Dem
47
GOP
53
"...In purpose and effect, this action draws from a playbook as old as Shakespeare, who penned the phrase: 'The first thing we do, let's kill all the lawyers.'" So begins Judge Beryl Howell's 102-page opinion striking down Donald Trump's executive order targeting the law firm of Perkins Coie, an order that purported to deny its lawyers access to all federal buildings, including courthouses, remove all security clearances and prohibit government contractors from doing business with the firm. Perkins Coie is one of four big law firms to fight back against these retaliatory XO's and this decision is the first out of the gate to permanently enjoin enforcement, but it is surely not the last. Howell notes that "eliminating lawyers as the guardians of the rule of law removes a major impediment to the path to more power." Indeed, she holds that these XO's are particularly insidious because instead of killing all the lawyers, "[Executive Order] 14230 takes the approach of 'Let's kill the lawyers I don't like,' sending the clear message: Lawyers must stick to the party line, or else."
Other law firms that Trump targeted, such as Paul Weiss, chose to cave to his bullying and intimidation tactics by agreeing to "stick to the party line" with some vague deal, the terms of which are apparently very fluid, to provide pro bono legal work to clients and causes that suit Trump at any given moment. ("The government, when asked, was unable to fill in basic details, for example, about whether the deal terms were written down or otherwise memorialized, the duration of the deals, or how recipients of the promised free legal work would be identified.") In her opinion, Howell had some choice words for those lawyers: "Some clients may harbor reservations about the implications of such deals for the vigorous and zealous representation to which they are entitled from ethically responsible counsel, since at least the publicized deal terms appear only to forestall, rather than eliminate, the threat of being targeted in an Executive Order... Only when lawyers make the choice to challenge rather than back down when confronted with government action raising non-trivial constitutional issues can a case be brought to court for judicial review of the legal merits, as was done in this case by plaintiff Perkins Coie LLP, plaintiff's counsel Williams & Connolly, and the lawyers, firms, organizations, and individuals who submitted amicus briefs in this case."
Howell granted summary judgment for the plaintiffs and found that the XO violates the First, Fifth and Sixth Amendments in that it is retaliatory, discriminatory based on viewpoint, denies equal protection of the law, due process and the right to counsel, and is unconstitutionally vague. The XO did not mince words about its purpose or the reasons for targeting this particular firm: (1) the firm's representation of Hillary Clinton during the 2016 presidential election; (2) lawsuits filed against the Trump administration that are described as "partisan lawsuits against the United States;" (3) lawsuits related to election law, including work with George Soros; and (4) DEI practices and supportive statements about diversity.
In finding that the purpose of the XO is retaliatory, Howell recounts Trump's constant attacks on the firm on social media and a lawsuit Trump filed against the firm for representing the Clinton campaign. The suit was dismissed as frivolous and Trump and his attorneys were ordered to pay $900,000 in legal fees for filing a meritless lawsuit. The XO is payback, but it's also unconstitutional: "This prohibition also extends to retaliation against individuals for the specific viewpoint expressed by their First Amendment protected activities, since the government may not 'use the power of the State to punish or suppress disfavored expression,' nor use threats of 'legal sanctions and other means of coercion... to achieve the suppression' of disfavored speech.'"
The XO also violates Perkins Coie's free speech rights generally, including its statements in support of a diverse workforce. The opinion holds that "public statements supporting diversity, standing alone, as they do here, provide not even a scintilla of evidence of impropriety, let alone illegality. A fair reading of the record, and taking the government at its word, requires finding that the justification for Executive Order 14230 stemming from plaintiff's purported 'racial discrimination' was motivated only by plaintiff's First Amendment protected speech in support of diversity." This is an important finding because we're seeing a slow creep in the media coverage of this topic that somehow support of DEI is, by itself, suspect, and that advocating for diversity in employment and hiring practices is somehow wrong. This opinion makes clear that efforts to increase diversity are consistent with constitutional principles.
Throughout the opinion, Howell stresses the importance of independent and ethical lawyers to a functioning democracy. She cites John Adams' defense of eight British soldiers charged with murder in the Boston Massacre. Despite losing half his practice as a result of that representation, Adams said, "I had no hesitation. Council ought to be the very last thing that an accused Person should want in a free Country," and "the Bar ought... to be independent and impartial at all Times And in every Circumstance." She also quoted Alexis de Tocqueville, who remarked that "the authority... intrusted to members of the legal profession... is the most powerful existing security against the excesses of democracy."
No doubt this decision will be appealed, but if these basic rights are not affirmed, this will be a major guardrail gone. If no one is willing to challenge Trump's actions, he won't have to worry about violating a court order since there won't be any to violate. (L)