"Give Me a Break!"

The Government's Arguments in Support of the Law Firm EO's

An article in Law360 reported on the hearing in district court in D.C. on two opposing motions: DOJ’s motion to dismiss Jenner & Block’s action seeking a permanent injunction and the firm’s motion for summary judgment; both pertain to President’s Trump’s Executive Order purporting to address risks to national security and other “critical American interests” posed by the firm’s pro bono practice and diversity efforts. At the hearing, DOJ lawyer Richard Lawson contended that there were several legitimate government interests supporting the EO, to which at one point the judge responded “give me a break!”

Other hearings on the crossing motions to dismiss and motions for summary judgment have prompted similar judicial reactions. In the WilmerHale matter, District Judge Richard Leon was skeptical of the government’s argument that the EO was not punitive and retaliatory. In the hearing on the Perkins Coie EO, Judge Beryl Howell compared the targeting of law firms representing Trump’s political opponents to McCarthyism and the Red Scare of the 1940’s and 50’s. The lawyer representing the government tried to argue that the EO’s were merely an expression of Trump’s viewpoints and within the power of the executive to respond to national security concerns. In response, Judge Howell doubted this was the true purpose of the EO’s: “’The purpose was not to force Perkins to its knees?’. Howell asked.”

Media coverage of these hearings has tended to highlight the expressions of skepticism or outrage by the judges considering challenges to the EO’s. That’s understandable – it makes a good story. It’s also true that in substance the President’s actions are outrageous. But it is hard to tell from the press coverage whether there is any legal foundation at all for the EO’s. If there’s something there, even a little kernel, then what is the relevance of the government’s actual motivation, as revealed in the text of the EO’s themselves, the accompanying fact sheets, and numerous public statements by Trump?

I’m going to be on a panel about the law firm EO’s at the upcoming ABA Section on Professional Responsibility meeting at the end of the month and therefore need to become familiar with the government’s side as well as the law firms’ arguments. So I did a public service and read the government briefs so my readers don’t have to. There are subtle differences among the briefs in the four pending proceedings, with the later briefs (Wilmer and Susman) relying more on the asserted government interest in combatting racial discrimination, which the briefs simply equate with law firm diversity programs - the government has a conniption about Wilmer adopting the “Mansfield Rule” from a group called Diversity Labs (Wilmer brief, p. 13) and Jenner publicizing its report to Vautl.com that it had set formal, measurable diversity targets (Jenner brief, pp. 9, 11). But the overall structure of the arguments in the briefs is similar enough to consider them together.

To be clear, I think the arguments ultimately fail, and I also agree with the sentiment expressed by the district judges – the President’s actions are retaliatory, punitive, targeted at political enemies, and an assault on the rule of law, For the sake of fairness, however, I wanted to give the most sympathetic account I could of the government’s position. So here goes . . .

Government as Sovereign vs. Contractor or Speaker

The government attempts to defend the EO’s as instances as the government acting in its non-sovereign capacity. It claims not to be punishing the law firms for conduct it disapproves of, such as seeking to foster a diverse and inclusive workplace, but simply expressing that disapproval. In First Amendment law that distinction was recognized in Waters v. Churchill, 511 U.S. 661 (1994). Here is the argument from the Jenner brief (p. 4):

“Like other governmental entities, the Executive Branch has the right to “speak for itself.” Bd. of Regents of Univ. of Wis. System v. Southworth, 529 U.S. 217, 229 (2000). “When a government entity embarks on a course of action, it necessarily takes a particular viewpoint and rejects others.” Matal v. Tam, 582 U.S. 218, 234 (2017).”

Of course, the government is doing more than expressing disapproval; it is refusing to do business with law firms whose activities it disapproves of. From p. 20 in the Jenner brief:

“Amid all the furor generated in the press and elsewhere, it is important to recognize the EO for what it is and what it is not. What it is not is the Executive Branch of the Federal Government acting in its capacity as sovereign to punish citizens for exercising their First Amendment Rights. What it is is the Executive Branch acting as contractor and employer, managing who it does business with and how, based on what it believes to be in the public interest.”

If you accept the premise that the government is trying to use the spending power to bring private industry actors into compliance with its own vision of racial justice, based on its reading of the Supreme Court’s SFFA decision, then it has precedent to draw from, in the form of the practices of previous administrations. The Obama and Biden Administrations used government contracting as a way to advance social policy goals. For example, President Obama issued an executive order (No. 13658) requiring that any government contractor pay a minimum wage of $10.10, which at the time was higher than the federally mandated minimum wage (subsequently increased to $15 by a Biden EO). Or consider Obama EO 11246, which required government contractors to adopt affirmative action plans. Similarly, the Biden Administration adopted a series of EO’s directing federal agencies to adopt equity action plans, including government procurement and contracting activities.

