Law Firm Executive Orders: Endgame
It took me a while to get around to writing about it, what with the Fourth of July holiday and all, but the Susman Godfrey summary judgment opinion came out and it was a complete victory for the firm. The opinion, by U.S. District Judge Loren AliKhan, was not as fiery as some of the others (and certainly used fewer exclamation points than Judge Leon’s opinion in the Wilmer matter), but it was no less decisive in its reasoning. For those of you keeping score at home, this is now law firms 4, Trump Administration 0. The numbers don’t tell the whole story, though. What is remarkably is that the district courts who have addressed the Administration’s executive orders have ruled against the government on multiple, independent grounds.
The government has nevertheless filed a notice of appeal in the Perkins Coie matter. Having said very publicly that I thought the government knew all along that the EO’s were bullshit but were just hoping to intimidate firms into avoiding representing political adversaries, I must say I’m a bit puzzled by the strategy of appealing. If Trump, Stephen Miller, et al., wanted to continue holding the proverbial sword of Damocles over the heads of law firms, they would presumably want to avoid establishing circuit-level precedent clearly stating that, no, you can’t do that. Even a solid wall of district court decision does not constitute binding precedent for another district court, even in the D.D.C. As the Supreme Court said, citing Moore’s Federal Practice,
[a] decision of a federal district court judge is not binding precedent in either a different judicial district, the same judicial district, or even upon the same judge in a different case.
Camreta v. Greene, 563 U.S. 692, 709 n.7 (2011) (quoting 8 J. Moore et al., Moore's Federal Practice § 134.02[1] [d], p. 134–26 (3d ed. 2011)). This matters to whether a government lawyer would risk professional discipline for appearing in court to defend an EO. I’ve written about the ethics of drafting unenforceable EOs, and reluctantly concluded that a legal position might not be frivolous even if it had been rejected by several other courts at the same level of the judicial hierarchy. A D.C. Circuit precedent would be a different matter, however. Unless the EO was somehow drafted to avoid all of the constitutional deficiencies cited in the (hypothetical) D.C. Circuit decision, a government lawyer may have no non-frivolous legal position to assert in defense of the order.
So what’s behind the decision to appeal? I have no idea. Maybe the TACO (Trump Always Chickens Out) thing got under Trump’s skin. Maybe he, and by extension his Administration, simply has no playbook other than always attack, never back down. Or maybe the lawyers working on these cases have fallen prey to a not-uncommon tendency to see their arguments as stronger than they really are. After being immersed in researching, writing, and arguing a matter, it can be hard to take a step back and be objective about it. Maybe I’m the one who’s too close to the arguments and can’t see things dispassionately anymore, but I don’t see a decent appellate issue here, let alone one likely to convince a panel of the D.C. Circuit.
What Have We Learned from the Four Opinions?
Until we have a decision on the appeal of the Perkins EO (and presumably the other decisions will be appealed as well), which will be a while, the fourth and final summary judgment opinion enjoining these punitive EOs provides an opportunity to take stock of the whole sorry episode from a legal perspective. There are many angles one could pursue, but something that particularly interests me is the takeaway regarding the constitutional status of the legal profession. When the Perkins Coie order was issued, there were many statements like this from bar associations and other groups:
The legal profession is of constitutional significance. The right to counsel is fundamental, and the judiciary as a coequal branch of government is charged with peacefully resolving disputes that inevitably arise in a vast and complex nation. Undermining the legal profession undermines democracy. (National Asian Pacific American Bar Association.)
Our justice system is premised on the principle that all individuals and entities – regardless of their political, social, or economic standing – are entitled to representation. This foundational principle is not a privilege granted at the discretion of those in power; it is a cornerstone of democracy, enshrined in our Constitution, and protected by our courts. Attempts to intimidate or penalize lawyers for representing clients whose interests do not align with those of the government are antithetical to our democracy, violate the rule of law, chill attorneys from fulfilling their ethical and professional obligations, and undermine our system of justice. (Metropolitan Bar Associations.)
The right of all individuals, regardless of popularity, to obtain a meaningful defense is uniquely American, deeply embedded in our nation’s history, and a cornerstone of our constitution . . .. All individuals, of all political affiliations, are guaranteed access to counsel. If law firms are punished for who they represent, then these rights are effectively dismantled. Discouraging lawyers from taking clients who the government deems unworthy of defense threatens the very foundation of the Sixth Amendment. (National Association of Criminal Defense Lawyers.)
