appointee, concluded that the Perkins Coie EO was patently retaliatory. The president targeted the firm mainly because two lawyers who haven’t been associated with the firm for four years — Marc Elias and Michael Sussmann — represented some of his Democratic political rivals, particularly Hillary Clinton’s 2016 campaign. The lawyers, collaborating with the Fusion GPS research firm, were active in the production of bogus opposition research — including the notorious Steele dossier — that portrayed then-candidate Trump as a clandestine agent of Vladimir Putin’s Russia regime. The research was furtively supplied to the FBI and other agencies, resulting in largely baseless investigations — counterintelligence, criminal, special counsel, and congressional — that hamstrung Trump’s first administration.
While Elias and Sussmann were still at the firm, it represented several clients who successfully opposed President Trump’s unsubstantiated claims that the 2020 election was stolen from him. Perkins Coie also brought voting rights lawsuits, which the EO describes as work “with activist donors including George Soros to judicially overturn popular, necessary, and democratically enacted election laws, including those requiring voter identification.”
About a month before the issuance of the EO, moreover, long after the departures of Elias and Sussmann, the firm provided pro bono representation to a group of transgender military service members who are challenging another Trump EO (14,183), which prohibits persons identifying as transgender from serving in the armed forces. (Another federal judge in Washington, D.C., has blocked enforcement of that EO.)
The Perkins Coie EO targeted the firm for all these slights. In addition, the president accuses the firm of “racially discriminat[ing] against its own attorneys and staff, and against applicants.” Yet, when pressed for details, the Justice Department could not cite any actual instance of racial discrimination, as opposed to statements laudatory of “diversity.” A fellowship program for first-year law students cited by the Trump DOJ turns out to be inclusive of all students, leading the government finally to concede that it was not discriminatory. The Trump DOJ also cited the firm for adopting the so-called Mansfield Rule in its hiring protocols, but then had to concede that the rule merely calls on firms to expand the interview pool (something the administration claims to favor); there is no evidence that it established racial hiring quotas or has been implemented in a manner that violates non-discrimination laws.
Howell lays out these details to demonstrate that the president’s EO is retaliatory. This is further elucidated by many of the president’s public statements over the past nine years, notwithstanding the Justice Department’s often incoherent attempts to concoct more benign rationalizations — such as Trump’s assertedly deep concerns about “the public interest.”
The opinion stresses the centrality of independent lawyers to a functioning free republic and the need to ensure that lawyers may, without fear of government retaliation, represent unpopular persons and causes. Even before the Constitution’s explicit protections of the right to counsel in the Fifth and Sixth Amendments were ratified, the American tradition in this regard traces to John Adams’s representation of eight British soldiers charged with murder in connection with the Boston Massacre.
Invoking as her starting point the timeless phrase from Henry VI, “The first thing we do, let’s kill all the lawyers,” Howell quips that the president has adapted the Bard: The EO “takes the approach of ‘Let’s kill the lawyers I don’t like‘ (emphasis in original), sending the clear message: lawyers must stick to the party line, or else.”
In jurisprudential terms, the judge quotes from the Supreme Court’s 2001 decision in Legal Servs. Corp. v. Velazquez: “An informed, independent judiciary presumes an informed, independent bar.” Howell urges that “disposing of lawyers is a step in the direction of a totalitarian form of government” (a quote drawn from a 1985 dissenting opinion by Justice John Paul Stevens, divining the relevance of Shakespeare’s line). She notes Tocqueville’s observation that, in America, “the authority . . . intrusted to members of the legal profession . . . is the most powerful existing security against the excesses of democracy.”
Howell concludes that the EO’s unabashed viewpoint discrimination — essentially, its penalizing of advocacy on behalf of Trump’s political opponents — violates the firm’s First Amendment rights to speech and association. She further holds that the EO runs roughshod over the firm’s constitutional right to equal protection of the law. Howell also finds that the EO violates the right to counsel of the firm’s clients, transgressing the Fifth and Sixth Amendments. Finally, the judge rules that the EO denies the firm the Fifth Amendment guarantee of due process of law, with the president publicly accusing Perkins Coie of misconduct, pronouncing the firm guilty, and imposing ruinous punishments in the absence of judicial trial, sentencing, and appeal.
Those punishments include suspension of security clearances. As is its wont, the Trump DOJ litigated this point disingenuously: It claimed that the issue was not justiciable by citing a case that applies to a different situation (an individualized assessment denying a person a security clearance), and it ignored a wealth of binding authority holding that judicial review was available for sweeping categorical bars without any individualized evaluation process.
Howell also spotlighted the oddity that the security-clearance suspensions did not invoke national security — which is supposed to be the paramount consideration — as any part of the calculus. Meanwhile, the supposed urgency of suspending security clearances at other firms targeted by Trump EOs apparently evaporated when they settled with the White House after agreeing to provide tens of millions of dollars in free legal work for the president’s preferred causes.
