Law Professors' Amicus Brief Supporting the Perkins Coie Law Firm in Challenge to Executive Order

The brief, just filed yesterday in district court is here; I was pleased to be one of the very many signers. Here's the Summary of Argument:

The President's Order is a self-declared act of retribution that targets a law firm for representing clients and causes the President disfavors. In inflicting this retribution, the Order contradicts centuries of precedent safeguarding free speech, the right of association, and the right to petition. These precedents establish that the First Amendment "prohibits government officials from 'relying on the threat of invoking legal sanctions and other means of coercion … to achieve the suppression' of disfavored speech." Nat'l Rifle Ass'n v. Vullo, 602 U.S. 175, 176 (2024) (quoting Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 67 (1963)). Targeting Perkins Coie for representing clients and espousing views the President dislikes is viewpoint discrimination, plain and simple.

The Order violates the Fifth and Sixth Amendments as well. The Fifth and Sixth Amendments were designed to check executive power and to ensure a meaningful way to assert rights before a judicial authority. Powell v. Alabama, 287 U.S. 45, 61, 64–65 (1932). Forcing lawyers to bend to the preferences of federal officials robs clients of their right to counsel and introduces the very type of government interference in the administration of justice the Founders acted to prevent.

Finally, the Order threatens the rule of law. If the Order stands, it will be open season on lawyers who have dared to take on clients or causes the President or other officials don't like. This is no hypothetical threat. In the run-up to the election, the President posted on Truth Social that "WHEN I WIN, those people that CHEATED will be prosecuted to the fullest extent of the Law …. Please beware that this legal exposure extends to Lawyers …." Trump Threatens Long Prison Sentences for Those Who 'Cheat' in the Election if He Wins, PBS News (Sept. 8, 2024). More recently, the President has pledged that Perkins Coie is merely among the first of "a lot of law firms that we're going to be going after." Erin Mulvaney & C. Ryan Barber, Fear of Trump Has Elite Law Firms in Retreat, Wall St. J. (Mar. 9, 2025) (quoting President Trump).

Indeed, since the Order at issue here, the President has issued three more Executive Orders targeting Paul, Weiss, Rifkind, Wharton & Garrison; Jenner & Block; and WilmerHale, all leading law firms. See Exec. Order No. 14237, 90 Fed. Reg. 13,039 (Mar. 14, 2025) (targeting Paul Weiss); Exec. Order No. 14246, 90 Fed. Reg. 13,997 (Mar. 25, 2025) (targeting Jenner & Block); Exec. Order, Addressing Risks from WilmerHale (Mar. 27, 2025). And, one of those firms caved to the President's pressure, donating what the President described as "$40 million in pro bono legal services over the course of President Trump's term to support the Administration's initiatives" in exchange for the Order's revocation. Ali Abbas Ahmadi, Trump Rescinds Order Targeting Law Firm After It Makes $40m Promise, BBC (Mar. 21, 2025) (quoting the President's Truth Social post); see also Exec. Order No. 14244, 90 Fed. Reg. 13,685 (Mar. 21, 2025) (revoking Executive Order targeting Paul Weiss).

The impact of the Order reverberates far beyond the particular firm that is targeted. Going forward, a lawyer or law firm that is asked to represent a client on a matter that is likely to trigger the President's ire will have to weigh whether they are willing to be placed on the President's target list—and lose the business such a placement entails. They must also ask whether taking on a client of this sort, and whether zealously advocating on that client's behalf, will hurt other existing clients to whom ethical duties are owed. The Executive branch has no constitutional authority to use executive orders as a cudgel to beat the American legal system into submission.

Beyond the impact on clients and lawyers, orders of this type threaten the integrity of the judicial process, including the core role of judicial review. That anchor of our constitutional system cannot function when one person—regardless of his position—is empowered to threaten and punish lawyers for zealously representing their clients in court. "The Government of the United States has been emphatically termed a government of laws, and not of men." Marbury v. Madison, 5 U.S. 137, 163 (1803). Let it not "cease to deserve this high appellation." Id.

