A Win for Perkins Coie

Last Friday, U.S. District Court Judge Beryl Howell granted summary judgment for Perkins Coie and a permanent injunction against the enforcement of Executive Order 14230, absurdly titled “Addressing Risks from Perkins Coie LLP.” Legal news outlets, including Law360, reported Judge Howell’s opening allusion to the frequently misunderstood line, “The first thing we do, let’s kill all the lawyers,” from Shakespeare’s Henry VI, Part 2. Judge Howell rightly observes that the line was uttered by Dick the Butcher, one of the followers of rebel leader Jack Cade, on the verge of invading London. On her reading, Dick’s threat to kill all the lawyers signifies his awareness that “[e]liminating lawyers as the guardians of the rule of law removes a major impediment to the path to more power.” Dick’s line supports other interpretations - see, e.g., Daniel J. Kornstein, Kill All the Lawyers? Shakespeare’s Legal Appeal (Princeton University Press 1994), pp. 25-33 – but it strikes me as highly significant that Judge Howell begins her summary judgment opinion with a contrast between violence in the pursuit of power and the lawful exercise of power, which is the essence of the rule of law.

Judge Howell goes on to say a few more things about the importance of lawyers to the rule of law, including a quote from Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 545 (2001), that has been in almost all of the briefs by law firms in the EO litigation: “[A]n informed, independent judiciary presupposes an informed, independent bar.” However, most of the remainder of Judge Howell’s opinion is best understood not as a “professionalism” story or “rule of law” story, but as a First Amendment story. Granted, it’s a good story, but perhaps not the one the legal profession was looking for. I don’t mean this as a criticism of the opinion on its own terms. It’s a very good First Amendment decision. But contrary to the way much of the press has reported on the ruling, it is only indirectly about the role lawyers play in upholding the rule of law. Again, this is in no way a criticism. One of the themes of Gerald Postema’s excellent book on the rule of law is that the ideal of constraining the arbitrary exercise of power is something that requires institutional realization. The “institutions, practices, dispositions, and expectations in a particular political community” (p. 114) that sustain the rule of law are not limited to an independent judiciary and legal profession. They can include co-equal branches of government and separation of powers, a thriving free press, freedom to organize and petition the government, civil society institutions like universities and professional associations, NGO’s, active citizen participation in local government and public affairs, and mechanisms of protest such as demonstrations and boycotts.

In a recent op-ed in the New York Times [gift link], three scholars of authoritarianism propose a metric for how the United States doing as a democracy: How costly is it to oppose the government? On this analysis, law firms are lumped together with other civil society institutions, like the press and universities, and the answer is equivocal – some firms have fought back, but in other ways the administration’s strategy is working:

In the wake of Mr. Trump’s attacks on leading law firms, opponents of the administration are struggling to find legal representation, as deep-pocketed and reputable firms that once readily engaged in legal battles with the government are lying low to avoid his wrath.

The same can be said for universities and media organizations. Some are doing okay but, as Trump said with reference to Columbia University, “You see what we’re doing with the colleges, and they’re all bending and saying, ‘Sir, thank you very much.’”

In other words, the Perkins EO summary judgment decision stands for the proposition that speech critical of the government is of the highest constitutional significance. One mechanism for criticizing the government is representing clients in litigation. To the extent the legal profession is valuable in a constitutional democracy, it is instrumentally valuable, relative to the First Amendment’s protection against government retaliation for speech it disagrees with. The essence of the wrongfulness of the EO’s, therefore, is as retaliation for protected speech, not as anything specific to the right to counsel or anything else that is particular to the legal profession. There is some reference to the right to counsel, but it comes late in the opinion and without much emphasis. The Fifth and Sixth Amendment right to counsel is mostly implicated by the government’s bar on access by Perkins lawyers to federal buildings (slip op. pp. 88-89) and there is only a brief discussion of the impact of the EO’s on ethical representation of clients (p. 86). The bulk of the summary judgment decision turns on the distinction between government speech and retaliation for taking a position with which the government disagrees.