On that score, Howell noted that the “Trump White House is keeping track of the growing value in free legal work being promised by the law firms making the deals.” She related that, in signing a similar EO on April 9 (targeting the Susman Godfrey firm),
President Trump used the occasion to recount that the administration had “signed with many law firms, the ones that we thought were inappropriate,” and stated that “they went for some pretty big numbers.” . . . President Trump then asked Deputy White House Chief of Staff Steven Miller, “what’s the total right now Steve?” and Miller responded, “getting to close to, probably, six, 700 million now I would think. Multiple at 100 million, some at 125 million. So, the numbers are adding up. We’re going to be close to a billion soon.”
The Perkins Coie EO also sought to imperil the firm’s business by not only denying it government contracts (not a major part of its work) but requiring government contractors to disclose business with the firm and lay the groundwork to terminate contracts for which the firm has been retained (a significant part of the firm’s practice).
Further paralyzing Perkins Coie’s capacity to function as a law firm, the EO undertook to limit its access to government buildings and government officials. In addition, the president ordered that government agencies “refrain from hiring any employees of Perkins Coie,” absent a waiver — a restriction covering all 2,500 of the firm’s personnel, from the top partners down to the mail room clerks.
Apart from highlighting the lack of racial discrimination evidence, Howell cast significant doubt on the president’s authority to direct the Equal Employment Opportunity Commission to review even sectors of American industry, much less specific businesses. The EEOC’s investigative authority is limited to charges formally filed with the commission; it may demand access only to evidence directly related to a formal charge. The Trump DOJ admitted that no formal charge had been filed.
The government had also argued that Perkins Coie lacked standing to challenge the president’s EEOC directive because, the Trump DOJ insisted, the operative part of the EO (Section 4) did not mention the firm by name (it just generally mentions “the practices of large law firms”). This proved embarrassing. Put aside that the EO expressly accuses the firm of racial discrimination. Howell took pains to quote the DOJ’s own memo: “Section 4 directs the Attorney General and the Chair of the [EEOC] to review whether Perkins Coie and like employers are violating the civil rights laws.”
Similar broadsides against the Justice Department’s competence and good faith thread Howell’s opinion. For example, in moving to dismiss Perkins Coie’s complaint, the DOJ fails to cite any rule of civil procedure as a basis for the requested dismissal. That dereliction, Howell snarked, left the court to try to sort out what the DOJ was claiming “based on vague headings used in the government’s memorandum.” The DOJ also ignored a Washington district court rule that “requires a statement of undisputed material facts supported by record citations.” It is unclear whether the government lawyers were unaware of this well-known requirement or simply did not want to concede that Perkins Coie made claims that the Trump DOJ could not credibly dispute.
Howell also rebuked the DOJ over its violation of the temporary restraining order (TRO) issued back in March. The TRO had directed the government to refrain from “any reliance on the statements in Section 1 of the [EO],” which accused Perkins Coie of “dishonest and dangerous activity.” After filing a first status report regarding the government’s compliance with the TRO, the DOJ inserted into its second status report the following: “The government reserves the right to take all necessary and legal actions in response to the ‘dishonest and dangerous’ conduct of Perkins Coie, as set forth in [the EO].” Howell observed that the gratuitous quoting of statements in Section 1 that the government was specifically enjoined from relying on “raised some concern about the general presumption by courts that executive officials will act in good faith.”
In issuing the injunction, Howell found that Perkins Coie faced irreparable harm due to both the deprivation of its constitutional rights and the dramatic losses of business and revenue that immediately followed the EO. Symmetrically, she stressed that firms that settled with the president had been willing collectively to commit to hundreds of millions of dollars in legal services, underscoring that the “coercive” EOs were existential threats.
Finally, because I’ve argued that the EOs are unconstitutional bills of attainder, I note that Howell opted not to reach that question because “both parties took the position that the prohibition on bills of attainder applies only to Congress.” The judge, nevertheless, included a lengthy footnote (pp. 91-92, n.36) that was clearly sympathetic to the theory that an executive declaration declaring punishment without trial is no less offensive than would be a congressional declaration. Though the Framers did not specify that the bill of attainder proscription applies only to Congress, that is a reasonable inference from its placement in Article I. Yet, it was the Framers’ theory that the president could not legislate at all, being limited to faithfully executing the laws, so they’d likely have seen no need to specify in Article II that the president could not engage in lawless legislation.
Given the now-common malfeasance of executive legislating by executive order, the assumption that the bill of attainder prohibition is limited to Congress needs reexamination. Judge Howell correctly decided that this case was not the occasion for that since the parties took the issue off the table. And in any event, the ruling that the EO violated the firm’s due process rights covers much of the ground a bill of attainder finding would have covered.
Judge Howell’s ruling is sure influence other judges now considering President Trump’s EOs — and not just those targeting law firms. The Justice Department will probably appeal. That is not likely to go well, but the president appears to be dug in on this wayward strategy. After all, as he and Stephen Miller ran the numbers, he is already close to squeezing a billion dollars out of Big Law.