Shakespeare And The Constitution: Judge Smacks Down Trump Assault On Legal Representation
First the players in this show.
The Plaintiff: Perkins Coie is a large D.C. based law firm that frequently is involved in political litigation and high profile criminal cases. It attracted Trump’s ire because in 2016 it represented Hillary Clinton and hired another firm (“Fusion GPS”) that in turn hired Christopher Steele who produced the notorious “Steele Dossier” that was one of the triggers for what would become the Mueller Russia investigation. Perkins Coie was also one of the leading law firms to represent clients opposing Trump’s 2020 election challenges, and did so very successfully. For nearly a decade Trump has repeatedly sworn vengeance against Perkins Coie. In 2022 he sued the firm for its role in triggering the Mueller investigation. The lawsuit was promptly dismissed.
The Defendant: Donald Trump. As President he attempted to fulfill his vows to get back at Perkins Coie. He issued Executive Order 14230, against the company, one of several similar executive orders he signed against law firms that had crossed him. Several other law firms caved, and came to settlements effectively agreeing to work for Donald Trump.
Executive Order 14230: It is quite chilling. The order is rather open in declaring its purpose is to punish the firm for “representing failed Presidential candidate Hillary Clinton” and successful challenges to election laws while representing clients sponsored by “activist donors including George Soros.”
The order directs the executive branch of the United States to:
- Revoke all security clearances by Perkins Coie employees. Such clearances were granted to 24 attorneys in the firm. For some it was so they could represent clients in cases involving sensitive information. Revoking their clearance denied those clients of their 6th Amendment right to counsel of their choice. For other members of the firm their revoked clearances were in their capacity as military reservists and had nothing to do with their work at Perkins Coie.
- Terminate all contracts with anyone or any firm contracting with Perkins Coie (this would include Perkins Coie clients) who have contracts with the government.
- Orders the EEOC to investigate Perkins Coie for its statements supporting Diversity, Equity and Inclusions (DEI). Federal law allows the EEOC to initiate investigations only in response to victim complaints presented to it. The EEOC received no such complaints. Thus this directive was in clear violation of federal law.
- Banned all Perkins Coie employees from all federal buildings. As the court noted, this order included everyone “from its partners to its associate attorneys, secretaries, and mailroom attendants.” This effectively prevented Perkins Coie attorneys from representing any clients in federal court. Indeed, Trump Administration officials promptly cancelled meetings scheduled with Perkins Coie attorneys on federal property.
- Banned any federal agency from ever hiring a Perkins Coie employee. This once again applied to all employees, including secretaries and mailroom workers.
As stated this EO was similar to others made against other law firms Trump had a bone to pick with. Some of those capitulated by effectively agreeing to work for Donald Trump. If you are ever in a position where you believed yourself aggrieved by the government I expect you would want the option of being represented by counsel not beholden to that very same government. Trump’s EO’s threatened that very basic right to counsel.
Perkins Coie did not capitulate. It sued.
The Decision: Yesterday Judge Beryl Howell issued a 102 page decision granting summary judgement to Perkins Coie on all counts. In doing so the judge also denied a cross motion for summary judgement by Trump to dismiss the case. Summary judgement is a pretrial ruling that is appropriate when there are no material matters in dispute and the moving party is entitled to judgement as a matter of law. It reflects a decision by the court that no reasonable jury could rule in favor of the non-moving party.The court granted full injunctive relief, granting a “permanent injunction barring enforcement of any portion of EO 14230 by any Executive branch agency.”
The court found the EO violated Perkins Coie’s rights of free speech and freedom to petition the government under the First Amendment. The court ruled the singling out of Perkins Coie violated the firm’s right to equal protection of the law under the 5th Amendment, and that the summary action, without individualized review, punishing the firm violated the firm’s right to due process under the 5th Amendment. The court also found the decision interfered with the ability to Perkins Coie to provide effective counsel under the 6th Amendment.
Key to the court’s finding was that Trump EO was retaliatory in nature, and retaliated against Perkins Coie for exercising those very Constitutional rights.
“EO 14230 targets the Firm for unconstitutional retaliationbased on two different types of viewpoints expressed by plaintiff in the exercise of First Amendment protected activities.”
These activities included “association with, and advocacy on behalf of, the President’s political opponents in the 2016 and 2020 elections” and statements the firm made in support of DEI. Facts supporting the retaliatory intent included the plain words of the EO itself and Trump’s numerous statements over a decade attacking the firm and threatening retribution against the firm.
The judge likened Trump’s actions to the famous quote in Shakespeare: “The first thing we do, let’s kill all the lawyers,” where the character suggests this as a means to remove “the guardians of the rule of law” thereby removing “a major impediment to the path to more power.” However, the judge adds that Trump takes “cringe-worthy twist” on the Shakespeare quote as “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.” [emphasis added by the court]
Trump thus seeks to eliminate not only his political opponents (by threat of prosecution and so forth) but also his legal opponents by intimidating any law firms who would represent them.
Imagine such a country where the regime’s decrees cannot be challenged in court because the lawyers to do so have all been coopted by the regime or otherwise intimidated from filing such challenges. We would simply no longer be a Constitutional Republic. The rights of our Constitution, written to protect us under the rule of law from government overreach, would be meaningless.
With nothing less than that at stake Perkins Coie took a stand. Not all law firms did. The judge directed some shame towards those capitulating firms stating:
“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.”
I agree.