The thrust of the government’s argument in the law firm EO’s is, essentially, how are these orders, issued in response to what this President believes to be unlawful racial discrimination, not exactly like the Obama and Biden EO’s, only with different social policy goals? Again citing Waters v. Churchill, 511 U.S. 661, 675 (1994) (out of context, because Waters is really a speech case), the DOJ’s government-as-contractor argument goes something like this: Even if you disagree with our understanding of the impact of the SFFA case on private-sector DEI programs, the executive as purchaser of goods and services gets to make its own call, and say “we don’t like DEI programs – regardless of their legal permissibility – so we’re not going to purchase goods or services from entities that have them.” What’s wrong with that?

There are a couple of obvious responses to this argument. One is that the reasons given in support of the EO’s are not the real reasons for issuing them – the pretext argument considered next. Another argument is structural: The main threat of the EO’s is not to the law firms’ ability to contract with the government (i.e. for government agencies to retain the firms as counsel in particular matters); rather, it is a threat that the firms’ clients who have government contractors will lose those contracted because the President disapproves of other clients represented by these firms.

Here's a hypo to illustrate the weirdness of the DOJ’s government contractor argument. The facts are completely made up, but I think it’s plausible. Suppose Goodyear sells tires to the Air Force for use on fighter jets, bombers, and transport aircraft (all of which are hell on tires, so this is a good gig). Goodyear uses Jenner & Block for defense work in products liability litigation related to its car and truck tires. Goodyear’s competitor, Goodrich, is eager to take over the contract to supply tires to the Air Force. Goodyear comes to the firm and says it is nervous about losing the Air Force contract. The government’s response is that it disagrees with Jenner’s DEI programs and will henceforth choose to engage in business only with private entities that do not engage in what it regards as prohibited racial discrimination.

The DOJ asserts that federal contracting decisions are “fully applicable downstream to a contractor’s subcontracts or client pursuant to 41 CFR § 60-1.4(b).” But Jenner is not a subcontractor of Goodyear in any sense, and certainly not with respect to the contract to supply tires to the Air Force. I am anything but an expert on government contracting law, but I do not believe Jenner would be a subcontractor of Goodyear even if it had been retained to represent it with respect to the Air Force contract. Yes, a lawyer-client relationship is contractual, but that contract is not subordinated to the Goodyear-government contract, but is wholly separate.

There is some inconsistency between the terms of the EO’s and the government’s defense of them. It was very clear from the complaint and supporting evidence filed by Perkins Coie that the firm was hearing from clients who feared losing their government contracts even if Perkins had no involvement in negotiating or administering those contacts or providing any other legal services with respect to them. In the Jenner briefing, however, the DOJ tried to argue that the government would take action only with respect to contracts for which the firm was retained to provide services. That is certainly not the only plausible reading of the Jenner EO:

(b) The heads of agencies shall review all contracts with Jenner or with entities that disclose doing business with Jenner under subsection (a) of this section. To the extent permitted by law, the heads of agencies shall:»

(i) take appropriate steps to terminate any contract, to the maximum extent permitted by applicable law, including the Federal Acquisition Regulation, for which Jenner has been hired to perform any service; and

(ii) otherwise align their agency funding decisions with the interests of the citizens of the United States; with the goals and priorities of my Administration as expressed in executive actions, especially Executive Order 14147 of January 20, 2025 (Ending the Weaponization of the Federal Government); and as heads of agencies deem appropriate. Within 30 days of the date of this order, agencies shall submit to the Director of the Office of Management and Budget an assessment of contracts with Jenner or with entities that do business with Jenner effective as of the date of this order and any actions taken with respect to those contracts in accordance with this order.

The DOJ brief in opposition to the motion to dismiss in the Jenner EO (p. 24) says the EO only directs termination of contracts for which Jenner provides services, which is consistent with the highlighted language in (i), above, but it doesn’t say anything about the broader language in (ii). Earlier in the brief, however (p. 21), the DOJ argues for the broader reading:

“It is reasonable to consider a contractor’s performance subpar when they retain the services of a law firm that has proudly engaged (and appears to continue to engage) in racial discrimination.”