Government Speech and Viewpoint Discrimination

Velazquez is an interesting case in this context, because it dealt with government funding, via the Legal Services Corporation, for local organizations providing financial support for people unable to afford legal assistance in civil matters. The Supreme Court in Velazquez held that LSC funding could not be denied to grant recipients seeking to challenge federal or state welfare laws. It distinguished Rust v. Sullivan, 500 U. S. 173 (1991), which had held that the government may subsidize family-planning clinics as long as they did not promote abortion as a method of family planning. The Court in Rust held that this selective funding was not impermissibly viewpoint discriminatory, because the funding was a way for the government to deliver its own message to promote its favored policy objectives. The distinction emphasized by the Velazquez Court was that the relevant speakers were not government actors:

The lawyer is not the government's speaker. The attorney defending the decision to deny benefits will deliver the government's message in the litigation. The LSC lawyer, however, speaks on the behalf of his or her private, indigent client.

Velazquez, 531 U.S. at 542. However, there is still a public purpose for the funding: The government is seeking to facilitate litigation for the purpose of presenting arguments to courts so that they can perform their function of saying what the law is:

[A]ttorneys should present all the reasonable and well-grounded arguments necessary for proper resolution of the case. By seeking to prohibit the analysis of certain legal issues and to truncate presentation to the courts, the enactment under review prohibits speech and expression upon which courts must depend for the proper exercise of the judicial power.

Velazquez, 531 U.S. at 545.

The government’s position in the EO litigation was based substantially on spending power and the government itself being the speaker, free to state its own position on controversial policy issues. Judge Howell said this framing was a subterfuge (slip op., p. 35). More on that below, in the discussion of the role of pretext in the court’s analysis. For First Amendment purposes, however, there is a big difference between the government advancing its own position (ordinarily okay) and the government using its power to suppress positions it disfavors:

[T]he government may not “use the power of the State to punish or suppress disfavored expression,” nor use threats of “‘legal sanctions and other means of coercion . . . to achieve the suppression’ of disfavored speech.”

Perkins order, slip op. at 53. The quotes here are from National Rifle Association v. Vullo, 144 S. Ct. 1316 (2024), which is really the star of the show. In that case, the head of a New York State agency that regulated insurance companies decided to put pressure on companies that had marketed “affinity” or co-branded insurance policies with the NRA, such as those paying defense costs and liability for firearms-related personal injury actions. She investigated the insurers and found that, in some cases, they had committed violations of state insurance law. After the Parkland mass shooting, the agency head decided to really put the screws to the insurers. She offered a deal: If the insurers stopped doing business with the NRA, she’d ignore the insurance-law violations. Vullo, 144 S. Ct. at 1323-24. At the same time, the agency head and then-Governor Andrew Cuomo issued a joint press release urging all insurance companies and banks doing business in New York to reconsider their relationship with the NRA. Cuomo tweeted: ‘‘The NRA is an extremist organization. I urge companies in New York State to revisit any ties they have to the NRA and consider their reputations, and responsibility to the public” (Vullo, 144 S. Ct. at 1324).

Sound familiar? This is, of course, exactly what the Trump Administration is doing to law firms doing business with clients it objected to. The only difference is the ideological valence: Political leaders in New York wanted to punish an organization that, in their view, took uncompromising positions and engaged in tactics that made reasonable firearms regulations politically impossible. Trump, on the other side, is seeking to hobble legal opposition to his policies regarding immigration, transgender rights, and election regulation. It looks like the Trump Administration simply borrowed the playbook Andrew Cuomo used against the NRA and applied it to law firms.

