WASHINGTON (AP) — Two major law firms asked separate judges Wednesday to permanently block President Donald Trump’s executive orders that were meant to punish them and harm their business operations.
The firms — Perkins Coie and WilmerHale — say the orders imposed in March are unconstitutional assaults on the legal profession that threaten their relationships with clients and retaliate against them based either on their past legal representations or their association with particular attorneys whom Trump perceives as his adversaries.
Courts last month temporarily halted enforcement of key provisions of both orders, but the firms asked in court Wednesday for the edicts to be struck down in their entirety and for judges to issue rulings in their favor. Another firm, Jenner & Block, is scheduled to make similar arguments next week and a fourth, Susman Godfrey, is set to make its case next month.
“The entire executive order is retaliatory,” Dane Butswinkas, a lawyer who presented arguments on behalf of Perkins Coie, told a judge.
U.S. District Judge Beryl Howell did not immediately rule on the firm's request, but she repeatedly expressed deep unease over the executive order, signaling that she was inclined to side with Perkins Coie.
She grilled a Justice Department lawyer over the government's plans to suspend the security clearances of lawyers at the firm and asked him to respond to the suggestion that the blacklisting of disfavored law firms was similar to the “Red Scare” panic over communism decades ago. And she pressed him to explain why the Trump administration was forcing firms to disavow the use of diversity, equity and inclusion considerations in their hiring practices.
“Why does the administration view those three words as dirty?” Howell asked.
Justice Department attorney Richard Lawson, who is representing the Trump administration in challenges to the executive orders, said the president was within his prerogative to issue the orders and the government had good basis to be concerned by what he called the “unlawful” evaluation by law firms striving to reach race and gender targets in their workforce.
The spate of executive orders taking aim at some of the country’s most elite and prominent law firms are part of a wide-ranging retribution campaign by Trump designed to reshape civil society and extract concessions from perceived adversaries. The actions have forced targeted entities, whether law firms or universities, to decide whether to push back and risk further incurring the administration’s ire or to agree to concessions in hopes of averting sanctions. Some firms have challenged the orders in court, but others have proactively reached settlements.
The executive actions have generally imposed the same sanctions against the targeted firms, including ordering the suspension of security clearances, the termination of federal contracts and restrictions in access to federal buildings for firm employees.
Judges had earlier blocked the enforcement of sections related to federal contracts and building access but not the provisions related to security clearances.
In court Wednesday, Howell said she was troubled that the administration was putting the “cart before the horse” by stripping security clearances en masse without first conducting an individualized review of attorneys. She appeared to grow exasperated as Lawson struggled to answer questions about the basic mechanics for implementing the security clearance suspension or the review process for the targeted attorneys.
"You can’t tell me which agencies are conducting this review?” she asked at one point.
“You don’t know whether the firm or the attorney whose security clearance has been suspended has been given notice about the timing of the review” or whether they will have an ability to object to the review, she said.
Lawson said the administration did not intend for the security clearance suspensions to be a blanket ban but rather to allow for individualized and “granular” assessments of attorneys.
The administration has invoked potential national security concerns in justifying the executive orders, but Butswinkas, the lawyer representing Perkins Coie, said that argument was laughable given that the attorneys at the firm whose work was singled out by the order left the practice several years ago.
“To me, it sounds more like national insecurity than national security,” Butswinkas said.
The first law firm action took place in February when Trump suspended the security clearances of attorneys at Covington & Burling who have provided legal services to special counsel Jack Smith, who investigated the president between his first and second terms and secured two indictments that have since been abandoned.
The executive order targeting Perkins Coie singled out the firm's representation of Democratic presidential nominee Hillary Clinton during the 2016 presidential race, and the one against WilmerHale cited the fact that special counsel Robert Mueller — who investigated Trump during his first term over potential ties between Russia and his 2016 campaign — was for years a partner at the firm.
“While most litigation requires discovery to unearth retaliatory motive, the President openly proclaims that he is targeting WilmerHale for representing his political opponents in election-related litigation, challenging his immigration-enforcement policies, associating with his perceived enemies (including a Special Counsel appointed by the President’s own Justice Department), and defending a client’s race-conscious college admission policies," lawyers for WilmerHale wrote in a court filing ahead of Wednesday's arguments.
Last month, Paul Weiss cut a deal with the Trump administration that resulted in an executive order against the firm being rescinded.
Since then, more than a half-dozen other firms have reached agreements with the White House that require them, among other things, to dedicate free legal services to causes the Trump administration says it champions.
They include Skadden, Arps, Slate, Meagher & Flom; Milbank; Willkie, Farr & Gallagher; Kirkland & Ellis; Latham & Watkins LLP; Allen Overy Shearman Sterling US LLP; Simpson Thacher & Bartlett LLP; and Cadwalader, Taft & Wickersham.
Eric Tucker, The Associated Press