Comments

[Joe_dallas]

Perkins coie was part of the conduit that the HRC campaign used for the fake russian hoax. PC is not being targeted for retribution for representing certain clients. They are are being targeted for providing false docs associated with the russian hoax.

Separate and distinct from the false narrative of "retribution for representing certain clients the president disfavors".

[Ridgeway]

This might have slightly more persuasiveness if Trump had not issued essentially identical orders against Wilmer Cutler, Paul Weiss and Jenner & Block, each of whom had precisely nothing to do with the Steele Dossier. It also ignores the shakedown campaign that Trump is engaged in with various other firms like Willkie and Milbank.

[Joe_dallas]

Ridgeway - your point is reasonable. I had overlooked the other law firms.

[Dan Schiavetta]

You lost me at "Russian hoax".

[rloquitur]

Because you're a fan-boy. If Weissman couldn't find squat on Trump, there was nothing to find.

[David Nieporent]

Now do Comer and Joe Biden.

[rloquitur]

So why were Joe's relatives getting a cut from the proceeds of the services rendered from other relatives?

And why was Joe getting involved in firing a prosecutor who just so happened to be going after a company upon whose board Hunter sat? And then you fucksticks think that Trump had no right to press Zelensky on the matter. Fuck off you lackey.

[Alpheus W Drinkwater]

Ha ha wait, are you talking about Viktor Shokin? I guess it's not much of a surprise that a rabid Trump supporter would also defend people like Viktor Shokin. You really think it was just Biden who wanted that guy fired? The guy was completely corrupt. In fact firing him probably increased the chances Burisma would be prosecuted, but that doesn't fit your little narrative.

[rloquitur]

It;s called a conflict of interest. And there is a difference of opinion as to whether the State Dept wanted Shokin gone.

[Joe_dallas]

We all understand why you are lost!

[Malika the Maiz]

What hoax?

https://en.m.wikipedia.org/wiki/Senate_Intelligence_Committee_report_on_Russian_interference_in_the_2016_United_States_presidential_election

[rloquitur]

A bunch of bots. Russia did a lot more by funding environmental groups, but no one seems to care about that one.

And the hoax was that Trump colluded . . . .

[Malika the Maiz]

He literally publicly asked them to release damaging, classified information on his opponent.

[rloquitur]

Oh good grief . . . . he was highlighting how careless she was.

[Malika the Maiz]

Like sending war plans on Signal careless?

[rloquitur]

Ah, another fan-boy--oh so willing to trade credibility for that heady feeling of being on the team. HRC set up an email account on a private, easily hackable, server. She did this to systematically evade Federal Records Act requirements. She also had evidence destroyed.

The DOJ went so easy on her. Even going so far as grant Cheryl Mills immunity on the basis that she was Hillary's lawyer, when she was a State Dept employee.

You're pathetic.

[David Nieporent]

How is giving limited immunity to a potential witness against her "going easy on her"? (It was not "on the basis that she was Hillary's lawyer.")

[rloquitur]

Bullshit. They swallowed hillary's argument that Cheryl Mills was Hillary's lawyer. Andrew McCarthy, no Trump fan at all, went through all of this.

You are such a simp.

[not guilty]

When a prosecutor grants a prospective witness immunity, it is typically because the witness has information relevant to criminal conduct by a higher value target of the investigation. Absent such a grant of immunity, the witness could invoke the constitutional privilege against self-incrimination.

[Joe_dallas]

Malika -
Hillary destroyed 30k emails

Trump's comment was that the russian spies could release those emails.
He made three points with that campaign comment;
A) the russians likely had access to all her emails since she was on an unsecured server
B) her use of the unsecured server was illegal at that time
C) that she destroyed those 30k emails

not surprising that you and others ignorantly distort Trumps campaign statement

[David Nieporent]

B) her use of the unsecured server was illegal at that time

False, of course. No law or regulation prohibited that.

[Joe_dallas]

DN - you continue your obvious deflections

It was definitely against state department policy
and likely illegal.

[David Nieporent]

It was not, in fact, against state department policy or illegal. You're playing lawyer, and you're as bad at that as you are at every other area of knowledge.

