Judge Howell Declines To Let The Mad King Cut Off Lawyers' Heads

Trump's executive order attacking Perkins Coie is on hold ... for now.

On March 6, President Trump issued a shocking broadside against the law firm Perkins Coie. In an executive order, he called the firm “dishonest and dangerous” and accused it of “serious violation of the public trust.” Gesturing vaguely in the direction of national security, he banned thousands of law firm employees from federal buildings, barred the government from doing business with its clients, and stripped security clearances from anyone related to the firm.

Trump has long despised Perkins Coie, which represented Hillary Clinton and the Democratic National Committee during the 2016 election. Indeed the first paragraph of the order mentions Clinton, as well as GOP supervillain George Soros. And when he signed the order, he promised that he’d be putting out hits on perhaps fifteen other firms.

The edict is functionally a death penalty for Perkins Coie. Biglaw’s bread and butter is large corporations, almost all of whom do business with the federal government.

“It truly is life-threatening,” argued the plaintiffs’ lawyer Dane Butswinkas. “It will spell the end of the law firm.”

After a two-hour hearing, Judge Beryl Howell agreed. She held that the order violated the First Amendment, Perkins Coie’s due process rights, and the Sixth Amendment right to counsel of the firm’s clients. She issued a temporary restraining order (TRO) with respect to three sections of the order, as requested in the plaintiffs’ motion. (Two other sections dealing with “DEI” and security clearances were challenged in the complaint, but not the motion for TRO.)

In short, it was a complete loss for the government.

Revenge Tour

On the campaign trail, Trump promised to rain down vengeance on his enemies if elected. And with Elon Musk functionally running the government, he’s had time for it.

First Trump parked his personal lawyers at the Justice Department, where they are assiduously purging and “investigating” anyone involved in Special Counsel Jack Smith’s work. Then he suspended security clearances for attorney Mark Zaid, who represents whistleblowers, as well as employees at Covington & Burling, after Smith’s financial disclosure revealed a few hours of pro bono assistance from the megafirm.

But on March 6, Trump went nuclear with his “Addressing Risks from Perkins Coie LLP” order. The document is both broad and vague, instructing officials at more than 90 federal agencies to spend 30 days sniffing out any contacts Perkins Coie might have with the federal government and interrogating all contractors about their ties to the firm.

The ban on Perkins Coie accessing government buildings might be read to bar the firm’s more than 3,500 employees, less than half of whom are lawyers, from entering a federal courthouse or even a post office. And the mandate for government contractors to “disclose any business they do with Perkins Coie and whether that business is related to the subject of the Government contract” clearly invades attorney-client privilege.

Moreover Trump made no effort to disguise the animus behind his attack on the firm which originally hired Fusion GPS, the company that produced the Steele Dossier back in 2015. In fact, he’s been gunning for Perkins Coie for years.

His Attorney General Bill Barr appointed Special Counsel John Durham to examine the origins of the Russia investigation. They hoped to make charges stick against attorneys from Perkins Coie, including Michael Sussmann and Marc Elias, who represented the DNC and shopped around dirt on Trump. But Sussmann was speedily acquitted of lying to the FBI, and after four years, all Durham had to show for his work was 306-pages of stringboard theorizing that was widely ridiculed before being entirely forgotten.

Sussmann decamped to Fenwick, another giant law firm, and Elias went on to become a persistent thorn in Republicans’ side, setting up his own shop and filing dozens of lawsuits to vindicate voting rights and fend off Trump’s attempt to steal the 2020 election.

Trump himself tried desperately to resurrect the conspiracy theory in a civil RICO trollsuit filed in Florida against Hillary Clinton, Perkins Coie, James Comey, Sussmann, Elias, the DNC, and half the Democrats in Washington. But all he got out of it was $1 million in sanctions levied against him and his attorney Alina Habba.

“This case should never have been brought. Its inadequacy as a legal claim was evident from the start,” Judge Donald Middlebrooks fumed. “No reasonable lawyer would have filed it.”

Trump appealed, but now he’s in a position to kneecap all those competent lawyers who dared to cross him. Because if you’re a big firm who can’t represent clients who deal with the government, you are functionally DOA.

