First Amendment Injunction Against Administration in Perkins Coie Law Firm Case

The result generally strikes me as correct; but this is surely not the last word on the matter, since I expect a prompt appeal to the D.C. Circuit.

A very short excerpt from a 102-page opinion today by Judge Beryl Howell (D.D.C.) in Perkins Coie LLP v. U.S. Department of Justice:

Using the powers of the federal government to target lawyers for their representation of clients and avowed progressive employment policies in an overt attempt to suppress and punish certain viewpoints, however, is contrary to the Constitution, which requires that the government respond to dissenting or unpopular speech or ideas with "tolerance, not coercion." 303 Creative LLC v. Elenis (2023). The Supreme Court has long made clear that "no official, high or petty, can prescribe what shall be orthodox in politics … or other matters of opinion." W. Va. State Bd. of Educ. v. Barnette (1943). Simply put, government officials "cannot … use the power of the State to punish or suppress disfavored expression." NRA v. Vullo (2024).

That, however, is exactly what is happening here. For this reason, and those explained more fully below, Executive Order 14230 is unconstitutional, and the findings and instructions to Executive Branch agencies issued in its Sections 1 through 5 cannot be allowed to stand….

[P]laintiff is entitled to summary judgment on the following: (1) the claims of unconstitutional retaliation and viewpoint discrimination, in violation of the First  Amendment …; (2) the claim of unconstitutional compelled disclosure, in violation of the First Amendment …; (3) the claim of unconstitutional denial of equal protection of the law, in violation of the Fifth Amendment …; (4) the claims that EO 14230 violates the Fifth and Sixth Amendment right to counsel of plaintiff's clients …; (5) the claim of unconstitutional denial of due process of the law, in violation of the Fifth Amendment …; and (6) the claim that EO 14230 is unconstitutionally vague, in violation of the Fifth Amendment ….

{Plaintiff additionally claims … that Sections 1, 2(b), 3, and 5 of EO 14230 violate the Constitution's inherent separation of powers through the "Unconstitutional Exercise of Judicial Authority." Since resolution of plaintiff's claims alleging violations of the First, Fifth, and Sixth Amendments entitles plaintiff to summary judgment and the full relief sought in this case, … the separation of powers claim asserted in Count I need not be considered.} …

Note that I was one of the many signers of a law professors' amicus brief in the case, generally supporting Perkins Coie's position.

Comments

[y81]

Did Blackman file an amicus brief on the other side? (Maybe that's why the government lost.)

[Darth Buckeye]

I would not be surprised if, should AOC be elected President in 2028, that Trump will be prosecuted in DC on a variety of charges. He will probably be convicted too. Eventually all the convictions would be overturned in the Supreme Court unless the Dems control the House and the Senate too. In which case, the 15 (or maybe even 17 member) Supreme Court will uphold the conviction.

[John F. Carr]

Unlike the preliminary injunction, the final order also blocks revocation of security clearances. Donald Trump is not a defendant here. Perhaps he could personally revoke security clearances without violating the order. But the named defendants can't do it based on the executive order.

[David Nieporent]

What would it even mean for a president to revoke a security clearance "personally," though? He can make the decision personally, but he can't implement it personally. (I suppose that if he were walking by a Perkins Coie attorney and saw the guy reading a classified document, he could snatch the document out of the attorney's hand. But that's presumably not what we're discussing.)

[Social Justice is neither]

Good to see our judicial overlords coming out into the open and claiming control of "Our Democracy".

[Glaucomatose]

You do realize we live in a constitutional democracy, and not an elected monarchy, right?

[Martinned2]

NB the injunction applies to the security clearances part of the EO too (rightly, in my view).

[Brett Bellmore]

So, judges can order that people be given security clearances now? Can they deny people security clearances, too?

And "avowed progressive employment policies" seems like a rather anodyne way to describe violating civil rights law. I expect the court will be pissed, too, when the DOJ decides to just outright prosecute them for those violations, instead.

