The ruling against Trump's law firm order shows how to respond in this moment

Judge Howell's decision striking down the order targeting Perkins Coie can serve as a framework for addressing Trump. And, for paid subscribers: Closing my tabs.

On Friday evening, U.S. District Judge Beryl Howell took a stab at summarizing what it means to exist in this moment — and how courts need to respond to it — with lessons for the rest of us as well.

“[S]ettling personal vendettas by targeting a disliked business or individual for punitive government action is not a legitimate use of the powers of the U.S. government or an American President,“ Howell wrote in her decision striking down the first of President Donald Trump’s several executive orders targeting a law firm with broad reprisals due to his personal grievances with the firm.

Although Howell’s statement might have been an obvious one when she took the bench nearly 15 years ago, Trump proved why such a statement was necessary less than 48 hours after she issued it. Asked on Meet the Press whether he has to uphold the Constitution, Trump replied, “I don’t know,” later, at least, adding that his “brilliant lawyers … are going to obviously follow what the Supreme Court said.”

In a moment when the president is explicitly shoving his oath of office to the wayside without a second thought, the other branches, the states, and the people will have to step up.

In her 102-page decision finding that Trump’s attack on the Perkins Coie law firm was unconstitutional on several grounds, rendering the executive order “null and void,” Howell, an Obama appointee, laid out the facts — many of them undisputed — about how Trump and the Trump administration are acting without regard to basic constitutional protections. She then expanded a temporary restraining order that had blocked significant parts of the order to a permanent injunction blocking the entirety of the executive order. Like the subsequent law firm executive orders, the Perkins Coie one included a “purpose” section that recounted Trump’s grievances, followed by sections addressing security clearances, government contracting (including the firms’ clients contracts), diversity efforts, and personnel (which includes building access restrictions and hiring restrictions).

Quoting from key U.S. Supreme Court decisions from recent years — and one seminal case from nearly 150 years ago — addressing fundamental limits on government power, Howell concluded her opinion by stating:

Government officials, including the President, may not “subject[] individuals to ‘retaliatory actions’ after the fact for having engaged in protected speech.” Hous. Cmty. Coll. Sys., 595 U.S. at 474 (quoting Nieves, 587 U.S. at 398). They may neither “use the power of the State to punish or suppress disfavored expression,” Vullo, 602 U.S. at 188, nor engage in the use of “purely personal and arbitrary power,” Yick Wo, 118 U.S. at 370. In this case, these and other foundational protections were violated by EO 14230. On that basis, this Court has found that EO 14230 violates the Constitution and is thus null and void.

The way that Howell got there is straightforward — and essential to understand.

What are Howell’s lessons?

1. If you can, speak up.

2. Be clear and present the facts.

3. Focus on Trump’s actions — and challenge their defenses.

4. State the fundamental legal principles that the administration is ignoring.

5. Enforce the law.

Howell is not the first judge to do so over the past 100+ days, and she won’t be the last. Perkins Coie was not the first group of people to sue the Trump administration, and they certainly won’t be the last. But, the attack on law firms provides as solid a basis as any for looking at the importance of pushing back given how far the attack shows Trump wants to go to dismantle democracy.

If you can, speak up.

With reference to William Shakespeare’s “The first thing we do, let’s kill all the lawyers,” Howell explained, “Eliminating lawyers as the guardians of the rule of law removes a major impediment to the path to more power.” Noting the “crucial independence” of lawyers to our system of governance, Howell lays out the stakes: “The instant case presents an unprecedented attack on these foundational principles.“

Minimizing the danger does no one good.

Howell’s decision is all the more illustrative coming in the face of the attacks that Howell personally faced — from Trump, the Justice Department, and others — for her initial ruling in the case. Not only did Howell face out-of-court criticism, the Justice Department went so far as to seek Howell’s recusal from the case, which she denied.

As Howell noted, “EO 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.” She then dropped a footnote that served as as strong of a warning to the legal profession as I have seen in recent months, so I want to repost a substantial part of it here:

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. 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.

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. As one amicus aptly put it, “[o]ur judicial system is under serious threat when determining whether to file an Amicus Curiae brief could be a career-ending decision. But, when lawyers are apprehensive about retribution simply for filing a brief adverse to the government, there is no other choice but to do so.” Amicus Curiae Br. of Pickering Legal LLC in Supp. of Pl.’s Request for a Permanent Injunction at 6, ECF No. 93. If the founding history of this country is any guide, those who stood up in court to vindicate constitutional rights and, by so doing, served to promote the rule of law, will be the models lauded when this period of American history is written.

