“No American President has ever before issued executive orders like the one at issue,” U.S. District Judge Beryl A. Howell wrote in a 102-page opinion. Howell was referring to Trump punishing a law firm without evidence of the firm violating a law, ordering the government to cancel their contracts and blocking their employees from entering government buildings, interacting with government officials, or being hired for government jobs.
The firm being punished was the Seattle-based law firm Perkins Coie, which represented Hillary Clinton’s campaign and the Democratic National Committee during the 2016 presidential race. Aside from representing Guantanamo Bay inmates, Trump declared that “Perkins Coie works with activist donors.”
Trump specifically mentioned George Soros as one of those activists whom the far-right connects to a Jewish left-wing conspiracy. It seemed like a spurious reference, but was it a nod to some of his MAGA base? Trump claims that leftist activists used the courts “to judicially overturn popular, necessary, and democratically enacted election laws, including those requiring voter identification.”
In other words, Perkins Coie lawyers assisted those examining election laws that could have suppressed voter turnout among specific populations, such as Black Americans. Howell wrote that the order was so broad as to be “issuing an executive order targeting the firm based on the president’s dislike of the political positions of the firm’s clients or the firm’s litigation positions is retaliatory and runs head-on into the role of First Amendment protection.”
She previously blocked implementation of the executive order with a temporary restraining order. In the first case, Perkins Coie presented evidence to Howell that it had suffered immediate damages from the penalties. Its 15 biggest clients, which account for about 25 percent of its business, hold government contracts.
Other firms suing the Trump Administration, which Trump labeled “rogue law firms,” presented similar arguments, asserting that they were not breaking the law but were perceived as aiding Trump’s enemies in investigating the possibility of his violating the Constitution. In all instances, Trump sought to punish entire law firms, even though the attorneys involved in what Trump describes as bad behavior are merely a handful of a firm’s hundreds of lawyers.
Nine other firms that Trump attacked capitulated to his demands by discontinuing their DEI efforts and providing Trump with hundreds of millions in pro bono legal work, which I described in a recent column Trump Is Trying to Subvert His Biggest Threat – Lawyers.
Howell’s latest ruling stands out from the other court rulings on Trump’s Executive Orders aimed at crippling the law firms. In each case, Trump’s actions were stopped because the plaintiffs obtained a Temporary Restraining Order (TRO).
Howell’s ruling, on the other hand, permanently blocks a Trump order on constitutional grounds.
Howell bases her ruling on past Supreme Court decisions. She wrote that SCOTUS, in NRA v. Vullo, ruled that “no official, high or petty, can prescribe what shall be orthodox in politics . . . or other matters of opinion.” Additionally, she noted that absent their crucial independence, lawyers would “become nothing more than parrots of the views of whatever group wields governmental power at the moment,” citing Cohen v. Hurley.
Attorney General Pam Bondi issued a memo to other federal agencies, stating that Howell’s ruling was “erroneous” and the law firm’s actions “dishonest and dangerous.” Her argument was mild but still aligned with Trump’s descriptions of judges’ rulings against him as “a hater,” “a so-called judge,” “an Obama judge,” or “Radical Left Lunatic.”
The Justice Department still accused Perkins Coie and other firms of attempting to muzzle Trump’s freedom of speech. Bondi also referred to what she called “an unelected” judge who “invaded the policy-making and free speech prerogatives of the executive branch” by making demands beyond their jurisdiction.
Even though President Barack Obama nominated Howell to be a United States district judge, she is no soft-hearted liberal. She advocated for strict national security measures. As a congressional counselor, she helped draft the USA PATRIOT Act, which received significantly more Republican than Democratic support in Congress. Still, the Coalition to Support and Expand the Freedom of Information Act honored her for working to keep the federal government’s authority in check.
As a judge, Howell struck down a regulation of the Federal Election Commission allowing dark money groups, including nonprofit organizations involved in political activities, to hide their donors. The conservative-dominated SCOTUS chose not to review her decision, allowing it to stand.
Howell’s ruling is not final. The Justice Department may appeal her ruling to the U.S. Court of Appeals for the District of Columbia Circuit, which has a mix of liberal and conservative judges. House Republicans questioned whether the court’s chief judge, James Boasberg, who has ruled against Trump on several major issues, is unfairly favored in receiving litigation challenging Trump’s executive actions.
However, Courthouse News examined approximately 100 cases challenging actions taken by the Trump administration that came before the Appeals Court. They found that Boasberg’s assignments are roughly average for the bench. His fellow D.C. judges, including Judge Trevor McFadden, a Trump appointee, and Senior Judge Royce Lamberth, a Ronald Reagan appointee, have presided over more such cases than Boasberg.
If Trump directs Bondi to go to the appeals court to overturn Howell’s ruling, he faces the possibility that the ruling will favor Howell’s decision. Of course, Trump will appeal to SCOTUS. However, with all of the lower district judges ruling against Trump’s orders, the swing justices on the Supreme Court might determine that his orders are unconstitutional.
It will be a moment of truth for SCOTUS to determine whether it is an institution independent from a president whose politics appeal to six of the justices. Will that political alignment prevent them from opposing his unconstitutional actions?
Being a Trump appointee does not guarantee a favorable ruling. Two federal judges he appointed, Fernando Rodriguez Jr. and Trevor N. McFadden, have already ruled against him in high-profile litigation challenges to his authority.
The Supreme Court justices will read Trump’s Executive Orders and the judges’ decisions that ruled in favor of the four other law firms—WilmerHale, Jenner & Block, Covington & Burling, and Susman Godfrey—that challenged those orders.
Trump’s orders resembled a list of complaints he reiterates at his rallies against the radical left. The judges’ rulings implied that, at a minimum, Trump retaliated against three of the firms for assisting in investigations regarding his possible violations of the Constitution.
WilmerHale hired Robert S. Mueller III, the special counsel who investigated Trump during his first term. Jenner & Block brought on Andrew Weissmann, one of Mueller’s deputies. Both Mueller and Weissmann left their firms in 2021 after Trump lost the election.
Covington & Burling represented Jack Smith pro bono as he led the federal investigations of Trump for allegedly mishandling classified materials and trying to block the 2020 election results.
The attack on Susman Godfrey hit at the core of Trump’s effort to protect election laws that could suppress voter turnout. Trump accused the firm of being a national security threat because its clients were degrading the quality of American elections by “spearheading efforts to weaponize the American legal system.” Judge Loren AliKhan, who ruled against Trump’s order, stated that the US did not demonstrate that the law firm was a national security threat and could not substantiate Trump’s claims that the firm was leading efforts to “weaponize” the legal system.
The brief filed by the bar associations could be seen as demonstrating how Trump has been weaponizing our legal system, stating that Trump’s executive order against Perkins Coie was intended to “discourage other lawyers from daring to provide legal advocacy of which the president disapproves.”
Daniel C. Richman, a Columbia University law professor and former federal prosecutor, best summarized a situation that all of the judges noted: “Chilling the lawyers who represent those people hurts the rule of law because when the government can’t be legally opposed, the law provides no protections to anyone, and you start to live in an autocracy.”
The question is whether the Supreme Court will bend a knee to Trump, as Attorney General Pam Bondi said some firms had. If it overturns Howell’s ruling, our nation is on the road to an autocracy. All citizens, regardless of their political affiliation, must raise this concern loudly enough in the public forum so that all nine justices on the Court hear it.
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