[Joe_dallas]

DN - lets ignore Comey's mens rea comment on why there was no hrc indictment

[David Nieporent]

You're again playing lawyer. Comey was not talking about the use of a private email server to conduct state department business, which was 100% legal. (If, perhaps, ill-advised.) It was about the handling of a small number of emails that people sent her containing classified information. (Which they should not have done, regardless of whether she used her server or her regular state department email.)

[rloquitur]

Oh good grief--you're right, using a private email to conduct government business is not strictly prohibited, but you're supposed to make sure that there's a government record created (which is easy--you just cc your government email address).

She was getting around the Federal Records Act. And so yeah, what she did was illegal.

[David Nieporent]

The Federal Records Act requires that a government employee contemporaneously forward (within 20 days) any emails from a private account to the official account. Hillary did not do that. But that provision of the law was not enacted until after Hillary had already left office, so it did not apply to her. And neither then, nor now, made the use of a private server itself illegal.

You will note that Comey's statement — which bookkeeper_joe helpfully linked to — didn't even mention this issue.

[rloquitur]

It was a means to evade the Federal Records Act.

[Joe_dallas]

https://www.fbi.gov/news/press-releases/statement-by-fbi-director-james-b-comey-on-the-investigation-of-secretary-hillary-clinton2019s-use-of-a-personal-e-mail-system

[hobie]

He voted with Russia at the UN on not condemning the war. What more proof do you need? Jesus...

[Vryedni]

And guess which country Trump inexplicably -- I'm sure it was unintentional! -- left off his tariffs list.

[Tom O'Brien]

Did Josh Blackman sign on?

[Malika the Maiz]

Probably on the other side.

[John F. Carr]

Three Conspirators, by my count, support the law firm. There are three very conservative Conspirators who might or might not support Trump on this issue. We could have dueling blog posts.

During the Vietnam war a science fiction magazine ran a pair of ads. One ad listed SF authors who supported the war. The other ad listed SF authors who opposed the war. Of course one side was good and the other evil. They got along anyway, enough to continue working in the same venue.

[John F. Carr]

The brief is in support of a motion for summary judgment. The judge ordered early filing of dispositive motions. But I don't see an answer by the government in the docket. Doesn't summary judgment require an answer and at least an opportunity for discovery? Procedurally, the government could still deny everything. It appears to me that the only relief that should be available now is a preliminary injunction.

[Jett's Pop]

Rule 56(b) states that a summary judgment motion may be made "at any time until 30 days after the close of all discovery." So there's no requirement that the government answer before a SJ motion is made. (Of course, there is a requirement that a defendant answer, but it is tied to when that defendant was served with the summons and complaint, and can be extended.) Of course, you are correct that the usual practice is to permit some discovery, and the government can certainly oppose SJ pursuant to 56(d) by asserting that, without discovery "it cannot present facts essential to justify its opposition." But, in this case, wouldn't that essentially be conceding that the President issued an executive order without the facts to justify it?

[Life of Brian]

The parties jointly asked for expedited dispositive motion briefing here, and the government filed a motion to dismiss rather than an answer.

Perkins Coie chucked in 4 expert reports with their SJ motion, so the experts likely will be deposed and the government may well put in some of their own. But that's just gloss -- everything likely will ultimately be based on publicly available information.

[John F. Carr]

Thanks for the pointer. I see the parties agreed no discovery is required. Summary judgment still requires enough undisputed facts to show standing and success on the merits. Plaintiff law firm claims to have lost business. Will the government accept that claim? More specifically, will Trump's DOJ accept that claim?

[Life of Brian]

Ah, I now see there's also a declaration from a fact witness that they use for support on the lost business claims and some other issues.

Not that I've torn apart the briefing to date, but at the end of the day I have to think the government's theory can't depend on whether Perkins Coie actually lost business since that's an eminently foreseeable (if not directly stated) outcome of the EO.

[not guilty]

Lost business would be relevant to the law firm's standing, but the firm is not seeking money damages in this action. They need only establish the fact that they have lost some business, not the amount that they would otherwise have received.