And "the Firm’s representation, both in the past and currently, of clients pursuing claims" seems a rather anodyne way of describing the firm acting as a cutout in a campaign finance violation scheme that got the party and candidate fined by the FEC.

I'm quite willing to believe the EO went a bit too far in disadvantaging Perkins Coie, even if it stopped far short of putting them out of business, let alone killing them.

But this order seems to go a bit too far, too. It looks to me like the government is no longer permitted to enforce civil rights law when it comes to Perkins Coie, or render judgements about granting security clearances. And might even be forced to retain PC where they'd rather switch to a different firm.

[Sarcastr0]

Don't take something away != give something.

looks to me like the government is no longer permitted to enforce civil rights law when it comes to Perkins Coie
You don't actually believe this was the reason, do you?

[Brett Bellmore]

Already been taken away. Give something back = give something.

I believe the judge wants to pretend that "progressive employment policies" aren't violations of civil rights laws, just because prior administrations had a policy of not enforcing those laws against those policies. That prosecutorial discretion was actually the reach of the law.

[y81]

There are specified procedures for adjudging EEO violations, and they don't include unilateral presidential determinations. Such violations are civil, in any case, not criminal. There are also specified remedies for properly adjudicated EEO violations (usually money damages, like most civil violations), and they don't include revoking security clearances or barring access to federal buildings. I don't see anything in the opinion that restricts the federal government from the implementation of those statutory procedures.

[Brett Bellmore]

But does the executive have to go through those procedures to just stop dealing with a law firm it thinks is violating them? Does the administration really have to treat Klu, Klux, and Klan, partners in law, as a regular law firm? Continue giving them security clearances?

I think the next step from the administration probably going to be going after PC for civil rights violations, and we'll see how this court reacts to that.

[Sarcastr0]

Does a President need to go through process to back up it's accusations?

Fucking monarchist.

[y81]

Yup, the government has to follow statutory procedures, even when the president doesn't want to. Seems like kind of a silly question, actually.

I didn't mention it, but there is also a whole raft of specified statutory procedures governing government contracting. (One reason it is expensive and inefficient.) So there too the president cannot just do whatever he wants.

Actually bringing an EEO claim against PC (which, if successful, might justify terminating federal contracts though not barring access to federal buildings) would require a lot of hard, patient work. It's pretty clear that the Bondi Justice Department doesn't have that capacity and has no interest in developing it.

[Glaucomatose]

Christ, Trump supporters are such drama queens.

[David Nieporent]

But this order seems to go a bit too far, too. It looks to me like the government is no longer permitted to enforce civil rights law when it comes to Perkins Coie,

An administration legitimately "enforces civil rights law" by filing suit against those it believes are violating the law. It does not legitimately enforce civil rights law by declaring someone to be guilty of violating it and announcing the punishment for so doing.

[JEP41]

"So, judges can order that people be given security clearances now?"

I don't understand anything like that to be part of the decision. I understand the decision to say that security clearances can't be revoked as part of a personal vendetta against a person/organization.

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

Wasn't it Perkins Coie the ones who had that secret FBI terminal and where they executed 250,000 unconstitutional and illegal searches?

Or is that unpunishable because of TrumpLaw and the illegality was on behalf of the Democrats?

[Brett Bellmore]

Yes, and yes.

[Michael Ejercito]

Wasn't it Perkins Coie the ones who had that secret FBI terminal and where they executed 250,000 unconstitutional and illegal searches?
Why would a private law firm have a secret FBI terminal in the first place?

[Brett Bellmore]

It wasn't so much "secret" as not trumpeted about. It was a "secure work space", supposedly for the convenience of the FBI, in Perkins Coie's offices.

[y81]

So it wasn't secret, it wasn't illegal, and it existed during the previous Trump administration. Fraud!

