Yesterday in Court

Judge Beryl Howell held a hearing Wednesday afternoon in Washington, D.C., in the case filed by the Perkins Coie law firm against President Trump over the executive order he signed that is little more than an attack on the firm because Trump doesn’t like some of the clients they’ve represented in the past. That is not what executive orders are for, and Judge Howell pressed pause on this one, granting a temporary restraining order (TRO) that stops its enforcement for now. But the issues under consideration here are bigger than just one law firm.

The executive order directed executive branch agencies to terminate contracts with Perkins Coie “to the extent permitted by law,” to limit the firm’s approximately 1,200 lawyers’ access to federal buildings and federal employees, and to end security clearances for employees at the firm. Government agencies are forbidden to hire any Perkins Coie employees, which includes paralegals, staff, IT, and others, without obtaining permission from the highest levels of government.

Judge Howell ruled from the bench, entering a TRO as to Sections 1, 3, and 5 of the executive order, which she explained (as we have frequently discussed here), is not a ruling on the merits of the lawsuit, but simply an order meant to freeze the status quo in place temporarily while the Judge reviews briefs and other materials from the parties to get a better understanding of the situation. But it was hard to read anything other than disgust with the executive order, which she said from the bench likely violated a panoply of important rights, including the First Amendment, Due Process, and the Sixth Amendment right to counsel. She ordered the parties to propose a schedule for further proceedings in the case on Thursday and suggested during the hearing that they skip the preliminary injunction stage and discuss briefing summary judgment.

That’s an important hint about where the case is likely headed. It suggests the Judge intends to rule quickly and speed the case on to an appeal. Summary judgment is a motion lawyers use to ask a judge to decide a case before trial because the facts are not in dispute, and they are entitled to win as a matter of law. The Judge’s comments suggest that she believes this will be such a case, and if so, the conclusion based on the hearing will be in the law firm’s favor.

The hearing lasted for two and a half hours, and it was exhausting—exhausting in a way I have not experienced since trying cases or arguing high stakes appeals in court—even though all I was doing was listening in on the phone line.

Judge Howell found that Trump’s executive order prohibiting federal agencies from doing business with Perkins Coie would cause irreparable injury—the firm offered evidence it was losing clients, and its business would be unsustainable if the order stayed in effect. “It will spell the end of the law firm,” she said at one point.

She also found that the firm was likely to win on the merits for virtually every reason offered, including that the EO violated the First Amendment because it was “viewpoint discrimination.” The government can’t penalize speech that involves views it doesn’t like while permitting speech it agrees with to happen without consequence. That’s the upshot of the executive order here, which perpetuates Trump’s long-term fixation on Fusion GPS, which compiled a dossier of information critical of Trump during the 2016 election cycle. Perkins Coie was involved in hiring Fusion GPS while it was representing Hillary Clinton. Given that origin story, the Judge thought it was likely the firm could establish that Trump was using his position to further a personal vendetta in violation of the First Amendment.

Finally, Judge Howell found that issuing a TRO was in the public interest. Trump is using the presidency to pursue “what appears to be a wholly personal vendetta” against the firm. Without a TRO, she reasoned, lawyers across the country would live in fear of representing clients whom the president might not like, and that “threatens the very foundation of our legal system.” She explained that courts in other cases have held that our justice system is based on the fundamental basis that it works best when all parties have representation, and the “chilling effect of this EO threatens to undermine our entire legal system and the ability of people to have access to counsel.”

The president, Judge Howell concluded, is entitled to his beliefs, preferred causes, and dislikes, but he can’t target lawyers representing his political opponents.

Before the administration set foot in court, they’d already lost The Wall Street Journal, which explained in advance why the Trump administration should lose this one:

From The Wall Street Journal

Chad Mizelle, the Justice Department chief of staff, argued that the firm was just complaining about hypothetical situations like “what if we can’t get into a courthouse,” but that none of them had actually happened. It was a weak-sauce argument, given that the order provides for precisely that sort of thing. Even though the executive order bars Perkins Coie from doing business with the government, Mizelle claimed they were worried about “boogeymen.” The Judge was not impressed.

Mizelle also argued that it’s “the right and prerogative” of the president to decide who does and doesn’t get security clearances and that ruling otherwise would violate Article II of the Constitution. The president, he argued, can make the call that people at the firm are a risk to national security.

He also argued that being barred from government buildings didn’t mean the firm couldn’t practice law. He said that during Covid, lawyers conducted their work from home. An incredulous Judge Howell read the language of the executive order to him, and it was clear that it was much broader than the way he presented it. Judge Howell clarified that it prohibits government offices and employees from “engaging” with Perkins Coie lawyers, which would seem to make ongoing work impossible.

Perkins Coie was represented by lawyers from another highly regarded Washington, D.C., firm, Williams and Connolly. Fourteen lawyers from the firm signed the pleadings, an unspoken display of solidarity in the face of the president’s shameful conduct. “Courts mete out punishment, not presidents” the lawyer who argued in court told Judge Howell, explaining that lawyers are required to represent clients, even those who are unpopular, just like future President John Adams did following the Boston Massacre. The lawyer argued that “The president is punishing this law firm” for doing its duty and that if he is permitted to continue, “we will be in a country we barely recognize.”

Judge Howell is experienced when it comes to litigation Donald Trump has an interest in. She was involved in litigation over the Mueller Report. She handled a number of January 6 cases, and when called upon following Trump’s pardons to dismiss cases against two members of the Proud Boys who had pled guilty but not yet been sentenced, she pushed back hard against Trump’s claim the prosecutions were not legitimate. So she understands that when he litigates, he frequently does it as though the rules don’t apply to him.

That led her to take an important step, designed to protect her decision. She noted that although TROs can’t be immediately appealed, the Trump administration has nonetheless tried to appeal other similar orders in recent weeks. That includes the Supreme Court’s narrow 5-4 decision not to hear Trump’s effort to appeal AIDS Vaccine Advocacy Coalition v. United States Department of State, one of the USAID cases, following entry of a TRO. So she proceeded to offer lengthy analysis and legal support for her ruling from the bench, explaining that she was doing it to give the appellate courts a full basis for understanding her ruling. She gave the appellate courts every reason to affirm her decision.

This executive order is dark, authoritarian stuff. If presidents can, for no reason or for bad reasons, decide that individuals or businesses are operating contrary to the national interest and strip them of their ability to make a living and of other rights, then we are no longer a democracy. So even though this is “just” a TRO, it’s a big win for Perkins Coie, but also for the legal profession, the rule of law, and democracy. Presidents shouldn’t be able to use the power of the presidency to retaliate against people they don’t like and prevent lawyers from representing their clients. Wednesday, a federal judge said so and told Trump no.

We’re in this together,

Joyce