Free Speech Unmuted: Trump's War on Big Law

Jane Bambauer and I discuss President Trump's Executive Orders that target major law firms (such as WilmerHale and Jenner & Block). The Orders target the firms for retaliation based largely on their past support of various left-wing legal causes. Do those Orders violate the firms' (and their clients') Free Speech Clause or Petition Clause rights? Might they also violate the Fifth Amendment's Due Process Clause (in civil cases) and the Sixth Amendment right to counsel (in criminal cases)?

See also our past episodes:

• Can Non-Citizens Be Deported For Their Speech?
• Freedom of the Press, with Floyd Abrams
• Free Speech, Private Power, and Private Employees
• Court Upholds TikTok Divestiture Law
• Free Speech in European (and Other) Democracies, with Prof. Jacob Mchangama
• Protests, Public Pressure Campaigns, Tort Law, and the First Amendment
• Misinformation: Past, Present, and Future
• I Know It When I See It: Free Speech and Obscenity Laws
• Speech and Violence
• Emergency Podcast: The Supreme Court's Social Media Cases
• Internet Policy and Free Speech: A Conversation with Rep. Ro Khanna
• Free Speech, TikTok (and Bills of Attainder!), with Prof. Alan Rozenshtein
• The 1st Amendment on Campus with Berkeley Law Dean Erwin Chemerinsky
• Free Speech On Campus
• AI and Free Speech
• Free Speech, Government Persuasion, and Government Coercion
• Deplatformed: The Supreme Court Hears Social Media Oral Arguments
• Book Bans – or Are They?

Comments

[AmosArch]

If Law firms have First Amendment protection on their government contracts. Shouldn't all those businesses that were dropped or barred from business with the government for not following diversity mandates or whatever arbitrary requirements that had little to nothing to do with their actual job requirements over the decades also sue?

[AmosArch]

Or their clients

[Sarcastr0]

all those businesses that were dropped or barred from business with the government for not following diversity mandates

Looking beyond that that isn't speech, do you have any examples of this?

[AmosArch]

Off the top of my head California, Washington etc impose or imposed in the past a race/sex quota systems on private companies for example. Choosing not to engaging in racist/sexism mandated by government is speech/expression that should be protected at least as much as defending people trying to sexually mutilate children.

[Sarcastr0]

No examples, just demanding agreement with you.

[Fightin’Bob1848]

14A if it was discrimination on race. Just arbitrary for other reasons is more complicated. All wrong tho, just like this.

[CindyF]

I truly wish Reason contributors had been this concerned about the "war" on attorneys a few months ago when the Biden cabal was working on disbarring attorneys that had represented Trump or his associates.

There was even an organized group created just for that purpose. "The 65 Project". I'm sure some of the attorneys now outraged over Trump's actions are members of that group.

Law professors -- if you don't like their current standards, just wait because tomorrow they will have ones that are even worse.

[MollyGodiva]

Trump's lawyers were investigated and disciplined for violations of their code of conduct. They were given due process. Trump is just singling out law firms he does not like. MAGAs have a very hard time with the concept that just because people to do bad things get consequences, it is not ok to impose those same consequence on innocent people.

[AmosArch]

So I guess if trump had control of the courts and could railroad wilmerhale et al this would all be fine right?

Questioning aspects of the 2020 election undermines democracy and demands punishment unlike questioning the 2016 election which is totally patriotic and demands awarding the right to infinite taxpayer money in perpetuity.
-Somin probably

[MollyGodiva]

I don't remember Hillary filing any suits to challenge the 2016 election, much less a mountain of frivolous ones. I also don't remember anything about Hillary's lawyers trying not use mileage methods to have her become President.

The lawyers did not "question" the election. They abused the legal system to overthrow it.

[rloquitur]

The FBI/Comey just did her a major solid. She should have been indicted.

[not guilty]

James Comey is as responsible for Donald Trump's election in 2016 as any other person, (with the possible exception of Hillary Clinton herself,) what with his election eve shenanigans about Anthony Wiener's laptop computer.

[Dan Schiavetta]

He threw so much dirt on Hillary because (like most of us) he was assuming she would win and there would be a Republican Senate which would never stop investigating her. He didn't want the FBI to be a target. In a weird but understandable way, he was protecting the integrity of his agency.