No matter how well Goodyear’ tires perform on Air Force jets, the company is in risk of having its performance deemed subpart because it retained a law firm that is trying to diversify its workforce. I believe the technical term for that is banana-pants. Now, it could be that the government is willing to accept a narrowing construction to bring the EO more securely within the spending power of the executive, but given the pattern of conduct more generally in these law firm EO’s, it could also be an argument offered in bad faith.

Which brings us to the issue of pretext, or what is really going on here.

Pretext in Administrative Law

In addition to the spending power argument, the DOJ relies heavily on a line of cases establishing that the executive has all-but-unreviewable discretion to take action in response to what it perceives as national security concerns. This is why the EO’s include provisions stripping security clearances of firm lawyers and restricting access to federal buildings. The government claims these are justified on national security grounds.

All of the district court judges to have considered these EO’s have called bullshit on this argument. There is abundant evidence that the EO’s were not actually motivated by national security concerns. Some of this evidence comes from the EO’s themselves, which recite the firms’ offenses:

• Jenner engages in obvious partisan representations to achieve political ends, supports attacks against women and children based on a refusal to accept the biological reality of sex, and backs the obstruction of efforts to prevent illegal aliens from committing horrific crimes and trafficking deadly drugs within our borders. Moreover, Jenner discriminates against its employees based on race and other categories prohibited by civil rights laws, including through the use of race-based “targets.”

• WilmerHale engages in obvious partisan representations to achieve political ends, supports efforts to discriminate on the basis of race, backs the obstruction of efforts to prevent illegal aliens from committing horrific crimes and trafficking deadly drugs within our borders, and furthers the degradation of the quality of American elections, including by supporting efforts designed to enable noncitizens to vote. Moreover, WilmerHale itself discriminates against its employees based on race and other categories prohibited by civil rights laws, including through the use of race-based “targets.”

Further evidence comes from the course of dealing between the Trump Administration and the firms that cut deals to revoke or avoid the imposition of an EO. On the Lawfare site, Roger Parloff provided detailed notes of the hearing before Judge Howell on the Perkins EO. Judge Howell noted that the President revoked the EO against Paul Weiss after the firm agreed to provide $40 million in pro bono services to the President’s preferred causes. However, while the EO purported to address national security considerations, there did not appear to be any process for assessing the firm’s national security risks as part of the revocation of the EO:

When Paul Weiss agreed to give $40 million in services to the president “during my term,” she continues, the original order was lifted. Were there any identifiable national security reasons that would warrant lifting security clearance review for Paul Weiss? . . . Forty million dollars was enough to have the president trust Paul Weiss again, says Howell.

There were some interesting developments in administrative law during the first Trump Administration regarding the authority of courts to look behind a proffered, permissible, rationale for agency action and find a “real” but impermissible reasons. Strictly speaking, these decisions do not apply to a court’s consideration of the law firm EO’s. The Supreme Court has held that the Administrative Procedure Act (APA) does not apply to executive orders. Franklin v Massachusetts, 505 US 788 (1992). One of the big topics in recent administrative law scholarship has been the tendency of all presidents since Ronald Reagan to assert more direct influence over policymaking by administrative agencies. See, e.g., Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245 (2001). This complicates the usual “hard look” review under State Farm to the extent one believes the president permissibly – for reasons of democratic accountability – may make administrative rulemaking part of his policy and political agenda.

An agency head must ordinarily be prepared to “articulate a satisfactory explanation for his decision, including a rational connection between facts found and choices made.” Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29, 43 (1983). But the “presidential administration” idea complicates the analysis of reasoned decisionmaking, if the president can permissibly rely on his own policy preferences and political judgments. There are limits, however. In the case of agency decisionmaking, an interpretation of a statute may far too far outside the range of plausible interpretations to count as an instance of a discretionary policy judgment. Again, hard-look review under the APA does not apply to executive orders, but an episode from the first Trump Administration may be a template for the courts dealing with the recent round of law firm EO’s.

Department of Commerce v. New York, 139 S. Ct. 2551 (2019), arose out of efforts by the Trump Administration to add a question about citizenship to the decennial census form. The Secretary of Commerce, Wilbur Ross, stated that he had decided to add the citizenship question at the request of the Justice Department, to enhance its ability to enforce the Voting Rights Act. There was considerable reason to doubt the veracity of this explanation. The real reason was likely that including a citizenship question would deter members of marginalized communities, who as it happens tend to vote Democratic, from filling out the Census form, leading to an undercount of Democratic voters.