A Bill of Attainder by Any Other Name

With the departure of Elias and Sussmann, just eight lawyers remain in Perkins Coie’s political practice group, which now accounts for less than one percent of the firm’s revenue. And while the firm is associated in the public mind with Democrats, Trump himself named two of its lawyers to the federal bench during his first term.

A significant portion of Perkins Coie’s business is representing government contractors and litigating patent cases before the US Patent and Trademark Office, an executive branch agency. Its 15 largest clients do business with the federal government, accounting for 25 percent of the firm’s total revenue. Cutting it off from that income will be catastrophic.

The fallout from the executive order was swift. The day it was signed, an attorney from the Fraud Section of the Criminal Division canceled a previously scheduled meeting, citing the order’s prohibition on “engaging” with counsel from Perkins Coie. According to an affidavit filed by one of the firm’s partners, multiple longterm clients have been forced to find other representation:

The day after the Executive Order, an official of a federal agency informed a client of Perkins Coie that, because of the Order, the client's Perkins Coie lawyers should not attend a scheduled meeting with an office in that agency to discuss a pending matter. The client had engaged Perkins Coie to defend that client in that enforcement action, and Perkins Coie performed substantial work on the matter, totaling over $1 million in fees, and interacted with the agency on this matter in the interim. The client, after expressing great reluctance and regret, said it was forced to hire other law firms to represent it before the federal government and in related litigation.

A Chill in the Courtroom

The hearing before Judge Howell was bizarre on multiple levels.

DOJ Chief of Staff Chad Mizelle presented the government’s case, rather than an employee from the Civil Division. Perhaps Mizelle’s colleagues were loath to torpedo their career prospects by coming out in favor of the president’s right to destroy the livelihoods of lawyers on a whim. Whatever the reason, the absence of career staff highlighted the inescapable fact that the order was an attack on the legal profession writ large, not just one disfavored firm.

Indeed Judge Howell herself called Williams & Connolly “brave” to take the case in light of media reports that multiple law firms had been approached by Perkins Coie and declined, fearing that they would be the president’s next target.

The New York Times reports that Quinn Emanuel was one shop that took a pass, and that efforts by a consortium of big firms to “hang together” and sign a statement protesting the attack on Perkins Coie had fizzled out.

But Mizelle doggedly insisted that the First Amendment was irrelevant here, since the president has “unreviewable” discretion to declare someone a national security risk. “This is clear Article II executive authority,” he repeated.

“Will the next Executive Order issued by President Trump be titled ‘Addressing Risks from Williams & Connolly?’” Judge Howell countered.

Mizelle hemmed and hawed and said he didn’t think that was likely, but stuck to his claim that, if Trump decided it was in the national interest, nothing could stop him.

Instead he leaned into the claim that the harms of the order are all speculative — “a series of bogeymen” — because it’s not clear how the federal agencies will interpret them, unsubtly suggesting that Perkins Coie had simply fabricated the stories of clients firing them after the order was issued. But none of his antics made a bit of difference.

Immediately after the parties finished arguing, Judge Howell read her pre-drafted ruling from the bench. It was a scathing indictment of Trump’s attempt to use the levers of government to punish his enemies.

“I am sure that many in the legal profession are watching in horror at what Perkins Coie is going through here,” Judge Howell warned. “The order casts a chilling harm of blizzard proportions across the legal profession.”

She castigated Trump’s effort to chill speech and association, in violation of the First Amendment, by making an example of a law firm that dared to represent clients he doesn’t like.

“This may be amusing in ‘Alice in Wonderland’ where the Queen of Hearts yells, ‘Off with their heads!’ at annoying subjects and announces a sentence before a verdict,” she said. “But this cannot be the reality we are living under.”

The analogy is achingly apt. We are trapped in a country with a manic “dictator for a day” who is simultaneously ridiculous and terrifying. But if Trump is the mad queen, his courtiers are all Humpty Dumpty, insisting that every word means “just what I choose it to mean — neither more nor less.”

Can Trump shout “Two genders!” and “National security!” and “No birthright citizenship!” and force his definition on the rest of us? Or as Lewis Carroll put it: “‘The question is,’ said Humpty Dumpty, ‘which is to be master — that’s all.’”