DOJ Makes Little Headway in Push to Revive Trump Law Firm Orders

The Justice Department gained little ground Thursday in its bid to broadly revive Donald Trump’s executive orders targeting law firms, which argued the president’s goal is to chill the legal profession.

DOJ lawyer Abhishek Kambli in his argument before a US appeals court panel focused on Trump’s authority to control security clearances and a lack of judicial authority to review such a decision. Paul Clement, the appellate lawyer arguing for the law firms, responded with a broad argument that the independence of the legal profession is at stake.

Clement’s arguments were more persuasive, New York University professor Stephen Gillers said. “He told the court to see the forest and stop looking at the trees that the government has put in the way,” he said. “All the government could say in reply was that the court lacked jurisdiction.”

The arguments were part of a review by a panel of the US Court of Appeals for the DC Circuit of Trump’s orders last year that targeted firms the president said had “weaponized” the legal system. Trump’s orders threatened to restrict lawyers’ access to government buildings, cancel clients’ government contracts, and revoke lawyers’ security clearances.

The appeals panel is expected to rule in coming weeks. Four lower courts have already struck down as unconstitutional the orders against Perkins Coie, Jenner & Block, WilmerHale, and Susman Godfrey.

The best chance for the DOJ to reverse its losing streak is with a dissenting opinion from the one Trump-appointed judge on the panel, Neomi Rao, or a revival of the portion of the White House orders that revoked the firms’ security clearances, James Pearce, a senior counsel at Washington Litigation Group, said in a media briefing after the arguments.

Rao during the arguments questioned whether legal precedent leaves room for the appeals court to resolve the security clearance dispute. Rao “wasn’t quite as favorably inclined toward the law firms, but on the whole, I think, I find it unlikely to think that she would break,” Pearce said.

Two judges appointed by President Obama—Sri Srinivasan and Cornelia Pillard—raised questions about how broadly a president can use authority to restrict security clearances. Could the president, for instance, restrict security access to a group he doesn’t like, they asked, or because of its racial makeup?

Big Picture

Clement asked the judicial panel to focus on what he saw as the overall goal of Trump’s orders. The orders, he said, were part of a vendetta, with no connection to national security concerns.

“They’re essentially projecting a message where people at other firms are going to choose, alright, either have my security clearance or I can sue the Trump administration, but I can’t do both,” he said.

The directives were “shouted from the rooftops, and part of the point of shouting it from the rooftops was to get the Paul Weisses of the world, the Kirkland & Ellises of the world, the Latham & Watkinses of the world, to come and make deals with government and volunteer close to a billion dollars in free legal services,” Clement said.

Nine firms, including Paul Weiss, Latham and Kirkland, reached agreements with Trump for $940 million in free legal services last year to avoid getting hit with orders.

Walter Olson, a senior fellow at the Cato Institute, said after the arguments that he expects the appellate court to rule in favor of the firms and rebuke the administration.

“The case is so important because of the combination of the gravity of what the administration tried to do and the fact that the courts are in waters not well charted,” Olson said. “What is happening now is going to be one of the most important events of the year legally.”

If the Justice Department fails to persuade the three-judge panel, the Trump administration is likely to appeal to the Supreme Court, said Stanford University professor Mark Lemley. But it is unlikely that the high court would take up the case, according to Gillers.

“The EOs were so dramatic, and their damage to lawyer independence so consequential, that this event will become part of the profession’s DNA for decades unless it’s stopped emphatically,” he said.