A (relatively) short excerpt from today's long decision by Judge Richard Leon (D.D.C.) in Wilmer Cutler Pickering Hale & Dorr LLP v. Executive Office of the President; there's a lot going on here, but in general I agree with the First Amendment and Sixth Amendment arguments (I'm not sure either way about the others):
The cornerstone of the American system of justice is an independent judiciary and an independent bar willing to tackle unpopular cases, however daunting. The Founding Fathers knew this! Accordingly, they took pains to enshrine in the Constitution certain rights that would serve as the foundation for that independence. Little wonder that 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. Indeed, to rule otherwise would be unfaithful to the judgment and vision of the Founding Fathers! …
"[T]he First Amendment prohibits government officials from retaliating against individuals for engaging in protected speech." WilmerHale alleges that "[t]he Order blatantly defies this bedrock principle of constitutional law." I agree!
To establish First Amendment retaliation, WilmerHale must plausibly allege and then prove: "(1) [WilmerHale] engaged in conduct protected under the First Amendment; (2) [defendants] took some retaliatory action sufficient to deter a person of ordinary firmness in [WilmerHale's] position from speaking again; and (3) a causal link between the exercise of a constitutional right and the adverse action taken against [WilmerHale]."
WilmerHale represents a range of clients in litigation. This advocacy is unquestionably protected conduct under the First Amendment. See Legal Servs. Corp. v. Velazquez (2001) (treating "the analysis of certain legal issues" and their "presentation to the courts" as "speech and expression"); Lehnert v. Ferris Faculty Ass'n (1991) ("We long have recognized the important political and expressive nature of litigation."); McDonald v. Smith (1985) ("[F]iling a complaint in court is a form of petitioning activity ….")….
The WilmerHale Order is, on its face, retaliation for the firm's protected speech. Indeed, § 1 outlines the motivations of the Order, including WilmerHale's pro bono practice, "obvious partisan representations to achieve political ends," and involvement in immigration and election litigation.