Comey, of course, was a registered Republican. In fact the FBI has never been led by a Democrat. It's always been Republicans or unaffiliateds.

[rloquitur]

Comey didn't indict her--he just couldn't ignore the Weiner laptop issue and of course wasn't going to look like a complete toady.

[AmosArch]

Yeah the lawsuits really didn't work that well for them with Bush II so they just spread russian collusion hoaxes, frivolous impeachments, and other lawfare tactics to undermine and cast doubt on the totally bulletproof electoral system in 2016 we should have complete faith in for 2020.

I completely agree with you guys that Dems are way more clever and skilled in doing the exactly same things (in this case undermining faith in elections) they accuse Republicans of and getting away with it.

[Please, Daivd, Seek Help]

I mean, "if" Trump had control of "the courts" and his efforts to punish law firms went through those courts and the courts followed established processes and at the end of it, the courts ruled those firms should be subject to some sort of sanction rationally connected to the alleged conduct, yes, that would be a huge improvement over what's being done here?

Of course people can still object to the decisions courts make or the processes they follow just like any other case. But it's through the framework of something called the rule of law that those objections are filtered.

Is this a serious question?

[Senor Wolf]

Absolutely right. The natural counter-reaction will be that bar associations are biased leftists and these guys never got a fair chance. No engagement on the merits of sanctions based on peddling false election conspiracies, just gaslighting that maybe there was fraud with a healthy dose of whataboutism, ignoring that the sanctioned attorneys underwent adversarial proceedings with appellate rights.

[AmosArch]

Now that you mentioned it I seem to remember a bunch of lawyers for j6 and trump 2020 getting punished and nobody here shedding a tear for them. Funny how quickly even people like me who nominally supports much of Trump's agenda forgets this stuff. And then you have 'experts' conveniently forgetful too. Imagine how little context John w normal has. And of course all the search engines and llms are compromised so you cannot confirm that niggling little suspicion you have even if you can recall it in the first place. 1984lite and it doesn't even require all that much intentional malice.

[Sarcastr0]

all the search engines and llms are compromised!

[Magnus Pilatus, MBA, MD, JD, PhDx2]

Why do you always know so little about what's going on in the world?

https://www.anthropic.com/research/constitutional-ai-harmlessness-from-ai-feedback

[Ed Grinberg]

We don't call him Gaslight0 for nothing...

[Jack Jordan]

Do you really think that the lawyers who tried to help Trump Make Authoritarianism Great Again should not be punished for violating their oaths to support our Constitution? Even now (as Trump publicly proclaims how he plans to be president for a third term), do you really want to defend the faithless lawyers who tried to help Trump violate our Constitution last time?

Isn't it time to stop making this about partisan politics and acknowledge that we all should be on the same side against an unhinged megalomaniac and his supporting cast of sycophants? Trump is no Republican. Trump may be the most dangerous RINO in the world, and we all should start acting like it.

[Armchair]

NY State lawmakers and candidates for office promise to go after Tesla and Elon Musk,

https://gothamist.com/news/elon-musk-andrew-cuomo-tesla-buffalo-ny

Just curious...what's the difference here?

If NY City completely divests itself of Tesla stock due to Musk's views (as one a candidate for comptroller) is promising to do...what's the response?

If the NY Assembly and Governor cancel the large Tesla factory in Buffalo, partly due to Musk's views.... What's the response?

Or are things all quiet there suddenly...and "you can't really know that Musk's political views are the reason"

[Magnus Pilatus, MBA, MD, JD, PhDx2]

No one around here said shit when that NY AG campaigned on "Getting Trump" then the Assembly passed that bill targeting Trump with that 1950s "sexual assault".

No one around here says shit when NY politicians threaten to go after Tesla because of Musk's political opinions.

But they break out the tears for Big Law.

[rloquitur]

Let's all have a good cry for BigLaw.

[rloquitur]

Here's an update on that dipshit Judge Boasberg:

https://abcnews.go.com/US/judge-hear-arguments-trump-deportation-flights-defied-court/story?id=120446845

Guy assigns himself the case and then expects the government, absent anything but a hearing, to delay flights. What an arrogant fuck.