In general, courts are extremely reluctant to inquire into the “real” motives for an action. For one thing, the inquiry would either involve pure speculation and attempts to psychoanalyze decisionmakers, or else extensive discovery, such as depositions, of agency officials. Anyway, motives are often mixed, and so what? Maybe the Secretary had good and bad reasons for his decision, but if the good reasons are sufficient, courts should not be in the business of trying to police bad reasons. (There’s something like that argument in the government’s briefs in the law firm EO litigation, citing McGowan v. Maryland, 366 U.S. 420, 426 (1961), which upheld a state Sunday-closing law even though one purpose may be to promote religion).

Chief Justice Roberts summarized the state of the law on the analysis of an agency’s stated reasons as pretextual (citations removed and text cleaned up):

[A] court may not reject an agency's stated reasons for acting simply because the agency might also have had other unstated reasons. Relatedly, a court may not set aside an agency's policymaking decision solely because it might have been influenced by political considerations or prompted by an Administration's priorities. [That’s the “presidential administration” point alluded to above.] Agency policymaking is not a “rarified technocratic process, unaffected by political considerations or the presence of Presidential power.” Such decisions are routinely informed by unstated considerations of politics, the legislative process, public relations, interest group relations, foreign relations, and national security concerns (among others).

Finally, we have recognized a narrow exception to the general rule against inquiring into “the mental processes of administrative decisionmakers.” On a “strong showing of bad faith or improper behavior,” such an inquiry may be warranted and may justify extra-record discovery.

Remarkably, however, and to the consternation of Justices Thomas, Gorsuch, and Kavanagh, the Chief Justice concluded that there were reasons to doubt that Secretary Ross was acting in good faith when he cited Voting Rights Act enforcement as the reason for adding the citizenship question:

Altogether, the evidence tells a story that does not match the explanation the Secretary gave for his decision. In the Secretary's telling, Commerce was simply acting on a routine data request from another agency. Yet the materials before us indicate that Commerce went to great lengths to elicit the request from DOJ (or any other willing agency). And unlike a typical case in which an agency may have both stated and unstated reasons for a decision, here the VRA enforcement rationale—the sole stated reason—seems to have been contrived. . . .

[W]e cannot ignore the disconnect between the decision made and the explanation given. Our review is deferential, but we are “not required to exhibit a naiveté from which ordinary citizens are free.” United States v. Stanchich, 550 F.2d 1294, 1300 (CA2 1977) (Friendly, J.). The reasoned explanation requirement of administrative law, after all, is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public. Accepting contrived reasons would defeat the purpose of the enterprise. If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case.

Again, review of EO’s is not the same as judicial review of agency action. But I left in the quote from Judge Henry Friendly in the above passage, because it seems to be what is behind the judges’ reactions to the law firm EO’s. No one believes judges should “exhibit a naiveté from which ordinary citizens are free.” Or, in the words of a less exalted but perhaps better known judge, don’t pee on my foot and tell me it’s raining.

It's true that the assertion of national security interests by the government tends to receive considerable deference from courts. As Judge Howell’s reaction to the Perkins EO shows, however, there is no reason that a court could not regard the national security grounds as nakedly pretextual in this case. That is particularly true in light of the administration’s course of dealing with the other firms. The President seemed quite content to receive a pledge of tens of millions of dollars in free legal assistance, without directing any kind of review of the firms to ensure that they were not presenting threats to national security.

* * *

These are the government’s best arguments. The government’s worst arguments – which the briefs barely address – is that the EO’s are not unconstitutional under the First Amendment as retaliation for engaging in constitutionally protected activities like speaking and petitioning the government for the redress of grievances. As the Wilmer brief puts it (p. 14), the order violates the First Amendment several times over. But those arguments have gotten a lot of press. I wanted to see if I could present the strongest cases for the government’s position and show how even that case is not particularly persuasive.

There is something kind of hopeful about this, for those of us who believe the second Trump Administration represents a genuine threat to the rule of law. The hopeful bit is that Trump may be a wannabe authoritarian, but he is lousy at it. (There was a good piece on this theme in Vox a couple of days ago.) He lacks the patience, tactical skill, discipline, and self-control to execute the authoritarian playbook as developed by Orban, Erdogan, and others he admires. If he had only toned down the language of the EO’s and not been so obvious about shaking down Skadden, Kirkland, Latham, and the other firms, there would have been less for courts to go on in finding the government’s reasons pretextual. But Trump can’t help himself, he’s fundamentally a showman and not a strategist, and it’s always a short-term dominance game for him - there’s no long-run strategy to gradually take over civil society institutions like the press and law firms. For that we can be thankful.