[rloquitur]

Perkins Coie is in the same boat as many other business or government in the cross-hairs of the government. It has some chalk on its sneakers (DEI), and that's levereage. Note that the lib playbook was always to use some picayune issue to bring the entity to heel. Trump's just doing it by EO, not litigation.

And no law firm has the right to clearances (obviously, for specific cases, there might be a need), nor do they have the right to unfettered access to government buildings.

[Malika the Maiz]

It’s not about having the right, it’s about the vendetta. It’s essentially an inverse crony capitalism. But hey, we get you have to back your Mad King.

[rloquitur]

Obama and AIG employees. You guys set the rules. Or how about Gibson guitar?

[Malika the Maiz]

Whataboutism. Pathetic.

[rloquitur]

Nope. Just establishing what the ground rules are. We are not going to unilaterally disarm.

[Malika the Maiz]

We get it, you don’t have principles that you can defend.

[rloquitur]

What goes around comes around.

[Vryedni]

Using different words doesn't mitigate your repeated admission that you have no principles.

[rloquitur]

So one side gets to play dirty, but the other has to play by Marquess of Queensbury rules. OK, gotcha.

[Dr. Ed 2]

We should defend our principles UNARMED?!?

[Dr. Ed 2]

rloqultor, I look at this the opposite way -- if Trump *loses* here, it will serve as (a) precedent against every future Democratic Admin, and (b) put them on notice that it's unconstitutional so that they can be liable.

[hobie]

There you go, Ed. Just look at it as a way to punish the libs later on. Whatever gets you on the right side of history, we'll take it

[John F. Carr]

I see two other Volokh Conspiracy bloggers on the list: Irina Manta and Alexander (Sasha) Volokh.

[Life of Brian]

I'm a bit surprised not to see Somin and Post.

[not guilty]

Perhaps they were not asked to sign on.

[Social Justice is neither]

So the Soviet bloc of leftist conspirators, makes sense.

[Vryedni]

What ignorant clowns you anti-antis are. You think Eugene and Sasha are leftists? Lol.

[Ed Grinberg]

Prof. Manta and the other Prof. Volokh rarely post anything. I don't have enough information to judge whether they're leftists or not. (And it is indeed ignorant to ascribe leftism to someone just because they come from the former USSR.)
As for Prof. Volokh, I fully agree with you -- he is no leftist.

[rloquitur]

https://nypost.com/2025/04/02/opinion/miranda-devine-new-fbi-chat-logs-reveal-extraordinary-gag-order-senior-leadership-used-to-shutdown-any-hunter-biden-laptop-discussion/

[Malika the Maiz]

They were instructed to say no comment regarding an investigation? Wow!

rloquitur just wanted it to be like the FBI’s leaking to damage HRC.

[rloquitur]

Look at the bigger picture . . . .

[Malika the Maiz]

lol, if a writer did dialogue for a conspiracy nut character an editor would strike your comment as lazily obvious!

What’s next, “we’re through the looking glass now, people?”

[rloquitur]

First of all, the FBI (James Comey) had already done Hillary a solid. It wasn't going to go whole hog to sully its own reputation for the benefit of Hillary (who was the one who ignored FRA requirements).

As for Hunter--we all know the investigation was bullshit. We all know that the government got involved by greenlighting the letter from the 51 hacks. (That rendered the election unfair.)

You're the one with no principles.

[O Tempora]

Based on what I've read about these cases I think Perkins Coie stands in a different posture than the other firms that have been sanctioned. Seems like it could be argued that Perkins Coie, through its then partner Marc Elias, crossed over the line between representing a client to actually participating in the client's political activities. The firm served as a conduit through which the Clinton campaign funneled money to Fusion GPS to prepare the now discredited Steele Dossier. The Clinton campaign subsequently paid a $113,000 fine for election law violations related to this payment. I would expect the Government to argue that the firm is not being punished for its speech or for legitimate legal representation but rather for its active participation in the client's political campaign.

[John F. Carr]

The First Amendment allows private parties to back the wrong candidate, and in general to lie in support of the wrong candidate. See also the Citizens United case. If attacking Hillary Clinton is protected speech supporting her is too.

[Dr. Ed 2]

The First Amendment also allows private parties to scream "Niggers Suck" at the top of their lungs.

