Federal judge on Trump DOJ's defense of orders targeting BigLaw: "Give me a break"
A George W. Bush-appointed judge could go farther than anyone in striking down Trump's executive orders targeting major firms
A federal judge appointed by George W. Bush could go farther than any court has to date in blocking Donald Trump’s executive orders targeting major law firms.
So far, four separate federal judges have issued temporary restraining orders blocking several aspects of Trump’s orders against law firms Perkins Coie, Jenner & Block, WilmerHale and Susman Godfrey. Those judges found that the Trump administration’s attacks on the firms likely violated the First, Fifth and Sixth Amendments of the Constitution, but none has struck down Trump’s orders in their entirety.
The still-effective portions of the orders relate to the firms’ embrace of diverse hiring practices and the lawyers’ ability to obtain security clearances, where a U.S. president has broad powers.
But during a two-hearing today, U.S. District Judge John Bates appeared willing to rein in those sections, too.
Possible Action Item: Naming and shaming
Georgetown Law students recently demonstrated the power of a spreadsheet, creating a more than 800-row database of firms that caved or stood up to the Trump administration’s bullying. The list became a recruitment headache for the capitulating law firms trying to woo students. See our coverage.
Against a “Constitution-free zone”
Jenner’s attorney Michael Attanasio, who is a partner at Cooley, said that the executive’s broad power over security clearances doesn’t make that area a “Constitution-free zone.”
“The security clearance provision flows from the unconstitutional attack on the law firm,” Attanasio said in court.
Judge Bates appeared to agree, pressing the government on whether Trump had the power to ban Muslims or Democrats from getting security clearances.
When the Justice Department lawyer Richard Lawson conceded that Trump did not, the judge said he did not see what would make a “blanket” security-clearance ban on a major firm’s employees more legal.
Paul Weiss, one of more than a half a dozen firms to settle with Trump, made the executive order targeting them disappear in the process.
Attanasio urged the judge not to signal that the only way to escape retaliation is “on bended knee.”
“All we have to do is read this thing: It reeks of unconstitutionality,” Attanasio said. “It should be set aside, entirely.”
“A direct and lethal threat”
Jenner and the judge panned the Trump Justice Department’s arguments as intellectual contortions.
Judge Bates was audibly frustrated after the Justice Department tried to justify restricting Jenner employees’ access to government buildings in the name of opposing discrimination.
“Give me a break!” the judge exclaimed.
Jenner’s attorney added to that sentiment: "It’s like a game of Twister, verbal gymnastics, to justify this architecture of retaliation based on speech.”
It’s not just the firms’ rights that are under attack.
The First Amendment ramifications of the case go to the right to associate; the Fifth Amendment implicates the right to due process; and the Sixth Amendment protects the rights of the clients of those firms to obtain the counsel of their choice.
More than 2,000 groups and individuals supported the targeted law firms in friend-of-the-court briefs, and conservative legal icons like Paul Clement have opposed Trump’s orders.
Arguing for WilmerHale last week, Clement put it starkly: “These orders are a direct and lethal threat to the independent bar.”
During that April 23 hearing, Senior U.S. District Judge Richard Leon, another George W. Bush appointee, couldn’t have been more explicit: “It's retaliatory. There's no question in my mind.”