The statements, as well as many arguments in amicus briefs filed in the four proceedings, invoke ideals worth defending: the rule of law, the right to counsel, and the independence of the legal profession. The question is, though, how do they come out on a constitutional analysis? How do ideals like the rule of law and the independence of the legal profession translate into rights that can be asserted by the law firms targeted by the Administration?
After reading the parties’ briefs, amicus briefs, and the four summary judgment orders, the answer seems to be that there is less constitutionally distinctive about the legal profession than one might have believed. The key word here is “distinctive.” Lawyers and law firms do not lack constitutional protection, but the clearest forms of protection are subsets of more general norms such as free speech, freedom of association, due process, and limitations on executive power. The right to counsel is, perhaps surprisingly, underdeveloped outside the context of criminal defense representation. And the idea of the independence of the legal profession mostly shows up as a principle in the separation of legislative and judicial branch power to regulate the profession. Cherished ideals like zealous advocacy, everyone being entitled to counsel, and standing up for unpopular clients (and the endlessly repeated story of John Adams representing British soldiers charged in the wake of the Boston Massacre), are bit players in the drama. Or, if not bit players then incidental beneficiaries of other constitutional rights that are not primarily concerned with the legal profession or the representation of clients.
So, as a rough draft of a more in-depth analysis, here are some of my reactions to the decisions in the four law firm EO cases (with cites to the slip opinion version of the summary judgment opinions in the four cases – Perkins, Jenner, Wilmer, and Susman). I see the four opinions as coalescing around four themes:
(1) First Amendment retaliation is the star of the show.
The Jenner opinion (p. 11) calls this the “most straightforward winner,” and it is the leadoff argument in all four opinions. The framework for establishing unconstitutional retaliation (the Susman opinion does a nice job setting out the elements on p. 25) is in support of the anti-orthodoxy principle – that is, no official can prescribe what is orthodox in politics (Jenner op., p. 1, citing Barnette), or the First Amendment protects the freedom to think as you will and speak as you think (Susman op., p. 24, citing 303 Creative). The best case to clobber the government with on this issue is NRA v. Vullo, because it was a unanimous, recent Supreme Court decision, and because the New York State government officials pretty much did what the Trump Administration did in the EOs, by using ordinary government powers (in Vullo, investigations of violations of insurance law) to punish an entity the government disagreed with on policy grounds. Notably, in Vullo, the insurance companies actually did commit legal violations (144 S. Ct. at 1323), but the Court saw these enforcement actions as “either a threat or . . . an inducement” (144 S. Ct. at 1329) to get insurance companies to stop associating with the firearms industry by writing coverage for gun-related injuries and marketing co-branded insurance policies with the NRA.
The upshot of Vullo is well expressed in the Wilmer opinion (p. 36, citations omitted):
President Trump can “share [his] views freely and criticize particular beliefs, and [he] can do so forcefully in the hopes of persuading others to follow [his] lead.” He cannot, however, “use the power of the State to punish or suppress disfavored expression.” The First Amendment bars the Government “from relying on the ‘threat of invoking legal sanctions and other means of coercion . . . to achieve the suppression’ of disfavored speech.” Yet that is exactly what the Order here does: It both threatens and imposes sanctions and uses other means of coercion to suppress WilmerHale’s representation of disfavored causes and clients.
This is what I mean by the legal profession being, in effect, a beneficiary of broader rights established in other contexts. The representation of unpopular clients, or clients with whom the government disagrees, is treated as just another instance of suppressing disfavored speech. As I wrote previously, this treats law firms as a subset of the constitutional freak show – pornographers (see Bantam Books v. Sullivan), the gun industry, neo-Nazi marchers, the Asian-American rock band with the offensive name (see Matal v. Tam, 582 U.S. 218 (2017)), etc.
I’m kind of okay with this, mostly because I’m very much on board with my late colleague Steve Shiffrin’s love of dissent and mistrust of government power. Steve greatly admired George Anastaplo, who was denied admission to the Illinois bar on character and fitness grounds, for refusing to answer questions about whether he was a member of the Communist Party. Dissenting from the Supreme Court majority’s decision that this denial was not an unwarranted infringement on Anastaplo’s First Amendment rights, Justice Hugo Black wrote:
Too many men are being driven to become government-fearing and time-serving because the Government is being permitted to strike out at those who are fearless enough to think as they please and say what they think. This trend must be halted if we are to keep faith with the Founders of our Nation and pass on to future generations of Americans the great heritage of freedom which they sacrificed so much to leave to us.
