The Volokh Conspiracy
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Court Grants WilmerHale Law Firm Injunction Against President Trump's Executive Order Targeting Firm
A (relatively) short excerpt from today's long decision by Judge Richard Leon (D.D.C.) in Wilmer Cutler Pickering Hale & Dorr LLP v. Executive Office of the President; there's a lot going on here, but in general I agree with the First Amendment and Sixth Amendment arguments (I'm not sure either way about the others):
The cornerstone of the American system of justice is an independent judiciary and an independent bar willing to tackle unpopular cases, however daunting. The Founding Fathers knew this! Accordingly, they took pains to enshrine in the Constitution certain rights that would serve as the foundation for that independence. Little wonder that in the nearly 250 years since the Constitution was adopted no Executive Order has been issued challenging these fundamental rights. Now, however, several Executive Orders have been issued directly challenging these rights and that independence. One of these Orders is the subject of this case. For the reasons set forth below, I have concluded that this Order must be struck down in its entirety as unconstitutional. Indeed, to rule otherwise would be unfaithful to the judgment and vision of the Founding Fathers! …
"[T]he First Amendment prohibits government officials from retaliating against individuals for engaging in protected speech." WilmerHale alleges that "[t]he Order blatantly defies this bedrock principle of constitutional law." I agree!
To establish First Amendment retaliation, WilmerHale must plausibly allege and then prove: "(1) [WilmerHale] engaged in conduct protected under the First Amendment; (2) [defendants] took some retaliatory action sufficient to deter a person of ordinary firmness in [WilmerHale's] position from speaking again; and (3) a causal link between the exercise of a constitutional right and the adverse action taken against [WilmerHale]."
WilmerHale represents a range of clients in litigation. This advocacy is unquestionably protected conduct under the First Amendment. See Legal Servs. Corp. v. Velazquez (2001) (treating "the analysis of certain legal issues" and their "presentation to the courts" as "speech and expression"); Lehnert v. Ferris Faculty Ass'n (1991) ("We long have recognized the important political and expressive nature of litigation."); McDonald v. Smith (1985) ("[F]iling a complaint in court is a form of petitioning activity ….")….
The WilmerHale Order is, on its face, retaliation for the firm's protected speech. Indeed, § 1 outlines the motivations of the Order, including WilmerHale's pro bono practice, "obvious partisan representations to achieve political ends," and involvement in immigration and election litigation.
The Order goes on to impose a kitchen sink of severe sanctions on WilmerHale for this protected conduct! In addition to vilifying the firm in § 1, it suspends WilmerHale employees' security clearances, with a looming threat of full revocation of those clearances; coerces the firm's federal contractor clients to end their engagements with the firm or face cancellation of their contracts; targets the firm for investigation into supposed racial discrimination; threatens to bar its employees from entering federal buildings or engaging with federal employees; and prohibits agencies from hiring firm employees absent a waiver from the relevant agency heads.
Any one of those sanctions would cause clients to strongly reconsider their engagements with WilmerHale. Taken together, the provisions constitute a staggering punishment for the firm's protected speech! The Order is intended to, and does in fact, impede the firm's ability to effectively represent its clients! For example, WilmerHale attorneys may not be able to enter federal courthouses for trial, meet with federal regulators, or access classified materials necessary for working on national security matters. The Order also pressures the firm's federal contractor clients to either end their relationships with WilmerHale or face possible cancellation of their contracts…..
"At the heart of the First Amendment's Free Speech Clause is the recognition that viewpoint discrimination is uniquely harmful to a free and democratic society." As such, "[t]he government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rational for the restriction." Such viewpoint discrimination is "an egregious" violation of the First Amendment.
Here, WilmerHale claims that the Order targets the firm for its disfavored viewpoints and punishes it for expressing those viewpoints. The Court finds that WilmerHale has both alleged and shown this First Amendment violation!
As explained [above], WilmerHale's representation of clients in litigation is speech. The Order attacks the viewpoints WilmerHale expressed over the course of these representations, describing WilmerHale's work as "partisan" and "political," and maligning WilmerHale's advocacy on behalf of causes disfavored by President Trump. The Order is also motivated by WilmerHale's decision to "welcom[e]" Mueller to the firm and its statements that Mueller "embodies the highest value of our firm and profession."