Except they overlooked one thing, which is the 9-0 Supreme Court decision holding that you can’t do that. Cuomo and Vullo, the financial services agency head, tried to claim they were merely engaging in their own speech, seeking to stigmatize the NRA for its anti-gun-control positions. The Second Circuit actually bought this argument, holding that the guidance letters and accompanying press releases were not unconstitutionally coercive because they ‘‘were written in an even-handed, nonthreatening tone and employed words intended to persuade rather than intimidate” (Vullo, 144 S. Ct. at 1325). To which Justice Sotomayor responded, if that’s “mere speech,” then I’m an astronaut. No, she didn’t actually say that, but her opinion for the unanimous Court said there is a difference between permissible attempts to persuade and impermissible attempts to coerce; the First Amendment prohibits government officials from threatening legal sanctions to achieve the suppression of speech it disfavors; and that the government cannot do indirectly what it is prohibited from doing directly (144 S. Ct. at 1326-28). In context, the agency head’s communications with the insurance companies can reasonably be understood as a threat:

Vullo allegedly coerced Lloyd’s by saying she would ignore unrelated infractions and focus her enforcement efforts on NRA-related business alone, if Lloyd’s ceased underwriting NRA policies and disassociated from gun-promotion groups.

144 S. Ct. at 1329. In response the insurer, Lloyd’s, promptly agreed “to cease underwriting firearm-related policies and would scale back its NRA-related business.”

Again, sound familiar? This is exactly what the settling law firms, starting with Paul Weiss, did in response to Trump’s threats. Maybe they did not explicitly agree not to represent clients or promote causes the administration dislikes (although nothing in writing memorializing any agreement with the administration has yet been disclosed), but the firms did agree to devote tens of millions of dollars’ worth of legal services to causes mutually agreed upon between the firm and the administration. Reuters and Bloomberg, among other media outlets, reported that an executive order directed Attorney General Pam Bondi to obtain legal services from these firms to defend police brutality cases (or, as the order puts it, to “provide legal resources and indemnification to law enforcement officers who unjustly incur expenses and liabilities for actions taken during the performance of their official duties to enforce the law”). The New York Times also reported [gift link] that major law firms, including Gibson Dunn and Davis Polk, have shied away from representing immigrants facing deportation:

Lawyers from Gibson Dunn explained that it was afraid of incurring Mr. Trump’s wrath if the firm was associated publicly with a lawsuit that sought to restore legal representation for unaccompanied immigrant children . . ..

Following Vullo, Judge Howell concluded that the Trump administration was not merely expressing its own viewpoint, but was retaliating against Perkins Coie for two different viewpoints expressed by the firm: (1) “its association with, and advocacy on behalf of, the President’s political opponents in the 2016 and 2020 elections” and (2) its statements in favor of diversity, equity, and inclusion (slip op., p. 54). As a normative legal ethics theorist, I’m particularly interested in (1), because the traditional view is that a lawyer does not adopt or endorse the viewpoint of its clients. Thus, while litigation is indeed a form of political expression entitled to First Amendment protection (see slip op., p. 55, citing NAACP v. Button, 371 U.S. 415 (1963)), the relevant rights-holder would be the client, not the law firm. (See slip op. p. 88: “[T]he First Amendment’s free speech and association protections safeguard a client’s rights to hire and consult with an attorney . . ..”) Indeed, Model Rule 1.2(b) warns against conflating the client’s views with the lawyer’s:

A lawyer’s representation of a client . . . does not constitute an endorsement of the client’s political, economic, social or moral view or activities.

For the purpose of the First Amendment analysis, it is probably sufficient to observe that the Trump administration attributed the firm’s client’s political views and activities to the firm, but I think those of us working in the theoretical vineyards have something to think about in connection with this defense of the firms against the EO’s.

Subterfuge and Pretext

One of the noteworthy features of the litigation over the law firm EO’s has been the use by the parties and courts of extrajudicial statements by President Trump and his advisors that undercut the facially legitimate bases for the exercise of government power that are cited in the government’s briefing. The result of Trump’s constant boasting and trash-talking is that courts generally may be more receptive to arguments that the government’s stated rationales for actions are purely pretextual. As Quinta Jurecic puts it in an excellent article on Lawfare:

During the first months of the first Trump administration, judges weighing the legality of the travel ban had to ask themselves what to do about an executive order that appeared facially lawful but that was obviously motivated in fact by malice. Today, there’s less of a need to investigate pretext, because the extreme and aberrant nature of what Trump is attempting is right there on the surface—and in many cases, the administration is outright gloating over that abuse of power. This is the difference between an administration that leveraged the Justice Department’s Office of Legal Counsel (OLC) to cobble together arguments for poorly-thought-through and malicious policies, and an administration that is reportedly ignoring OLC altogether in favor of just doing whatever it wants.