I suspect, however, that many lawyers may not appreciate being lumped in with the rabble of dissenters who tend to feature in First Amendment cases. We want to think there is something noble about what lawyers do, not merely something that must be tolerated, however grudgingly, in a free society. From an instrumental point of view it may not matter how we arrive at the conclusion that the activity of representing clients is protected. From the point of view of stating constitutional ideals, however, this seems like a bit of a letdown. We get protection, but only as another dissenting group that others have to put up with and the government can’t target based on its viewpoint.
(2) The right to counsel is derivative of the judiciary’s power, in ways lawyers may not like.
Maybe there is a separate source of protection for the independence of the legal profession, which can be leveraged to resist these EOs. Coming into this litigation, I would have predicted that Legal Services Corp. v. Velazquez, 531 U.S. 533 (2001), would be one of the pivotal cases. And in fact this passage was quoted in three of the four summary judgment opinions:
“An informed, independent judiciary presumes an informed, independent bar.”
531 U.S. at 545 (quoted in Perkins, p. 2; Jenner, p. 18; Wilmer, p. 50).
It’s possible I’m overthinking this, but the language from Velazquez invokes a position that lawyers aren’t always on board with, namely, their role as “officers of the court.” That language is used a lot, and not always with much precision. In one sense it refers to the judiciary’s inherent power to regulate the legal profession. No one doubts that, as a matter of state constitutional law, the highest court of a U.S. jurisdiction has the affirmative authority to regulate admission to practice law in the jurisdiction, prescribe rules of conduct for the regulation of the profession, and administer a grievance and disciplinary system. (See this article by my retired colleague Chuck Wolfram.) Whether the inherent power of the judiciary to regulate the legal profession ousts the power of the other branches – the so-called negative inherent power doctrine – is much more controversial. Judge AliKhan in the Susman summary judgment opinion wades right into that controversy. After citing Velazquez, she says this:
When the President attempts to limit who can present “the analysis of certain legal issues and . . . truncate[s] presentation [of certain issues] to the courts,” he restricts “speech and expression upon which courts must depend for the proper exercise of the judicial power.” Id. For this reason, the power to “‘fashion . . . appropriate sanction[s] for conduct which abuses the judicial process’” is exclusively among the judiciary’s “‘inherent powers,’ not conferred by rule or statute”—and is a power that is not shared with any other branch of government. Goodyear Tire & Rubber Co. v. Haeger, 581 U.S. 101, 107 (2017) (first quoting Chambers v. NASCO, Inc., 501 U.S. 32, 44-45 (1991), then quoting Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962)). Thus, to the extent that the Order sanctions attorneys—particularly in ways that prevent them from appearing in court—it tramples on the province of the judiciary and violates the separation of powers.
(Susman, p. 47.) I left the cites in, because readers who know their way around the law of lawyering, as well as civil litigators who have contended with litigation sanctions, will be familiar with Haeger and Chambers. Those cases state the affirmative inherent power of federal courts to fashion remedies for misconduct by parties or their counsel in a specific litigated matter. They’re not about the authority to regulate the profession more generally, and they’re certainly not negative inherent power cases.
Judge AliKhan’s reading of those cases is pretty aggressive, particularly following as it does the invocation of the Steel Seizure Cases as a limitation on presidential power. The leadoff argument in the very good complaint in the Perkins Coie matter, drafted by Williams & Connally, was that the presidential action was ultra vires as an unconstitutional exercise of judicial authority (Perkins Complaint, pp. 25-28, citing Steel Seizure Cases, Chambers, and Haeger). In the summary judgment opinion, however, Judge Howell declined to consider these arguments (Perkins Order, p. 6 n.5). That made me think she was somewhat wary of the negative inherent power doctrine and, in any event, found the viewpoint discrimination and First Amendment retaliation grounds sufficient as a basis for the permanent injunction.
Somewhat more theoretically, the “officers of the court” language sometimes troubles lawyers because it seems to take something away from the ideal of zealous advocacy. As readers know, that term drives me up a wall, mostly because lawyers tend to leave out the second part, “. . . within the bounds of the law.” As I’ve always seen in, the concept that lawyers are officers of the court should be understood in line with the “. . . within the bounds of the law” language. That is, lawyers should not advocate (zealously or otherwise) merely for client interests, but should understand their duties of loyalty, diligence, and competence in terms of promoting the legal rights of clients. This was the major argument of my 2010 book, and as additional authority I would cite Section 16(1) of the Restatement (Third) of the Law Governing Lawyers (emphasis added):
To the extent consistent with the lawyer’s other legal duties and subject to the other provisions of this Restatement, a lawyer must, in matters within the scope of the representation . . . proceed in a manner reasonably calculated to advance a client’s lawful objectives, as defined by the client after consultation.