[Darwinnie]

No evidence for the “assigned himself the case” accusation, and the rest of your comment is ignorant. Yes, judges can issue orders after a hearing. That’s exactly how our legal system has worked for a couple hundred years.

[rloquitur]

He wasn't the emergency judge for the weekend--how else did the case wind up with him?

As for the rest of your comment, perhaps you should get acquainted with the English language. Boasberg is accusing the government of rushing the flights when it knew there was a hearing scheduled. The upshot is that Boasberg expected that the mere pendency of a hearing obligated the government to stay its hand. What utter bullshit. And then he said that the failure to do so was evidence of bad faith. Fuck him.

He should also know that his statement to the government to turn the planes around can be treated as a brutum fulmen--an empty noise. If I were some Trump official whom this clown was trying to hold in contempt, I'd say, "I am not showing up in your courtroom, you criminal coddling piece of dogshit."

[Alpheus W Drinkwater]

We can read Republican Party (i.e. Trump) talking points for ourselves, we don't need you guys for that. Maybe some day you might have something constructive to add to a thread.

[David Nieporent]

He wasn't the emergency judge for the weekend--how else did the case wind up with him?

As he mentioned at the hearing today, he happened to be available for this most-emergent-of-emergency situations in which the administration tried to sneak people out of the country.

Boasberg is accusing the government of rushing the flights when it knew there was a hearing scheduled.

And accurately so. These fascists were desperate to avoid the law.

If I were some Trump official whom this clown was trying to hold in contempt, I'd say, "I am not showing up in your courtroom, you criminal coddling piece of dogshit."

At which point it would be appropriate to send the marshals to arrest you.

[rloquitur]

"As he mentioned at the hearing today, he happened to be available for this most-emergent-of-emergency situations in which the administration tried to sneak people out of the country."

The plaintiffs were in touch with his chambers. You do realize, of course, that his defense just makes him look worse.

You still don't get it--the issue is not whether the Trump Administration rushed the flights. They did. And they did so to get the deed done before the judge could rule. You can comment on that all you want, But the judge is implying that the mere pendency of the hearing meant that there was an obligation on the government (else he find that they acted in bad faith) to hold up the flights in the absence of a court order (you know, a real one, that's in writing). I wish that the Administration wouldn't pussyfoot around this issue. I'd ram it right up his ass. Judge, it is extremely disrespectful of the people that elected the President, to suggest that acting on one of the President's campaign promises is somehow bad faith because you scheduled a hearing. You need to stay in your lane. Courts speak through orders, not weird ideas of deference. My client feels that it correctly anticipated that you were going to act lawlessly, and it sought to mitigate that lawlessness. Your oral statement was not enforceable, and quite frankly, your honor, we feel that you are embarrassing yourself with this quixotic attempt to get to the bottom of who was responsible for allegedly violating your statement. which they had the absolute right to do.

[rloquitur]

And it would be nice to finish it off with this:

"Judge, my client gave you a figurative middle finger. My client feels that there is nothing, within the bounds of the law, that you can do about it. And my client feels that you won't have any moral authority to incarcerate anyone since you feel that infecting court proceedings with doctored documents is not serious enough to warrant prison time.

[Jack Jordan]

rloquitur, what is it that makes you want to pretend that anybody in the 1780's (when our Constitution was written and ratified by people who feared anyone with the power to be a tyrant) trusted any president with the power to hustle people off to a foreign prison (without any hearing) merely because the mere president merely proclaimed that mere immigration was an enemy invasion? How does that make any sense to you?

Consider what actual Founders of our nation and actual Framers of our Constitution actually wrote about this very issue (to assure the people that the Constitution they were ratifying would protect us all from arbitrary imprisonment. Hamilton in The Federalist No. 84 wrote:

"the practice of arbitrary imprisonments" has "been, in all ages, the favorite and most formidable instruments of tyranny. The observations of the judicious Blackstone, in reference to [arbitrary imprisonments], are well worthy of recital: "To bereave a man of life, (says he) or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore A more dangerous engine of arbitrary government."

[rloquitur]

The sovereign gets to dictate the terms upon which aliens remain in the country. It really is that simple.

