By Openly Retaliating Against Disfavored Law Firms, Trump Attacks Free Speech and the Right to Counsel
Beginning in late February, President Donald Trump has issued a series of executive orders aimed at punishing major law firms for representing clients and advocating causes he does not like. The penalties include revoking lawyers’ security clearances, restricting their access to federal buildings and officials, canceling federal contracts with the targeted firms, and scrutinizing other contractors for ties to them. Today two of those firms, WilmerHale and Perkins Coie, asked federal judges in the District of Columbia to issue permanent injunctions against the orders affecting them, which they say blatantly violate the First Amendment and other constitutional guarantees.
Paul, Weiss, which Trump targeted in a March 14 executive order, already has bent to Trump’s will. A week later, it agreed to a set of humiliating conditions in exchange for revocation of the order, which threatened to cripple its business. At least eight other law firms have followed that example, preemptively capitulating to avoid orders aimed at them. But a few firms, including WilmerHale and Perkins Coie, chose to stand their ground, and they seem likely to succeed in court.
Trump targeted WilmerHale in an executive order issued on March 27. The very next day, U.S. District Judge Richard J. Leon granted WilmerHale a temporary restraining order (TRO), noting that the First Amendment prohibits government retaliation for constitutionally protected speech, including “retaliatory actions based on perceived viewpoint.” He added that “the retaliatory nature of the Executive Order at issue here is clear on its face,” and “there is no doubt this retaliatory action chills speech and legal advocacy, or that it qualifies as a constitutional harm.”
Leon was skeptical of WilmerHale’s challenge to Trump’s revocation of security clearances, noting that the D.C. Circuit “has held that security clearance decisions are within the purview of the Executive Branch” and that the law firm had not “pointed to persuasive authority that would support extraordinary injunctive relief at this stage.” But he said WilmerHale was likely to succeed in its challenge to other aspects of Trump’s order against the firm, including its limits on access and contracting.
In the Perkins Coie case, U.S. District Judge Beryl A. Howell likewise swiftly issued a TRO, acting less than a week after Trump’s March 6 order aimed at that firm and a day after Perkins Coie filed its motion. During a hearing on March 12, Howell concluded that Trump’s order likely violated “at least” three constitutional provisions.
Howell said the order probably violated the First Amendment because it “unlawfully retaliates against [Perkins Coie] for protected speech” and “constitutes unlawful viewpoint discrimination.” The order also implicated the Fifth Amendment’s guarantee of due process, she said, because it was likely “void for vagueness” and because Perkins Coie “was not even given the most basic protection of advance notice” or a chance to be heard.
Howell added that Trump’s order impinged on the Sixth Amendment right to counsel because it interfered with the freedom of clients to choose the representation they prefer. She worried that the president’s edict “threatens to significantly undermine the integrity of our entire legal system and the ability of all people and groups to access justice.”
To understand why Leon and Howell had little difficulty reaching these conclusions, and in particular why they immediately recognized a threat to the First Amendment, you need only look at the president’s explicitly stated rationales for the orders. He made it clear that he was singling out these firms because he perceived them as supporters of his political foes and opponents of his preferred policies.
WilmerHale’s sins included “engag[ing] in obvious partisan representations to achieve political ends,” Trump said, alluding to the firm’s work for the Democratic National Committee, state-level Democratic organizations, and the presidential campaigns of two Democrats: Joe Biden and Kamala Harris. Trump complained that WilmerHale was “bent on employing lawyers who weaponize the prosecutorial power to upend the democratic process and distort justice,” mentioning former Special Counsel Robert Mueller, who investigated Trump, and two of “his colleagues.”
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