I tell my Professional Responsibility students that this is probably the most important provision in the Restatement, because it contains two extremely important principles: (1) the fiduciary benchmark (to quote my teacher and great agency law scholar Deborah DeMott), which is that the client’s instructions define the objectives of the representation; and (2) the limitation on the lawyer’s duties to advance the client’s objectives to those objectives that are “lawful.”
This second principle is another way of unpacking the idea that lawyers are officers of the court. Having made it central to my position in theoretical legal ethics, trust me when I say that lawyers aren’t particularly fond of it. At the risk of overgeneralizing, many lawyers see their role as advocates as zealously seeking to promote their client’s interests or objectives, leaving it to the adversary and to the court to worry about the limits of the law. In the context of litigation that’s mostly okay, provided advocates respect the prohibition on asserting frivolous claims and defenses. But in the counseling, advising, and transactional contexts (which would include drafting these executive orders), lawyers believe the only limitation – the only sense in which they are officers of the court – is given by the prohibition in Model Rule 1.2(d) on knowingly assisting or advising in conduct that is criminal or fraudulent.
But don’t take my word for it. Here is a passage from a mostly forgotten Supreme Court decision, written by Justice Powell:
[T]he duty of the lawyer, subject to his role as an “officer of the court,” is to further the interests of his clients by all lawful means, even when those interests are in conflict with the interests of the United States or of a State. But this representation involves no conflict of interest in the invidious sense. Rather, it casts the lawyer in his honored and traditional role as an authorized but independent agent acting to vindicate the legal rights of a client, whoever it may be.
In re Griffiths, 413 U.S. 717, 724 n.14 (1973). Granted, this passage refers to lawyers representing clients in litigation, as advocates, but I very much agree with Justice Powell’s characterization of the lawyer as “an authorized but independent agent acting to vindicate the legal rights of a client.”
To bring this back to the summary judgment decisions, the Velazquez passage is to the same effect. The constitutional significance of the role of lawyers is to promote, vindicate, defend, etc., the legal rights of clients. The Court in Velazquez recognized this, by way of protecting the capacity of the judiciary to articulate the rights of litigants, for which it requires the assistance of counsel for the parties. This may put lawyers in a subordinate role to that of the judiciary and, in this way, may appear to compromise the independence of the bar. For this reason, I think lawyers may be somewhat reluctant to endorse this aspect of the EO summary judgment opinions.
(3) The Vagueness Doctrine is Important, but Somewhat Under-Emphasized.
To my mind, one of the most offensive aspects of the EOs is the Orwellian assertion of presidential power to define what activities are in alignment with “American interests,” in Section 3 of the orders. I’ve written previously here about how antithetical to the rule of law the assertion is that Donald Trump has the sole authority to decide what is in the interests of the American people. For one thing, Trump’s erratic decisionmaking style (“no air defense missiles for Ukraine” one week, and then the next week, “we must send air defense missiles to Ukraine!”) is an unbeatable example of one of Lon Fuller’s 8 ways to fail to make law (“introducing such frequent changes in the rules that the subject cannot orient his action by them”). This assertion also violates the anti-orthodoxy principle that is central to the constitutional deficiency in all of the EOs. Trump is asserting the power to define a set of beliefs, policies, and values that is contrary to American interests.
Of course, the government does that all the time, but the vagueness doctrine, which is part of constitutional due process but has additional oomph in the First Amendment context, protects those subject to the law against arbitrary enforcement of legal norms, including the government’s position on what is consistent with national interests. This is one of the best parts of the Susman opinion. Judge AliKhan does a very nice job showing how the government seeks to leverage the vagueness of the EOs for their in terrorem effect against law firms that are considering representing parties or positions that Trump has decided are “inconsistent with the interests of the United States” (pp. 42-43). See also the Wilmer order, pp. 57-59. In the Perkins order, Judge Howell makes a similar point regarding the vague assertion that DEI is against the national interest, when the government seems to be unable to define “DEI” (Perkins order, pp. 93-96).
