By Openly Retaliating Against Disfavored Law Firms, Trump Attacks Free Speech and the Right to Counsel
Two of his targets are seeking permanent injunctions against the president's blatantly unconstitutional executive orders.
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."
Explaining Trump's February 25 sanctions against Covington Burling, the White House cited a similar grievance: the firm's legal advice to former Special Counsel Jack Smith. That association, it said, showed that the firm's lawyers were unworthy of security clearances, because "Jack Smith and his staff spent more than $50 million in taxpayer dollars to target President Trump—an egregious misuse of judicial authority for political ends and part of the prior administration's unprecedented weaponization of prosecutorial power to upend the democratic process."
Trump averred that WilmerHale had engaged in "egregious conduct" by "support[ing] efforts to discriminate on the basis of race," referring to the firm's defense of Harvard University's affirmative action practices against a successful challenge by Students for Fair Admissions. He also accused WilmerHale of supporting "the obstruction of efforts to prevent illegal aliens from committing horrific crimes and trafficking deadly drugs within our borders," by which he meant that the firm had challenged some of his immigration policies during his first term. He added that WilmerHale "furthers the degradation of the quality of American elections, including by supporting efforts designed to enable noncitizens to vote." That was a reference to the firm's involvement in challenges to state voter identification and registration laws.
Such legal work, Trump claimed, is "detrimental to critical American interests." It "threaten[s] public safety and national security, limit[s] constitutional freedoms, degrade[s] the quality of American elections, or undermine[s] bedrock American principles." Firms like WilmerHale "regularly conduct this harmful activity through their powerful pro bono practices, earmarking hundreds of millions of their clients' dollars for destructive causes," he said, adding that lawyers who "engage in such egregious conduct should not have access to our Nation's secrets" or "be subsidized by Federal taxpayer funds or contracts."
Trump's bill of particulars against Perkins Coie was similar. He said it was guilty of "representing failed Presidential candidate Hillary Clinton" and "work[ing] with activist donors including George Soros to judicially overturn popular, necessary, and democratically enacted election laws, including those requiring voter identification." He criticized the firm's "diversity, equity, and inclusion" (DEI) policies, which he said included fellowships reserved for applicants from specific racial groups. He complained that Perkins Coie "has filed lawsuits against the Trump Administration, including one designed to reduce military readiness."
By his own account, then, Trump retaliated against WilmerHale and Perkins Coie for their legal work—specifically, for representing Democratic candidates, Democratic organizations, and clients who challenged policies that the president favors. It is not hard to see why Leon deemed "the retaliatory nature" of Trump's WilmerHale order "clear on its face," or why Howell thought it was likely that the Perkins Coie order "constitutes unlawful viewpoint discrimination."
The WilmerHale order, the firm argues, "is a textbook example of retaliation for constitutionally protected expression." It notes that "WilmerHale's advocacy on behalf of its clients is unquestionably protected by the First Amendment," that the threatened damage to the firm's business was apt to have a chilling effect on that advocacy, and that "it is unmistakable from the face of the Order that the President's 'retaliatory motive'" was "a 'but-for' cause" of the injuries it would inflict.
WilmerHale adds that Trump's order "openly discriminates against disfavored speakers and viewpoints," which is presumptively unconstitutional. "While most litigation requires discovery to unearth retaliatory motive," it says, "the President openly proclaims that he is targeting WilmerHale for representing his political opponents in election-related litigation, challenging his immigration-enforcement policies, associating with his perceived enemies (including a Special Counsel appointed by the President's own Justice Department), and defending a client's race-conscious college admission policies."
In addition to freedom of speech, WilmerHale argues, the order interferes with the First Amendment right to "petition the Government for a redress of grievances" and "abridges the freedom of association." The firm also argues that the order exceeds the president's legal authority, violates WilmerHale's rights to due process and equal protection, and violates its clients' "rights to engage counsel of their choice." Perkins Coie offers similar arguments in support of its motion for a permanent injunction.
"Simply put," WilmerHale says, "blacklisting and sanctioning law firms for representing the president's political opponents, devoting resources to causes the president dislikes or hiring attorneys who have investigated the president is anathema to our constitutional order." But if these cases are the slam dunks they seem to be, you might wonder, why did Paul, Weiss and the other firms cave rather than fight?
In exchange for presidential mercy, Trump bragged on March 21, Paul, Weiss agreed to adopt "a policy of political neutrality with respect to client selection and attorney hiring"; take on "a wide range of pro bono matters representing the full political spectrum"; commit to "merit-based hiring, promotion, and retention, instead of 'diversity, equity, and inclusion' policies"; and dedicate "the equivalent of $40 million in pro bono legal services" during the next few years "to support causes including assisting our Nation's veterans, fairness in the justice system, and combating anti-Semitism."
Although Trump cited the firm's "remarkable change of course," WilmerHale notes, he did not explain "why the 'national security' concerns" he had "referenced in issuing the March 14 Order" had somehow "dissipated just one week later." To avoid the president's wrath, other firms agreed to similar conditions. Skadden, Arps, for example, promised to abandon DEI policies; represent clients without regard to "the personal political views of individual lawyers"; ensure that its pro bono activities "represent the full political spectrum"; and devote "at least $100 Million" in pro bono legal services to "causes that the President and Skadden both support."
These "extraordinary capitulations," WilmerHale notes, demonstrate the potency of the president's threats. "These large and successful firms," it says, "viewed the threat of similar sanctions as sufficiently dire to agree to a series of demands, including their commitments to devote a collective $340 million in pro bono resources 'to causes that the President…support[s],' to avoid these same consequences. These actions well illustrate that, given the realities of the legal market, entities of 'ordinary firmness' not only could be, but in fact have been deterred" by Trump's "blacklisting and sanctions."
That brief was filed on April 8. As of April 16, The New York Times reported, the pro bono services extorted by Trump from nine law firms totaled "nearly $1 billion," and Trump has "hinted" that he views those promised services as "a legal war chest to be used as he wishes." Citing "two people briefed on the matter," the Times said the options include "sending the lawyers to help Elon Musk's Department of Government Efficiency," "deploying them to aid the Justice Department," or even assigning them to represent "Mr. Trump or his allies if they [become] ensnared in investigations."
Although major law firms initially were reluctant to criticize Trump's orders, The New York Times notes, "some in the legal world have rallied behind" WilmerHale and Perkins Coie after seeing that the courts "appeared at least initially receptive" to their claims. More than 500 law firms joined a brief in the Perkins Coie case that was filed on April 2. Perkins Coie's case also attracted support from hundreds of law professors and an ideologically diverse bunch of civil liberties groups, including the American Civil Liberties Union (ACLU), the Cato Institute, the Electronic Frontier Foundation, the Institute for Justice, the Foundation for Individual Rights and Expression, and the Rutherford Institute.
"President Trump has singled out one of the nation's largest law firms for serious, potentially business-ending sanctions by executive fiat, citing the firm's past representation of his political opponents and its 'partisan lawsuits against the United States,'" the latter brief says. "The President's action violates fundamental First Amendment freedoms and other constitutional protections. More generally, it is
an attack on the independence of the legal profession."
The ACLU et al. offer a warning for Republicans who might shrug at that attack because they do not view the targets as sympathetic. "The fallout from these assaults on the bar may not be limited to lawyers who represent clients or causes that are perceived as hostile to President Trump," they note. "The precedent created here could be used by future presidents, of either party, to chill advocacy hostile to their policies or executive branch officials. If allowed to stand, these pressure tactics will have broad and lasting impacts on Americans' ability to retain legal counsel in important matters, to arrange their business and personal affairs as they like, and to speak their minds."
