The Volokh Conspiracy
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Paul Clement's Argument Against the Executive Order Targeting the WilmerHale Law Firm
It's a lawyer's argument, not an attempt at objective analysis. But I think that on balance it is generally quite correct, and powerfully framed.
I'll have a further post next week about the First Amendment and right-to-counsel problems with some of President Trump's Executive Orders. But in the meantime I thought I'd quote the introduction to the Complaint in Wilmer Cutler Pickering Hale & Dorr LLP v. Executive Office of the President, filed by former Solicitor General Paul Clement and his colleagues Erin Murphy and Joseph J. Demott at Clement & Murphy, PLLC:
"[T]he right to counsel is the foundation for our adversary system," Martinez v. Ryan (2012), and the "courage" of attorneys who take on unpopular clients has long "made lawyerdom proud," Sacher v. United States (1952). John Adams famously embodied these principles by defending eight British soldiers in the "Boston Massacre" trial, an effort he described as "one of the best pieces of service I ever rendered my country." And British monarchs' practice of punishing attorneys "whose greatest crime was to dare to defend unpopular causes"—which threatened to reduce lawyers to "parrots of the views of whatever group wields governmental power at the moment"—helped inspire the Bill of Rights. Cohen v. Hurley (1961) (Black, J., dissenting). It is thus a core principle of our legal system that "one should not be penalized for merely defending or prosecuting a lawsuit." F. D. Rich Co. v. United States ex rel. Indus. Lumber Co. (1974).
In an unprecedented assault on that bedrock principle, the President has issued multiple executive orders in recent weeks targeting law firms and their employees as an undisguised form of retaliation for representing clients and causes he disfavors or employing lawyers he dislikes. These "personal vendetta[s]" are so facially improper that the first court to address the merits of one of these orders concluded that it likely violates multiple foundational safeguards enshrined in the Bill of Rights.
The latest such directive …, dated March 27, 2025, targets Wilmer Cutler Pickering Hale and Dorr LLP …. Titled "Addressing Risks From WilmerHale LLP," the Order avowedly punishes WilmerHale for various matters the Firm has handled, including some it has taken on pro bono, and for its employment of certain attorneys who participated in the Department of Justice's investigation of the 2016 presidential election. In particular, WilmerHale has been a professional home for public servants like Robert Mueller and represented (among many others) President Trump's political opponents, including in litigation on behalf of the Democratic National Committee and the Biden and Harris campaigns in the two most recent presidential elections. This past month, WilmerHale also filed a lawsuit challenging the President's sudden dismissal of eight inspectors general at major federal agencies.
The Order's declared purpose is to retaliate against WilmerHale—and certain of its clients—for WilmerHale attorneys' constitutionally protected advocacy in matters that President Trump perceives to be adverse to his personal and/or political interests. Among other things, the Order accuses WilmerHale of "abus[ing] its pro bono practice," specifically referencing the Firm's election- and immigration-related litigation and its defense of race-based college admission policies.
The Order also singles out retired WilmerHale partners Robert Mueller and James Quarles and current partner Aaron Zebley because of their involvement in the Department of Justice's investigation into allegations of Russian interference in the 2016 presidential election, in which Mr. Mueller served as Special Counsel. While most litigation requires discovery to unearth retaliatory motive, the Order makes no secret of its intent to punish WilmerHale for its past and current representations of clients before the Nation's courts and for its perceived connection to the views that Mr. Mueller expressed as Special Counsel.
Section One of the Order vigorously criticizes WilmerHale for advocating in favor of clients and causes that the President disfavors. The Order accuses WilmerHale of "earmarking hundreds of millions of [its] clients' dollars for destructive causes" and "engag[ing] in activities that undermine justice and the interests of the United States." It also accuses the Firm of "abus[ing] its pro bono practice" to "engage[] in obvious partisan representations to achieve political ends, support[] efforts to discriminate on the basis of race, back[] the obstruction of [immigration-enforcement] efforts," and "further[] the degradation of the quality of American elections, including by supporting efforts designed to enable noncitizens to vote." The Order makes clear that these allegations are based on actions WilmerHale has taken in certain client representations before this Nation's courts, many of which have been successful and drawn plaudits—and certainly not sanctions—from the courts that directly oversaw the litigation.