President Trump can "share [his] views freely and criticize particular beliefs, and [he] can do so forcefully in the hopes of persuading others to follow [his] lead." He cannot, however, "use the power of the State to punish or suppress disfavored expression." The First Amendment bars the Government "from relying on the 'threat of invoking legal sanctions and other means of coercion … to achieve the suppression' of disfavored speech." …
The First Amendment [also] protects the right "to petition the Government for a redress of grievances." Filing and pursuing lawsuits are forms of protected petitioning. See Borough of Duryea v. Guarnieri (2011) ("This Court's precedents confirm that the Petition Clause protects the right of individuals to appeal to courts and other forums established by the government for resolution of legal disputes.")…. WilmerHale has both alleged and shown that the Order violates the Petition Clause by (1) punishing the firm for its past representation of clients in litigation and (2) undermining the firm's ability to pursue litigation in the future.
The Order explicitly targets WilmerHale at least in part for the litigation it has pursued, including election and immigration lawsuits…. The Order, however, goes further than punishing WilmerHale for past petitioning. It also creates hurdles to prevent the firm from pursuing future lawsuits. For example, § 5 directs agencies to limit the firm's employees' access to federal buildings and ability to engage with federal employees. The Order also suspends their security clearances, which restricts their access to the classified information they need to pursue cases involving national security. These limitations would severely hinder WilmerHale's ability to effectively bring cases….
Defendants invoke national security as the Government interest supporting the restrictions on WilmerHale's ability to petition outlined in § 5…. [But o]ther than a passing reference to WilmerHale's involvement in election and immigration litigation, the Order does not explain how WilmerHale's conduct has threatened national security or how restricting its access to federal buildings or federal employees would remedy those threats. Instead, and as I have already found, the Order is plainly motivated by the President's desire to retaliate against WilmerHale for its protected activity. This is not a legitimate Government interest, and the Order's unsupported assertion of national security will not save it! ….
The court added that the Order violated the right to expressive association:
The Supreme Court has [also] "long understood as implicit in the right to engage in activities protected by the First Amendment a corresponding right to associate with others." Compelled disclosure of affiliation with groups engaged in advocacy can violate this First Amendment right. WilmerHale alleges that the Order compels the firm's federal contractor clients to disclose their affiliation with WilmerHale, which engages in advocacy on their behalf and on behalf of other clients. I find that this disclosure violates the First Amendment freedom of association….
The Order "require[s] Government contractors to disclose any business they do with WilmerHale," regardless of whether that business is related to a federal contract. Defendants have not explained how a federal contractor's affiliation with WilmerHale on "any business"—even business unrelated to the contract—is substantially related to defendants' proffered interests in "ensur[ing] that there is no transfer of taxpayer dollars to entities that engage in racial discrimination" or managing contracts on which WilmerHale is a subcontractor. It is certainly not clear to this Court! …
The court also accepted WilmerHale's separation of powers argument:
"[T]he President's power, if any, to issue [an Executive Order] must stem either from an act of Congress or from the Constitution itself." President Trump purportedly issued the WilmerHale Order pursuant to "the authority vested in [him] as President by the Constitution and the laws of the United States of America." WilmerHale argues that neither the Constitution nor any statutory authority empowers the President to issue the Order, and in fact the Order violates the separation of powers by usurping judicial authority to identify and sanction abuses of the judicial process. At the very least, the latter is certainly true! …
Even if the Court found that each section could be grounded in Executive power, the directives set out in each section clearly exceed that power! The President, by issuing the Order, is wielding his authority to punish a law firm for engaging in litigation conduct the President personally disfavors. Thus, to the extent the President does have the power to limit access to federal buildings, suspend and revoke security clearances, dictate federal hiring, and manage federal contracts, the Order surpasses that authority and in fact usurps the Judiciary's authority to resolve cases and sanction parties that come before the courts! The Constitution vests "[t]he judicial Power of the United States" in the Supreme Court and such inferior courts established by Congress. "Article III is 'an inseparable element of the constitutional system of checks and balances' that 'both defines the power and protects the independence of the Judicial Branch.'" "Under 'the basic concept of separation of powers … the "judicial Power of the United States" … can no more be shared' with another branch than 'the Chief Executive, for example, can share with the Judiciary the veto power, or the Congress share with the Judiciary the power to override a Presidential veto.'"
