Justice Defense of Trump Law Firm Orders Seeks Part Win at Least

The Department of Justice’s latest written defense of President Donald Trump’s law firm attacks shows a desire to protect parts of the executive orders even if sections are struck down.

Justice is asking an appellate panel to analyze the five parts of the president’s sanctions against law firms individually rather than as a collective. As the nation’s Commander in Chief, Trump has the Constitutional power to address national security risks and racial discrimination in the legal profession through the levers available to him, DOJ argues.

“The President’s motive to root out racial discrimination and DEI is sincere and widespread, reflected in the multiple executive orders and far-reaching investigations across the legal profession, higher education, and other industries,” Justice’s April 10 brief says. “So too is his desire to address litigation and other misconduct by former government officials and attorneys.”

The Justice Department’s emphasis on the severability of the directives shows a strategy of maximizing the chances of getting Trump a partial win in the White House’s unprecedented standoff with Big Law after several court losses. “There can be no dispute here that the President wants some of the provisions to take effect even if others are enjoined,” DOJ said in the brief.

The law firms targeted in the orders—Perkins Coie, Jenner & Block, WilmerHale, and Susman Godfrey—won injunctions against the orders in part by arguing each component comprises a unified retaliatory agenda evidenced by the orders’ opening section. In response, the department claims the opening section, which lists Trump’s grievances with each firm, is “government speech” that doesn’t direct any agency action and isn’t subject to judicial review.

Executive Power

The Justice filing precedes oral arguments at the US Court of Appeals for the DC Circuit on May 14.

The president’s ability to monitor access to classified information, by DOJ’s argument, is not reviewable by courts. “The Constitution singularly vests responsibility over clearance determinations in the President as Commander in Chief,” according to Justice.

The directives also ask agencies to scrutinize government contracts held by the firms and their clients for possible cancellation and to block firm lawyers from entering government buildings and being hired by agencies. Because these parts of the orders “contemplate future agency actions,” the firms’ challenges to them and the courts’ decisions to kill them are premature, the DOJ brief argues.

“Had the district courts not prematurely enjoined those sections, additional developments could have clearly illustrated their lawful applications,” Justice said in its brief.

“Awaiting that process would have allowed agencies to consider the real-world applications at play, rather than having litigants and district courts debate various hypotheticals,” the brief later said.

Speech, Not Retaliation

The law firms refer to the first section of each order like a smoking gun, claiming they manifest the president’s intentions to retaliate against the firms for their representation of clients and ties to lawyers who have opposed Trump—which are protected by the First Amendment.

Trump singled out the firms for connections to the late Robert Mueller, who investigated Russian interference in the 2016 presidential election as Special Counsel, or other causes and figures who have opposed him. To DOJ, the first sections are a “textbook example of government speech,” which should be afforded judicial restraint.

“Put differently, even purportedly retaliatory government speech is still speech that is not subject to judicial review,” DOJ said in its brief.

Justice is fighting against parts of the district court rulings that prevent government action based on these opening statements. Three of the district court judges ruled against future actions motivated by these descriptions, while Jenner’s judge declined to do so.

DOJ sought to counter the argument of retaliation by stating the motives outlined by Trump were genuine. The First Amendment doesn’t protect law firms from government efforts to tamp down on discriminatory hiring or “litigation misconduct.”

The filing is the Trump administration’s last chance to brief the US Court of Appeals for the DC Circuit before squaring off with the four law firms’ outside counsel at oral arguments on May 14.

The Trump administration is represented by Deputy Associate Attorney General Abhishek Kambli. Perkins Coie is represented by Williams & Connolly, while the other three are represented by former solicitors general and their colleagues at Cooley LLP, Clement & Murphy, and Munger Tolles & Olson.

The case is: Perkins Coie LLP v. DOJ, et al, D.C., 25-5241, 4/10/26