Section One further criticizes WilmerHale for "employing" certain "lawyers" whom President Trump dislikes. Specifically, the Order criticizes WilmerHale for "welcoming" Robert Mueller, James Quarles, and Aaron Zebley back to the Firm after the conclusion of the Special Counsel investigation into the 2016 election.
The Order accuses these attorneys—all of whom were involved in a Justice Department investigation conducted under an appointment by the Acting Attorney General of the United States—of having "weaponize[d] the prosecutorial power to upend the democratic process and distort justice" during "[Mr.] Mueller's investigation" and states that this alleged "weaponization of the justice system must not be rewarded, let alone condoned." The Order specifically criticizes WilmerHale for claiming that Mr. Mueller "embodies the highest value of our firm and profession," when, in the President's view, he "l[ed] one of the most partisan investigations in American history."
Section Two directs "[t]he Attorney General, the Director of National Intelligence, and all other relevant heads of executive departments and agencies" to immediately "suspend any active security clearances held by individuals at WilmerHale" and to review whether to revoke them permanently. This direction bypasses the existing procedures for granting and revoking security clearances and addresses individuals at the Firm without regard to when they joined the Firm and whether they had any personal connection to any of the representations criticized in the Order.
Section Three takes aim at WilmerHale's finances by pressuring its current clients to leave the Firm and prospective clients to stay away. The Order accomplishes this by directing federal agencies to (1) "require Government contractors to disclose any business they do with WilmerHale"; (2) seek to "terminate any contract … for which WilmerHale has been hired to perform any service"; and (3) reassess all "contracts with WilmerHale or with entities that do business with WilmerHale," suggesting that such relationships may not "align[] with American interests."
Section Four references a portion of the Perkins Order that instructs federal officials to "investigate" diversity, equity, and inclusion policies at "large, influential, or industry leading law firms."
Lastly, Section 5 of the Order directs federal agencies to "limit[]" WilmerHale employees' "access" to "Federal Government buildings" and stop "engaging with WilmerHale employees" whenever it would "be inconsistent with the interests of the United States." It also instructs agency officials to "refrain from hiring employees of WilmerHale, absent a waiver from the head of the agency, made in consultation with the Director of the Office of Personnel Management."
The President's sweeping attack on WilmerHale (and other firms) is unprecedented and unconstitutional. The First Amendment protects the rights of WilmerHale, its employees, and its clients to speak freely, petition the courts and other government institutions, and associate with the counsel of their choice without facing retaliation and discrimination by federal officials. Indeed, the Supreme Court recently reaffirmed the bedrock law that the government may neither "use the power of the State to punish or suppress disfavored expression" nor "attempt to coerce private parties in order to" accomplish those forbidden ends. NRA v. Vullo (2024).
The Order also violates the separation of powers twice over. The President's role is to enforce the law—not to create new law or adjudicate litigation conduct before the courts— and no statute or constitutional provision empowers him to unilaterally sanction WilmerHale in this manner. That is unsurprising; any legislative effort to restrict lawyers' access to government buildings, services, and materials just for representing disfavored clients or causes would be patently unconstitutional. And any executive-branch effort to deter private attorneys from representing particular clients or advancing particular arguments "threatens severe impairment of the judicial function," as courts depend on attorneys to "present all … reasonable and well-grounded arguments" on their clients' behalf. Legal Servs. Corp. v. Velazquez (2001).
On top of that, the Order flagrantly violates due process. It imposes severe consequences without notice or any opportunity to be heard; it uses vague, expansive language that does not adequately inform WilmerHale (or its clients) of what conduct triggered these extraordinary sanctions; and it unfairly singles out WilmerHale based on its perceived connections to disfavored individuals and causes.
Finally, the Order violates the right to counsel protected by the Fifth and Sixth Amendments and imposes unconstitutional conditions on federal contracts and expenditures.
For any and all these reasons, the Order cannot stand….
For more legal details, you can also see the preliminary injunction motion. Note also Ed Whelan (National Review) on Clement's filing. [UPDATE: I should have noted at the outset that I have no informed opinion on the security clearance portion of the argument, since that's a specialized area of law about which I know little.]
