After President Donald Trump began penalizing major law firms that had offended him in one way or another last February, nine of them chose to surrender rather than fight. They agreed to humiliating concessions that included pro bono work, totaling nearly $1 billion, for causes favored by the president. But several firms stood their ground, arguing that Trump's executive orders targeting them violated the First Amendment and undermined the Sixth Amendment right to counsel.
So far the latter approach has proven to be pragmatic as well as principled. Perkins Coie, Jenner & Block, Susman Godfrey, and WilmerHale have obtained court orders barring Trump from abusing his authority to punish law firms for representing his political opponents, supporting causes he does not like, or employing attorneys who have crossed him. The latest example, a permanent injunction that a federal judge in Washington, D.C., issued on Tuesday, underlines the threat posed by Trump's petty vindictiveness. In an opinion peppered with exclamation points, U.S. District Judge Richard J. Leon says Trump's order against WilmerHale defies the First Amendment in four ways, violates the Fifth Amendment's guarantee of due process in two ways, unconstitutionally interferes with the right to legal representation, and flouts the separation of powers.
"The cornerstone of the American system of justice is an independent judiciary and
an independent bar willing to tackle unpopular cases, however daunting," Leon writes. "In the nearly 250 years since the Constitution was adopted no Executive Order has been issued challenging these fundamental rights. Now, however, several Executive Orders have been issued directly challenging these rights and that independence. One of these Orders is the subject of this case. For the reasons set forth below, I have concluded that this Order must be struck down in its entirety as unconstitutional."