Judge Howell’s opinion notes that Perkins provided copies of approximately twenty statements by President Trump referencing the firm’s work for his political opponents (slip op., pp. 10-14). These statements include a specific mention of Perkins in a Truth Social post:

They paid their law firm, Perkins Coie, which retained the research firm Fusion GPS and its contractor, former British spy Christopher Steele, to generate the farcical Steele dossier that was shared with the FBI, the State Department, and the media to smear Trump as a clandestine agent of the Kremlin.

These statements completely undercut the government’s claims that it is merely using its procurement power to avoid funding messages with which it disagrees (which, as I discussed in my last post, is the major theme of the government’s briefing in the EO proceedings). To believe that explanation, Judge Howell says, requires ignoring the entire factual context for the issuance of the EO (slip op., p. 51). “President Trump’s repeated prior statements about plaintiff and lawyers formerly associated with the Firm provide probative context that informs assessment of the retaliatory purpose of the Order as a whole” (slip op., p. 73). It is therefore undisputed – an issue on which the court can grant summary judgment – that the EO was issued in retaliation for First Amendment protected activity.

One final point of note, related to the analysis of purpose and pretext: Judge Howell used the actions taken by the administration against other law firms as part of the context informing the First Amendment retaliation analysis. The Jenner and Wilmer EO’s support the contention of Perkins Coie that President Trump is “using the power of the presidency to target individual lawyers and law firms associated with them based on personal dislike of their legal work—in other words, for retribution” (slip op., p. 77). On the other side, to support the element of a First Amendment retaliation claim that the actions of the government were “sufficient to deter a person of ordinary firmness in plaintiff’s position from speaking again,” Judge Howell cites the example of Paul Weiss, which “quickly negotiated a deal,” including providing $40 million worth of legal services to the administration, rather than face the injuries imposed by the EO (slip op, p. 60). The sight of other firms rushing to make their own deals led to Trump boasting to his domestic policy advisor Steven Miller about the success of his shakedown strategy:

President Trump used the occasion [of the issuance of an EO against Susman Godfrey] to recount that the administration had “signed with many law firms, the ones that we thought were inappropriate,” and stated that “they went for some pretty big numbers.” President Trump then asked Deputy White House Chief of Staff Steven Miller, “what’s the total right now Steve?” and Miller responded, “getting to close to, probably, six, 700 million now I would think. Multiple at 100 million, some at 125 million. So, the numbers are adding up. We’re going to be close to a billion soon.”

(Slip op., p. 62.) While the government claims it is merely acting on what it believes to be the public interest (in its view, rolling back law firm DEI programs), Trump can’t help himself from making public statements that show what is really going on. It is simultaneously a fulfillment of his campaign promise, “I am your warrior, I am your justice, and for those who have been wronged and betrayed, I am your retribution. I am your retribution,” (slip op., p. 13), a way of demonstrating dominance and humiliating powerful actors in civil society, and a nifty way to fund legal actions in support of his agenda.

As clear as it was that something was wrong with the law firm EO’s, at the level of legal doctrine it is harder than it might seem at first to figure out exactly what was wrong, given the government’s procurement power and speech rights, the theoretical separation of law firms from their clients’ views and objectives, and the lack of any constitutional right to counsel in civil litigation and transactional representation. Judge Howell’s order is a powerful demonstration of the administration’s clearly expressed intention to retaliate against critics and political opponents. The constitutional principle it relies on is the great First Amendment anti-orthodoxy principle from West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943):

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.

NRA v. Vullo is a recent, unanimous Supreme Court decision reaffirming this principle. It will be interesting to see whether the decision in the remaining 3 EO matters (Jenner, Wilmer, and Susman) similarly rely on the First Amendment or go in a different direction, perhaps building more on the Fifth and Sixth Amendment right to counsel. Either way, we are getting some clarity about what exactly is wrong with the EO’s targeted at law firms.