White House: Nine firms have done deals so far to avoid orders
A US judge has ruled that the executive order by President Donald Trump aimed at the law firm that acted for Hillary Clinton amounted to “unconstitutional retaliation”.
US District Judge Beryl Howell issued a permanent block on the president’s instructions to federal agencies to take action against Seattle-headquartered Perkins Coie
It was clear, she said, that the firm was targeted because it “expressed support for employment policies the president does not like, represented clients the president does not like, represented clients seeking litigation results the president does not like, and represented clients challenging some of the president’s actions, which he also does not like.
“That is unconstitutional retaliation and viewpoint discrimination, plain and simple.”
The order had told officials to terminate, where possible, any government contracts with the firm or any of its clients, and also sought to limit the access of Perkins Coie staff to federal government buildings and meetings with officials.
Having granted a temporary block in March, Judge Howell has now made it permanent.
In a strongly worded 102-page ruling, she said “eliminating lawyers as the guardians of the rule of law removes a major impediment to the path to more power” and described the case as “an unprecedented attack” on the “foundational principles” of lawyers’ independence.
The order “draws from a playbook as old as Shakespeare, who penned the phrase: ‘The first thing we do, let’s kill all the lawyers’”, she observed.
But in a “cringe-worthy twist”, it “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”.
Judge Howell observed that “this message has been heard and heeded by some targeted law firms, as reflected in their choice, after reportedly direct dealings with the current White House, to agree to demand terms, perhaps viewing this choice as the best alternative for their clients and employees”.
Nine leading law firms – including Anglo-US giant A&O Shearman – have so far cut deals with the White House to avoid executive orders.
The judge went on: “Yet, 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.”
She found the executive order unconstitutional on several grounds, including denial of due process and denying Perkins Coie’s clients their right to counsel.
“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’.”
In a statement, Perkins Coie said: “Today, the court permanently blocked the unlawful executive order targeting our firm. This ruling affirms core constitutional freedoms all Americans hold dear, including free speech, due process, and the right to select counsel without the fear of retribution.
“We are pleased with this decision and are immensely grateful to those who spoke up in support of our positions.
“As we move forward, we remain guided by the same commitments that first compelled us to bring this challenge: to protect our firm, safeguard the interests of our clients, and uphold the rule of law.”
The White House has not yet publicly responded to Judge Howell’s decision.
Two other firms, WilmerHale and Jenner & Block, has also challenged executive orders and both have obtained temporary restraining orders.
More than 500 law firms signed an amicus brief supporting Perkins Coie, including the US arm of magic circle firm Freshfields.
Meanwhile, President Trump has given the first indication of how he might seek to use the nearly $1bn in pro bono work offered by the nine firms that have done deals.
An executive order entitled ‘Strengthening and unleashing America’s law enforcement to pursue criminals and protect innocent citizens’ requires the Attorney General “to create a mechanism to provide legal resources and indemnification to law enforcement officers who unjustly incur expenses and liabilities for actions taken during the performance of their official duties to enforce the law”.
This mechanism, it said, “shall include the use of private-sector pro bono assistance for such law enforcement officers”.
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