WASHINGTON (CN) — A federal judge on Friday struck down the Trump administration’s executive order targeting law firm Perkins Coie for its work on Hillary Clinton’s 2016 campaign, slamming the order as an attack on the legal profession and a step toward totalitarianism.
U.S. District Judge Beryl Howell granted the law firm’s request for summary judgment to block President Donald Trump’s executive order, which barred Perkins Coie from engaging in any government business, entering government buildings and ordered the revocation of employees’ security clearances.
“Using the powers of the federal government to target lawyers for their representation of clients and avowed progressive employment policies in an overt attempt to suppress and punish certain viewpoints, is contrary to the Constitution, which requires that the government respond to dissenting or unpopular speech or ideas with ‘tolerance, not coercion,'” the Barack Obama appointee wrote in her 102-page opinion.
In the March 6 order, Trump argued that Perkins Coie had acted “inconsistent with the interests of the United States” and its “national interest.”
Howell said the order drew from “a playbook as old as Shakespeare,” outlined in Henry VI, where rebel leader Jack Cade’s follower, Dick the Butcher, suggests the first thing they should do upon taking the English throne is “kill all the lawyers.”
Howell wrote that by removing the “guardians of the rule of law,” the rebels could remove a major hurdle toward acquiring more power.
“In a cringe-worthy twist on the theatrical phrase ‘Let’s kill all the lawyers,’ [the executive order] 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,” Howell wrote.
She noted that former Supreme Court Justice John Paul Stevens, a Gerald Ford appointee, cited the same quote in his 1985 dissent in Walters v. National Association of Radiation Survivors, where he said “that disposing of lawyers is a step in the direction of a totalitarian form of government.”
Trump has targeted five firms — Perkins Coie, WilmerHale, Jenner Block, Susman Godfrey and Covington Burling. He has also made deals with nine firms for $1 billion in free legal services for initiatives backed by the administration — Paul Weiss, Skadden Arps, Willkie Farr, Latham Watkins, Milbank, Cadwalader, Kirkland Ellis and Simpson Thacher.
In a footnote, Howell said that the agreements did not appear to eliminate the threat of a similar executive order, and thus spreads doubt that the firms’ clients won’t receive the vigorous representation they’re entitled to if they’re deemed inconsistent with the national interest.
During two hearings last week, Justice Department attorney Richard Lawson struggled to assert any justification for Trump’s executive orders beyond retaliation against the firms for their viewpoint, a clear violation of the First Amendment.
Lawson suggested that Trump had legitimate concern regarding the firms’ hiring practices — Trump has citied their Diversity, Equity and Inclusion programs as being detrimental to white male employees — to which U.S. District Judge Richard Leon exclaimed: “Give me a break.”
The George W. Bush appointee, presiding over a near identical suit by Jenner Block on Monday, previously granted the firm a temporary restraining order, and is expected to rule on that suit in the coming weeks.
Lawson also argued that Trump should have the discretion to determine what is in the national interest — which he tied to national security — and thus could revoke swaths of security clearances.
In her opinion, Howell conceded that the president should have discretion in national security matters, but noted that any such action was still beholden to the Constitution.
By applying a discriminatory policy to an entire group — 24 Perkins Coie employees with clearances from past military or law enforcement service and as military reservists — Trump clearly acted illegally, Howell said.
During the Perkins Coie hearing, Howell worried that granting the president full discretion to revoke a group’s security clearances could bring the country back to the Red Scare, where Senator Joseph McCarthy weaponized Cold War anxieties to assert communist infiltration throughout the government to blacklist political enemies and so-called subversives.
She said that if Trump could simply label any law firm, organization or group as acting against the national interest — a term Lawson could not define — he could suspend the clearances of an entire ethnic or ideological group.
“When immediate suspension for security clearance is not for personal conduct, but simply their associations, it is no different than a directive to suspend security clearances for all Jews, Muslims, women, LGBTQ people, Republicans or Democrats,” Howell said then.
In her Friday opinion, Howell lauded the attorneys from Williams Connolly for their representation of Perkins Coie and the hundreds of lawyers, firms, legal organizations and government officials who filed amicus briefs in the case.
“If the founding history of this country is any guide, those who stood up in court to vindicate constitutional rights and, by doing so, served to promote the rule of law, will be the models lauded when this period of American history is written,” Howell wrote.
The Trump administration is likely to appeal Howell’s decision to the D.C. Circuit, and ultimately to the Supreme Court.