To the extent the objection to the EOs is that the fly in the face of the value of the rule of law, this seems like the best way to connect that objection to the constitutional rights of lawyers and law firms. I probably think this because I am quite persuaded by Gerald Postema’s recent book contending that the normative core of the rule of law is protection against arbitrariness. Legal institutions, procedures, and norms promote the rule of law when they safeguard against the arbitrary exercise of power. Arbitrariness is not the same thing as injustice. It refers to a defect in a process of relying on reasons to reach a conclusion in a process of practical reasoning. An arbitrary act is one that expresses pure will, without considering rules or reasons; in Postema’s excellent phrase, arbitrariness is a manifestation of “feral will” (p. 29). If there is one thing that characterizes Trump’s approach to exercising power, it is the assertion of feral will. I’d like to see more attention given to this connection between 1st/5th/14th amendment due process and the rule of law.
(4) The Fifth and Sixth Amendment Right to Counsel is a Fifth Wheel.
As I see it, the most surprising development in the litigation over the EOs was the relative unimportance of the asserted right to counsel as the core constitutional right that was threatened by the EOs. The Wilmer order (pp. 63-64) actually found that the firm had not shown that the EO violated its clients’ right to counsel because they were able to obtain alternative representation. The Jenner order (p. 42) cites dicta from a D.C. Circuit case in support of a civil litigant’s “right to choose counsel without interference by officialdom.” American Airways Charters v. Regan, 746 F.2d 865 (D.C. Cir. 1984). As I wrote when the Jenner order first came out, the trouble with relying on American Airways Charters is that the government’s actions in that case were very different. The Treasury Department made it clear that it would invoke a statute called the Trading with the Enemy Act to prohibit any lawyer or law firm from representing a Cuban airline. Here the government was singling out particular law firms for punishment based on affiliations with lawyers or clients that had somehow crossed Donald Trump. That’s viewpoint discriminatory for First Amendment purposes, but not necessarily a violation of a civil litigant’s right to counsel.
The Jenner order (pp. 42-43) flirts with the idea that there might be a Fifth and Sixth Amendment right-to-counsel violation if the government interferes with the process of selecting counsel in an arbitrary manner. This links up nicely with the understanding of the rule of law, again relying on Postema, that protection against arbitrariness is the essence of that ideal. However, Judge Bates in the Jenner proceeding seems worried about the line-drawing problems inherent in that approach:
The Court need not determine whether these Fifth and Sixth Amendment problems are in fact Fifth and Sixth Amendment violations, as the order’s incompatibility with the First Amendment suffices to invalidate it. And whereas the defendants’ Section 5 ripeness argument lacks merit with respect to the First Amendment, it might have a bit more meat with respect to Jenner’s right to counsel claims, as those claims might turn on the degree to which the contemplated “guidance” kneecaps Jenner’s ability to fulfill its obligations to its clients. But the Court would be remiss to let this opinion conclude without the observation that Executive Order 14246 at least threatens to metastasize from a violation of the First Amendment to a violation of others as well.
The metaphor of a metastasizing First Amendment violation is a good one. The core problem with the EOs is viewpoint discrimination, retaliation for engaging in First Amendment protected activities, and violation of the anti-orthodoxy principle. Understood in this way, the unconstitutional quality of the EOs under the First Amendment is adjacent to other principles, such as due process vagueness, the right to counsel, and the rule of law. Since the First Amendment violation is independently sufficient to invalidate the EOs, it is not strictly necessary to consider these other principles, particularly if doing so would lead a court into difficult line-drawing problems.
For example, who are the relevant rights-holders here? All civil litigants who might consider hiring Perkins, Jenner, Wilmer, or Susman? All clients, not just civil litigants? What would constitute government interference with the right to retain one of these firms as counsel? Publicly announcing that Firm X is on the government’s shit list? (In the summary judgment briefing the government relied heavily on the argument that the EOs are protected instances of government speech, amounting to nothing more than Trump saying “I don’t like Firm X.”) Retaliating in some way against the firm for representing a similar client in a similar matter? What would constitute improper retaliation? In the Susman order, p. 45, Judge AliKhan cites a district court case called Muniz v. Meese, 115 F.R.D. 63 (D.D.C. 1987), for the proposition that it would be impermissible for the government to interfere with a civil litigant’s right to be represented by their chosen attorneys. That case involved the government, acting as a defendant in a civil rights lawsuit, seeking to impose as a condition on complying with an otherwise proper discovery request under Fed. R. Civ. P. 26, a requirement that the plaintiffs submit to an onerous FBI background investigation, allegedly for security purposes. This case seems to me like a relatively routine decision regarding the appropriateness of a protective order in discovery, as well as the application of various evidentiary privileges. I think it’s putting a bit more weight than a footnote near the end of the opinion can bear to cite the case as standing for the proposition that there is a constitutional right to select and be represented by counsel of one’s choice in civil litigation (cf. 115 F.R.D. at 66 n.11), which may be why this case hasn’t popped up in the other summary judgment opinions.