However, it does *not* require that such private parties be hired.

Let's take this a little bit further:
Let's say that every day of the full moon, the partners assembled in front of SCOTUS for an hour at noon and chanted "Niggers Suck." Maybe carrying signs saying the same thing so there is no dispute as to what they were saying.

Let's further assume that is *all* they have done -- no assaults, no vandalism, no blocking egress, nothing other than just they being their lovable selves exercising their 1st Amendment rights.

Which, of course, they have a right to do, no matter how distasteful others may find it (and this is the most extreme example I can think of on short notice).

Wouldn't the President have the right to say "we'd prefer to have someone else representing us in court"?

Even if the Bull Connor Law Office is duly licensed, even if they haven't done anything actually illegal, couldn't one argue that they weren't "otherwise qualified" to represent the government?

[O Tempora]

My point is that Perkins Coie may be found not to have acted as a law firm in certain respects while involved with the Clinton campaign, and so opposing the Government's action on the grounds that it is an attack on the legal system or law firms may miss the point. I understand that it is probably tactically smart for the firm to claim the moral high ground of principled lawyers representing what has become an unpopular cause, but I'm not sure the facts will bear that out.

[Dr. Ed 2]

I agree that "Perkins Coie, through its then partner Marc Elias, crossed over the line between representing a client to actually participating in the client's political activities."

And the big question is what else the firm has done.
For example, Maine (Democratic) Speaker of the House Ryan Fecteau, ground center in the tranny sports issue, used to work for them.

[David Nieporent]

For example, Maine (Democratic) Speaker of the House Ryan Fecteau, ground center in the tranny sports issue, used to work for them.

Hey, look, Dr. Ed got to work a second slur into his posts in this thread. In support of yet another Dr. Ed fabrication, of course. Fecteau is not a lawyer, and did not in fact ever work at Perkins Coie.

[David Nieporent]

LOL, I figured this one out. His wikipedia page (https://en.wikipedia.org/wiki/Ryan_Fecteau) includes the following statement:

He has worked at several Ogunquit, Maine businesses since 2014 and at the Perkins Cove.[10] In late 2020, he was hired as an account executive at Catalist.[11][3]

Dr. Ed, with his usual attention to detail and pretense to knowledge, did not notice the difference between Perkins Cove and Perkins Coie.

[rloquitur]

"pretense to knowledge"---i'll give credit where due--that's a good turn of a phrase.

[Ed Grinberg]

Mr. Nieporent might be more knowledgeable than Dr. Ed. But I am not at all sure that he's more wise...

[ReaderY]

The choice of bogus nefariousness language to describe something everyone has a constitutional right to do - “crossed over the line between representing a client to actually participating in the client’s political activities” - is a gem of an example of the flip side of Poe’s law. People who are really serious and zealous about their causes tend to write things that look an awful lot like satire.

[O Tempora]

Well, the crime/fraud exception makes a similar distinction, does it not?

[Dr. Ed 2]

Isn't there such a line with the mafia and their Consiglieres?

[David Nieporent]

I would expect the Government to argue that the firm is [] being punished … for its active participation in the client's political campaign.

Um, how exactly do you think that's legitimate?

[ah....Clem]

Applause for signing this brief, Eugene.
Good to see that at least some people are not just rolling over and playing dead.

[ReaderY]

The tipping point is when Mr. Trump ups his rhetorical rhetoric of characterizing US judges who don’t rule his way as traitors and criminals, and moves from rhetoric to ordering his people not to follow them. He’s already started down that path. I suspect he may do it slowly, in a boil-the-frog sort of way, starting with various excuses for not complying (as is already being done in a number of cases) and building from there, so that non-compliance is already normalized before he stops bothering to pretend to apologize for it and openly declares it the right and patriotic thing to do.

[rloquitur]

But "reap the whirlwind" is ok. Gotcha.

Boasberg has done a lot of things in this case that merit excoriating criticism. I'd prefer the criticism to be tied to his actions specifically, but he's a dogshit judge. Lese-majeste seems to be a concept lefties use to try to shield leftist judges.