This judicial power includes the inherent authority to sanction attorneys for their conduct in Article III courts. "Federal courts possess certain 'inherent powers,' … 'to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.'" … It necessarily follows that this judicial power is exclusive of the other two branches….
The court accepted WilmerHale's void-for-vagueness argument:
WilmerHale alleges that "[t]he Order is unconstitutionally vague because it does not give WilmerHale fair notice of what is prohibited and how the Firm can avoid sanctions in the future." I agree! …
The Order does not provide WilmerHale with notice of how it should act in the future to avoid these sanctions. President Trump allegedly issued the Order because WilmerHale has "abandoned the profession's highest ideals" and "abused its pro bono practice to engage in activities that undermine justice and the interests of the United States." He points to WilmerHale's "obvious partisan representations," "efforts to discriminate on the basis of race," "obstruction of efforts to prevent illegal aliens from committing horrific crimes," and "efforts … to enable noncitizens to vote." The Court agrees that the Order "leaves no doubt that WilmerHale is being punished because it has represented some of the President's political opponents and advanced positions with which he disagrees," but it "does not specify what aspect of WilmerHale's conduct triggered its massive sanctions." Moreover, the Order's invocation of concepts such as "bedrock American principles" and "the interests of the United States" leave WilmerHale and its employees guessing about how to modify their conduct to avoid the Order's sanctions….
The court accepted the firm's Sixth Amendment right to counsel argument (asserted on behalf of its criminal defendant clients):
The Sixth Amendment guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right … to have the Assistance of Counsel for his defence." This guarantee requires providing a criminal defendant with "a fair opportunity to secure counsel of his own choice." … Absent an exception, a defendant is entitled to "the counsel he believes to be bestThe "[d]eprivation of the right is 'complete' when the defendant is erroneously prevented from being represented by the lawyer he wants, regardless of the quality of the [alternative] representation he received." …
Here, WilmerHale has alleged and shown that the Order "infringes the Sixth Amendment right to counsel of [its] clients" by "eviscerat[ing] the Firm's ability to provide effective representation and advocacy for its clients." The firm represents "individuals accused of criminal … wrongs." This work requires entering federal buildings and engaging with federal employees. For example, "WilmerHale attorneys representing criminal defendants often meet with prosecutors in U.S. Attorneys' offices in-person to advocate for their clients."
By barring WilmerHale attorneys from federal buildings, prohibiting their engagement with federal employees, and suspending their security clearances, the Order effectively prevents the firm's attorneys from representing their clients in criminal matters. The Order also coerces WilmerHale's federal contractor clients to choose between their contracts and their engagements—including engagements on criminal matters—with WilmerHale….
Though the Order does not directly prohibit criminal defendants from hiring WilmerHale as their counsel, it certainly has that effect! The Supreme Court has indicated that indirect infringements on the right to counsel of choice can violate the Sixth Amendment…
The indirect infringement on the right to counsel here is severe, as explained above. I see no reason to ignore this violation simply because it is not a direct, explicit prohibition on representation of criminal clients. The intended and actual effect of the Order's sanctions is to drive clients away from WilmerHale! Taking into consideration the source of these directives—the President of the United States—along with the breadth of the sanctions, the Court finds that the Order materially "undermine[s] the value of" the firm's clients' right to counsel of choice.
The court, however, rejected the firm's Spending Clause argument, the firm's equal protection clause argument, and the firm's argument based on its clients' right to counsel in civil cases under the Due Process Clause.
Note that I signed a law professors' amicus brief in support of WilmerHale. Erin Elizabeth Murphy, Joseph John DeMott, Matthew Rowen, and Paul Clement (Clement & Murphy, PLLC) represent WilmerHale.
