Federal judge blocks Trump order against law firm, calling it a "personal vendetta"

Judge Howell issued the temporary restraining order at the conclusion of a two-hour hearing over Trump's executive order against Perkins Coie.

U.S. District Judge Beryl Howell issued a temporary restraining order on Wednesday blocking enforcement of parts of President Donald Trump's executive order issued last week targeting the law firm of Perkins Coie and its clients — an executive order the firm and its lawyers warned would create an “existential” crisis for the firm if not enjoined.

The “retaliatory animus“ of Trump’s executive order, Howell declared after a two-hour hearing, was clear. The order affixed a "badge of infamy" to the firm, and the public interest “demands” that she issue a temporary restraining order (TRO) to protect fundamental aspects of our legal system.

Howell, an Obama appointee, issued her ruling from the bench at the conclusion of the hearing, which was scheduled just a day after the law firm filed the lawsuit.

The TRO blocks enforcement of Sections 1, 3, and 5 of the executive order. Those provisions lay out the “purpose” of the order, the “contracting” directives, and the “personnel” restrictions.

A written order will follow, but Howell laid out her decision extensively, including with citations to court cases and citation pages, from the bench. She did so, she added, because, while TROs are not generally appealable, that has not stopped this administration from trying. (See: Here and here.)

Howell found that Perkins Coie, which is being represented in the unusual litigation by lawyers with the law firm of Williams & Connolly, is likely to succeed in its First Amendment, Fifth Amendment due process, and Sixth Amendment right to counsel claims.

[Update, 10:15 p.m.: Later Wednesday evening, Howell filed the written order, which includes a requirement that the Justice Department file a status report on Friday updating her on “the steps taken to ensure compliance” with the TRO:

Before that, the parties are to submit a joint status report by 4 p.m. Thursday proposing a schedule for the further proceedings in the case.]

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The executive order was just one of several actions taken by Trump and members of his administration this past week targeting specific entities for disfavored treatment because, as I wrote, “Trump doesn’t like them and what they stand for.”

On Wednesday, Howell said virtually the same thing, repeatedly, in regards to the Perkins Coie order specifically.

At one point early in the hearing, Howell asked Dane Butswinkas, the Williams & Connolly partner representing Perkins Coie at the hearing, whether Perkins Coie had any notice of the executive order.

"No notice or consultation at all," he said.

And yet, as the lawyers wrote in arguing for the TRO, “The threat to Perkins Coie [from the executive order] is truly existential—which is the Order’s objective. If no TRO is granted, the Firm may not be solvent long enough for the Court to hear this case on the merits. If that happens, the fact that the Order is patently unconstitutional will make no difference.“

Throughout the hearing, Howell appeared almost incredulous of some of the responses given by Chad Mizelle, Attorney General Pam Bondi’s chief of staff. The husband of U.S. District Judge Kathryn Mizelle, a Trump appointee, Chad Mizelle worked for Jared Kushner’s Affinity Partners investment firm during the Biden administration before beginning helping Bondi during the transition.

Mizelle has made clear his position in the Justice Department will include attacking the legal system, so his appearance defending an executive order attacking a law firm is not altogether surprising. Last month, Mizelle filed a judicial misconduct complaint against one of Howell’s colleagues — for actions in a hearing in which he was not even participating.

On Wednesday, he was there — front and center.

At one point, Howell told Mizelle that she found the government’s argument that Trump could do this “chilling.”

Mizelle responded that this sort of action is within the president’s “sole authority” because — per DOJ — the executive order involves matters of national security.

After some back and forth, Howell asked whether, under that logic, Williams & Connolly “could be next.”

Although he fought the hypothetical question, Howell pressed further and Mizelle eventually agreed that the government believes such an order could follow — if there's a national security finding.

Later, regarding the “federal government buildings” restriction of the order, she asked Mizelle whether Perkins Coie attorneys could be stopped or even arrested at the door of a federal courthouse.

"I very much doubt it," Mizelle said at first, but then added, "Sure, I guess anything ... is hypothetically possible."

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After that, and following a brief rebuttal from Butswinkas that included him saying that the Constitution described by Mizelle was not the one he knows, Howell issued her TRO from the bench.

Today’s order only addresses Sections 1, 3, and 5 of the executive order.

“Although the entire Executive Order is invalid, this Court should temporarily restrain at least Sections 1, 3, and 5,” the Williams & Connolly lawyers representing Perkins Coie explained in their brief arguing for the TRO. “The constitutional violations are plain.”

Sections 2 and 4, relating to security clearances and Trump’s anti-diversity efforts, are challenged in the lawsuit but were not included in the TRO request, a point that Howell asked about at the beginning of the hearing and reiterated at the end in explaining why her TRO did not address those sections.

Howell found that Perkins Coie is likely to succeed on its First Amendment arguments that the executive order is a form of unconstitutional retaliation and unconstitutional view point discrimination. The "retaliatory animus" is clear, she noted, from the executive order itself — but particularly from the White House fact sheet on the executive order.

On the First Amendment question, she found that, under strict scrutiny, the order is neither narrowly tailored nor does it advance a compelling interest. The mention of "national security" as an interest is insufficient, she found, in light of the actual specifics of the order.

Howell also found the executive order likely violates the Fifth Amendment due process rights of Perkins Coie. "No process was given," Howell stated plainly. Finally, Howell found that Perkins Coie is likely to succeed in its Sixth Amendment right to counsel claim.

When it came to the other factors for granting the TRO, Howell found that those factors also weighed in favor of the law firm. After finding that Perkins Coie had shown it is already facing irreparable harm on economic, constitutional, and reputational fronts, she made her most stern finding — stating that the public interest here “demands” that she issue a TRO.

The public interest strongly favors the issuance of a TRO, she found, due to the viewpoint-based fear that permitting this executive order would create for lawyers throughout the legal system.

In addition to the fact that the executive order is already chilling lawyers in the exercise of their First Amendment rights on that side of the ledger, Howell discussed Trump’s "personal grievance" coming out of the 2016 election and the involvement of since-departed Perkins Coie lawyers in that grievance as a motivating factor for the order.

As the order put it in its opening section, “Notably, in 2016 while representing failed Presidential candidate Hillary Clinton, Perkins Coie hired Fusion GPS, which then manufactured a false ‘dossier’ designed to steal an election.“

His "personal vendetta," Howell concluded on Wednesday, is not a governmental interest.

And that part of the order, along with the “contracting” and personnel” provisions, are now blocked.