Importantly, that amicus brief quoted by Howell came from a solo practitioner — showing more commitment to the rule of law than Paul Weiss or other capitulating firms have done.

Be clear and present the facts.

Although the litigation addresses First Amendment speech, association, and petition rights; Fifth Amendment due process and equal protection rights; and the Sixth Amendment right to counsel, the anti-First Amendment attack of the order — specifically its retaliatory function — is key to much of the rest of the decision because it is the foundational flaw of the action.

“EO 14230 openly acknowledges that plaintiff engaged in speech and other activities protected by the First Amendment,“ Howell explained, expanding:

Section 1 of the Order, which sets out its “Purpose,” cites three reasons for the enumerated action items in Sections 2 through 5 that federal agencies are ordered to take against plaintiff: (1) the Firm’s representation of “Hillary Clinton” during the 2016 presidential election; (2) the Firm’s involvement in litigation against “election laws, including those requiring voter identification”; and (3) the Firm’s alleged discrimination in “hiring and promotion” and efforts to “purposefully hide the nature of” this alleged discrimination “through deceiving language.” EO 14230 § 1, 90 Fed. Reg. at 11781. The associated fact sheet adds a fourth: “Perkins Coie LLP has filed lawsuits against the Trump Administration,” which are also described as “partisan lawsuits against the United States.” EO 14230 Fact Sheet. These four reasons are the sole rationales provided for the issuance of EO 14230, see generally EO 14230, 90 Fed. Reg. at 11781-83; EO 14230 Fact Sheet, and each, on their face, implicate First Amendment protected activities.

So often, this administration is not hiding the ball. They are saying what they are doing and just expect everyone to let them get away with it.

Focus on Trump’s actions — and challenge their defenses.

Howell does not stand for explanations that are simply not credible":

[T]he government tries to dampen what it calls “all the furor generated in the press and elsewhere,” Gov’t’s Opp’n at 5, and the “level of hysteria,” id. at 10, by denying that the Order “is the Executive Branch . . . acting in its capacity as a sovereign to punish citizens for exercising their First Amendment Rights,” id. at 5. To believe this explanation requires ignoring the past and current factual context for, and the actual text and impact of, EO 14230, which targets plaintiff for adverse agency action when plaintiff is neither employed by nor a contractor with the government … and, instead, is a law firm representing some clients disliked by the President, engaging in some litigation seeking results disliked by the President, and operating its business, in part, in a manner disliked by the President.

Don’t fall for his bravado. Bullshit can and should be called bullshit.

In addressing the security clearance provision, for example, Howell highlighted Paul Weiss’s capitulation to prove the emptiness of any claimed basis for that section of the Perkins Coie order. “[T]ellingly, the Paul, Weiss EO contained a virtually identical security clearance review provision to the one at issue in this case,” she wrote. And yet, “the Paul, Weiss EO was revoked only seven days after its issuance when President Trump reached a ‘deal’ with that firm.“ Summarizing the “deal,” Howell then noted, “[N]one of these agreed-upon policy or practice changes appear to explain or address how any national security concerns sufficient to warrant the Paul, Weiss EO could have changed so rapidly.“

State the fundamental legal principles that the administration is ignoring.

Looking at the contracting provision, Howell wrote, [T]he fact sheet says it all: plaintiff and its clients with government contracts are targeted because of plaintiff’s “partisan lawsuits.” EO14230 Fact Sheet. The retaliation for core First Amendment speech … and the viewpoint expressed by that advocacy, could not be stated more explicitly.”

In summing up the First Amendment section of Friday’s opinion, Howell wrote:

EO 14230, the accompanying fact sheet, and the context surrounding the Order’s issuance each express President Trump’s disapproval of plaintiff’s First Amendment activity and demonstrate that EO 14230 targeted plaintiff because the Firm 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.

Plain and simple.

Enforce the law.

As Howell concluded in the opinion, “Plaintiff has amply demonstrated entitlement to summary judgment on its claims that EO 14230 violates the First, Fifth and Sixth Amendments.”

In addition to ordering, thus, that “defendants are PERMANENTLY ENJOINED from implementing or enforcing Executive Order 14230 in any way,“ Howell’s final order in the case included three pages worth of steps that she determined were needed to be laid out in order to ensure that the administration would actually, and “in good faith, take such other steps as are necessary to prevent the implementation or enforcement of Executive Order 14230 and to reverse any implementation or enforcement of Executive Order 14230.

Finally, she “ORDERED that this Court shall retain jurisdiction to enforce or modify this Order.“

Stay alert.

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Closing my tabs

This Sunday, these are the tabs that I am closing: