Trump: Order seeks to chill legal representation the administration doesn’t like
A judge has struck down an executive order made by President Trump against the law firm Jenner & Block, describing it as “an unconstitutional act of retaliation”.
District Judge John D Bates said the order made in March, which among other things terminated government contracts with the law firm and denied it access to government buildings and staff, “casts a chill over the whole of the legal profession”.
The judge, sitting at the federal court in Washington, said the case arose from “one of a series of executive orders targeting law firms that, in one way or another, did not bow to the current presidential administration’s political orthodoxy”.
He went on: “Like the others in the series, this order – which takes aim at the global law firm Jenner & Block – makes no bones about why it chose its target: it picked Jenner because of the causes Jenner champions, the clients Jenner represents, and a lawyer Jenner once employed.
“Going after law firms in this way is doubly violative of the constitution. Most obviously, retaliating against firms for the views embodied in their legal work – and thereby seeking to muzzle them going forward – violates the First Amendment’s central command that government may not ‘use the power of the State to punish or suppress disfavored expression’.
“More subtle but perhaps more pernicious is the message the order sends to the lawyers whose unalloyed advocacy protects against governmental viewpoint becoming government-imposed orthodoxy.
“This order, like the others, seeks to chill legal representation the administration doesn’t like, thereby insulating the executive branch from the judicial check fundamental to the separation of powers.”
Jenner & Block, a US-based firm with 900 staff and an office in London, was targeted with an executive order in March this year, one of flurry of such orders. Though nine firms have done deals with the administration to either retract or prevent an order, a few have fought – earlier this month, another judge struck down the order targeted at Perkins Coie.
The order targeted Jenner & Block, among other things, because of its pro bono work and links to former partner Andrew Weissmann, who investigated Russian interference in the 2016 US election as a member of the team led by special counsel Robert Mueller.
Judge Bates said the order “quickly had its intended effect”: Department of Justice lawyers instructed a Jenner client not to bring its lawyer to a meeting in April.
Meanwhile, “many other clients” have contacted the firm with concerns about its ability to represent them.
“And more severe harms are in the offing,” he noted. More than 40% of Jenner’s revenue comes from government contractors, subcontractors, or affiliates; the order puts that revenue at grave risk.”
The law firm secured a temporary restraining order against the executive order in March and the following month filed a motion for summary judgment and permanent injunctive relief.
Striking down the order as unlawful and granting a permanent injunction, Judge Bates said: “It casts a chill over the whole of the legal profession, leaving lawyers around the country weighing the necessity of vigorous representation against the peril of crossing the federal government.
“The order’s chilling effect is uniquely harmful for its focus on pro bono work. When law firms volunteer to represent vulnerable individuals and groups without pay, they embody the best of the profession.
“This order and the others like it seek not only to prevent that noble undertaking but to manipulate it. The orders strongarm firms into redirecting their uncompensated services to work the president prefers – or even perhaps to work for the president himself.”
In a statement, Jenner & Block said: “Our decision to fight the executive order in court is rooted in Jenner & Block’s history and values: we fiercely advocate for our clients under all circumstances.
“This ruling demonstrates the importance of lawyers standing firm on behalf of clients and for the law. That is what Jenner will continue to do for our clients – paying and pro bono – as we look to put this matter behind us.”
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