Court Grants WilmerHale Law Firm Injunction Against President Trump’s Executive Order Targeting Firm
A (relatively) short excerpt from today’s long decision by Judge Richard Leon (D.D.C.) in Wilmer Cutler Pickering Hale & Dorr LLP v. Executive Office of the President; there’s a lot going on here, but in general I agree with the First Amendment and Sixth Amendment arguments (I’m not sure either way about the others):
The cornerstone of the American system ofjustice is an independent judiciary and an independent bar willing to tackle unpopular cases, however daunting. The Founding Fathers knew this! Accordingly, they took pains to enshrine in the Constitution certain rights that would serve as the foundation for that independence. Little wonder that in the nearly 250 years since the Constitution was adopted no Executive Order has been issued challenging these fundamental rights. Now, however, several Executive Orders have been issued directly challenging these rights and that independence. One of these Orders is the subject of this case. For the reasons set forth below, I have concluded that this Order must be struck down in its entirety as unconstitutional. Indeed, to rule otherwise would be unfaithful to the judgment and vision of the Founding Fathers! …
“[T]he First Amendment prohibits government officials from retaliating against individuals for engaging in protected speech.” WilmerHale alleges that “[t]he Order blatantly defies this bedrock principle of constitutional law.” I agree!
To establish First Amendment retaliation, WilmerHale must plausibly allege and then prove: “(1) [WilmerHale] engaged in conduct protected under the First Amendment; (2) [defendants] took some retaliatory action sufficient to deter a person of ordinary firmness in [WilmerHale’s] position from speaking again; and (3) a causal link between the exercise of a constitutional right and the adverse action taken against [WilmerHale].”
WilmerHale represents a range of clients in litigation. This advocacy is unquestionably protected conduct under the First Amendment. See Legal Servs. Corp. v. Velazquez (2001) (treating “the analysis of certain legal issues” and their “presentation to the courts” as “speech and expression”); Lehnert v. Ferris Faculty Ass’n (1991) (“We long have recognized the important political and expressive nature of litigation.”); McDonald v. Smith (1985) (“[F]iling a complaint in court is a form of petitioning activity ….”)….
The WilmerHale Order is, on its face, retaliation for the firm’s protected speech. Indeed, § 1 outlines the motivations of the Order, including WilmerHale’s pro bono practice, “obvious partisan representations to achieve political ends,” and involvement in immigration and election litigation.
The Order goes on to impose a kitchen sink of severe sanctions on WilmerHale for this protected conduct! In addition to vilifying the firm in § 1, it suspends WilmerHale employees’ security clearances, with a looming threat of full revocation of those clearances; coerces the firm’s federal contractor clients to end their engagements with the firm or face cancellation of their contracts; targets the firm for investigation into supposed racial discrimination; threatens to bar its employees from entering federal buildings or engaging with federal employees; and prohibits agencies from hiring firm employees absent a waiver from the relevant agency heads.
Any one of those sanctions would cause clients to strongly reconsider their engagements with WilmerHale. Taken together, the provisions constitute a staggering punishment for the firm’s protected speech! The Order is intended to, and does in fact, impede the firm’s ability to effectively represent its clients! For example, WilmerHale attorneys may not be able to enter federal courthouses for trial, meet with federal regulators, or access classified materials necessary for working on national security matters. The Order also pressures the firm’s federal contractor clients to either end their relationships with WilmerHale or face possible cancellation of their contracts…..
“At the heart of the First Amendment’s Free Speech Clause is the recognition that viewpoint discrimination is
Article from Reason.com
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