So, before the Confederate POWs were sent to Camp Anderson, did they get a hearing?

[Jack Jordan]

rloquitur, who do you think is "the sovereign"? Who do you think dictated the terms at issue here? What terms do you think were dictated? What does the treatment of POW's during an actual fighting war have to do with anything now?

Why didn't you answer the original question I posed? This isn't about mere deportation. It clearly is about imprisonment in a foreign prison and rushing people on planes to avoid any judicial review of executive action to put people in a foreign prison (from which Trump says he cannot even recover people he admits were illegally imprisoned).

[Jack Jordan]

rloquitur, you've made the point yourself that these people were rushed onto airplanes to be imprisoned in a foreign prison because of Trump's mere proclamation merely implying that they somehow were merely associated with a criminal gang. Trump merely implied they were mere "members" of TdA. That is why Trump and you thought they should be in prison. What legal authority do you think supports putting people in any prison (and especially a foreign prison from which even Trump contends he cannot retrieve them) for mere "membership" in TdA?

[Jack Jordan]

rloquitur, don't you think Trump's actions on and since March 15 regarding this particular issue are particularly peculiar in light of more recent events? Trump has made a mad dash to find ways (supposedly) to save money by laying off thousands of federal employees, yet he's squandering federal resources regarding this particular issue. Trump is wasting taxpayer money to have many federal employees try to support what Trump did here. He wasted taxpayer money to have flights take hundreds of people to a foreign country. He wasted some $6 million to pay a foreign government to imprison hundreds of people. Trump also has placed extraordinary emphasis recently on keeping American jobs and American money in America. Didn't we have prisons here that could house a few hundred more inmates? Why did they need to be flown to a foreign prison from which Trump claims even he lacks the power retrieve them?

[QuantumBoxCat]

If Congress passed a law (and the president signed it), that included the same language as Trump's executive orders (re law firms) would the law violate the prohibition on Bills of Attainder?

[Dan Schiavetta]

Interesting question, and I lean toward a "yes" answer.

[Swede425]

I'll make sure to include Big Law in my prayers tonight.

[Jack Jordan]

Thank you for highlighting this very serious problem. But Trump's war is not on Big Law. Trump is waging war on America and our Constitution. Trump and the sycophants supporting him are what 5 U.S.C. 3331 emphasizes that every public servant must "support and defend support and defend the Constitution of the United States against," i.e., our Constitution's "enemies, foreign and domestic."

"We the People of the United States" created our Constitution and constituted federal government to "establish Justice" and "provide for [our] common defence, promote [our] general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity." We all need to act accordingly.

We all need to set aside mere partisan politics and other petty differences and unite to save our nation from someone who threatens us all. Trump is no Republican. He may be the most dangerous RINO in the world. He is an unhinged megalomaniac served by sycophants. We would do well to emulate Thomas Jefferson, who declared in 1801 "every difference of opinion is not a difference of principle. We have called by different names brethren of the same principle. We are all Republicans, we are all Federalists." (https://constitutioncenter.org/the-constitution/historic-document-library/detail/thomas-jefferson-first-inaugural-address-1801).

We are all Americans, and our Constitution was written and ratified to protect us from tyrants like Trump. As James Madison (echoing Montesquieu), fairly famously highlighted in The Federalist No. 47, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many” is “the very definition of tyranny.”

Madison (quoting Montesquieu) emphasized, “There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates,” or, “if the power of judging be not separated from the legislative and executive powers.” "[T]here can be no liberty, because" the "same [executive] or [legislature] should enact tyrannical laws to execute them in a tyrannical manner.” Where “the power of judging” is “joined with the legislative, the life and liberty of the [people] would be exposed to arbitrary control, for the judge would then be the legislator.” Where the power to judge is “joined to the executive power, the judge might behave with all the violence of an oppressor.”

As a result, Madison emphasized that “the preservation of liberty requires that the three great departments of power should be separate and distinct.” The Framers devoted considerable effort to limiting and separating powers. That is exactly why every state and federal Constitution separates powers among three distinct co-equal branches. Again and again in the past two months, Trump has usurped the powers of legislators, judges, juries and even the sovereign people, themselves (in the First Amendment).