[David Nieporent]

And it also wasn't unique; the FBI had established SCIFs in numerous places. Quoting from the Washington Times:

The workstation at Perkins Coie is one of several secure sites the FBI has scattered throughout Washington at private law firms, cybersecurity businesses and third-party vendors.

[not guilty]

Judge Howell's memorandum opinion is quite the tour de force. The last substantive paragraph at page 102 puts it quite succinctly:

The U.S. Constitution affords critical protections against Executive action like that ordered in EO 14230. Government officials, including the President, may not “subject[] individuals to ‘retaliatory actions’ after the fact for having engaged in protected speech.” Hous. Cmty. Coll. Sys. [v. Wilson,] 595 U.S. [468,] 474 [(2022),] (quoting Nieves [v. Bartlett,] 587 U.S. [391,] 398 (2019).] They may neither “use the power of the State to punish or suppress disfavored expression,” [NRA v.] Vullo, 602 U.S. [175,] 188 [(2024),] nor engage in the use of “purely personal and arbitrary power,” Yick Wo [v. Hopkins,] 118 U.S. [356,] 370 [(1886).] In this case, these and other foundational protections were violated by EO 14230. On that basis, this Court has found that EO 14230 violates the Constitution and is thus null and void. For the reasons explained, plaintiff is entitled to summary judgment and declaratory and permanent injunctive relief on Counts II through IX of the Amended Complaint. The government’s motion to dismiss is denied.

https://storage.courtlistener.com/recap/gov.uscourts.dcd.278290/gov.uscourts.dcd.278290.185.0_1.pdf

I wonder where a president throwing a hissy fit to retaliate for a person or entity's exercise of First Amendment rights falls within the tripartite framework set forth by Chief Justice Roberts in Trump v. United States, 603 U.S. 593, 144 S.Ct. 2312 (2024). For the reasons set forth by Judge Howell, it cannot be the exercise of a core constitutional function.

The Chief Justice there wrote, "No matter the context, the President's authority to act necessarily 'stem[s] either from an act of Congress or from the Constitution itself.'" 603 U.S. at ___, 144 S.Ct. at 2327, quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952). Neither the Constitution nor any Act of Congress authorizes President Trump's conduct regarding Perkins Coie, LLP. The purported Executive Order therefore qualifies as an unofficial act which violates 18 U.S.C. § 242. To the extent that Trump conspired with at least one other person (Stephen Miller?), that also violates 18 U.S.C. § 241.

[y81]

The issue there was whether the President can be criminally prosecuted (after leaving office), not whether courts can enjoin his actions if they are found to be illegal. I doubt that Trump could be criminally prosecuted for this Executive Order, though I fancy the Democrats will try.

[not guilty]

After Trump leaves office, he can be prosecuted for actions which were unofficial. A purported executive order which is ultra vires (a sub-issue that Judge Howell did not reach) and violates the constitutional rights of another person or entity according to clearly established law (NRA v. Vullo, anyone?) would be unofficial unless it was issued in the purported exercise of core constitutional functions of the presidency, such as pardons or actions taken as commander-in-chief.

[Stephen Lathrop]

not guilty — Do you have any expectation that the Supreme Court would uphold a criminal charge against Trump for issuing EO 14230, or for anything he has done while asserting the mistaken justifications that EO flagrantly presumed?

And while we are at it, what does this decision do to the legal posture of other law firms which have purported to do Trump's bidding, arguably in some cases at the expense of their own erstwhile clients? If a law firm has caved to illegal pressure from government, and thus created conflicts of interest to preclude continued representation of some of it own clients, how does that get untangled?

[not guilty]

No, I don't have such expectation. But an indictment here after Trump leaves office would pose a legitimate question regarding immunity or the absence thereof.

Judge Howell's reasoning may be persuasive to other district judges considering similar presidential orders. It is not binding on such district courts.

In a criminal case, government interference with the accused's ability to retain defense counsel of choice can be structural error, not subject to harmless error review on appeal. See, United States v. Gonzalez-Lopez, 548 U.S. 140 (2006).