When I wrote about the Wilmer order, my friend Bill Hodes (of Hazard & Hodes fame) chided me for slighting the importance of NAACP v. Button, 371 U.S. 415 (1963), which is undeniably one of the canonical Supreme Court decisions on the significance of the lawyer’s role. On its face, Button concerns the constitutionality, as applied, of a Virginia ban on the improper solicitation of clients by a lawyer, generally known at the time as “running” or “capping.” Of course the clients in this case were Black families challenging school segregation, and the lawyers were from the NAACP Legal Defense Fund, bringing lawsuits in furtherance of a litigation strategy to desegregate public schools. The LDF served, in effect, as a law firm representing civil rights plaintiffs in desegregation litigation (371 U.S. at 421-22). The Court held that the solicitation statute, as applied, interfere with modes of expression and association protected by the First Amendment.
I tend to see Button as supporting Theme #1, above, namely that the constitutional status of the legal profession is derivative of First Amendment rights of speech, association, and to petition the government for redress of grievances. The Button case says that “association for litigation may be the most effective form of political association” (371 U.S. at 431), which is kind of an endorsement of the value of litigation, but also an explicit reliance on the associational freedom protected by the First Amendment. Button is also a vagueness case, insofar as it is concerned that “a vague and broad statute lends itself to selective enforcement against unpopular causes” (371 U.S. at 435). These constitutional rights supersede the state’s authority to do something it would otherwise be permitted to do, which is to prohibit the traditionally disfavored practices of barratry, maintenance, and champerty, reflecting “hostility to stirring up litigation” (371 U.S. at 439-40). At most I think Button can be read for an approving stance toward litigation that is not for the purpose of “private gain.” Because “no monetary stakes are involved,” there is no risk that an LDF lawyer will “desert or subvert the paramount interests of his client to enrich himself or an outside sponsor” (371 U.S. at 443).
Resort to the courts to seek vindication of constitutional rights is a different matter from the oppressive, malicious, or avaricious use of the legal process for purely private gain.
Thus, I am inclined to read Button as a pro-litigation decision, but not necessarily one that directly protects the attorney-client relationship or the right to counsel. It does protect those interests and relationships, but it does so derivatively, as part and parcel of protecting the First Amendment speech, petitioning, and associational interests of the clients.
How Should the D.C. Circuit Decide the Appeal?
A feature of many law school scholarly workshops is the inevitable “normative question” that goes something like this: “How should the Court decide this case?” or “What do you think would be the proper basis for the Court’s conclusion?” This question is annoying when the paper is primarily based on some methodology other than a doctrinal legal argument. It also greatly overstates the impact that legal scholarship has on judicial decisionmaking. Law professors are used to judges making fun of us for writing papers with titles like “The Influence of Immanuel Kant on Evidentiary Approaches in 18th Century Bulgaria,” to cite a comment by Chief Justice Roberts (which inspired a very funny Green Bag essay by Orin Kerr on . . . you guessed it, the influence of Kant on Bulgarian evidence law). But normative questions persist at faculty workshops everywhere.
Since I pitched this as a first draft of something I’d like to write on the constitutional status of the legal profession, I’ll preempt the inevitable question and ask, how should the D.C. Circuit decide the appeal of the summary judgment decisions in the EO cases? What, specifically, is wrong from the constitutional point of view with the law firm EOs?
A promising answer to that question would combine a couple of arguments from the Jenner and Susman opinions:
The First Amendment Petition Clause includes the right of access to courts for redress of wrongs, and this implies that government actions that significantly impair the right to select counsel of one’s choice are subject to “exacting scrutiny.” Susman opinion, p. 37. This is a purely negative right, and does not imply a positive right to have counsel provided in civil litigation (the so-called “civil Gideon” right). But it does provide an avenue for challenging a government action that is aimed at a law firm or a client taking a position in litigation that is disfavored by the government, outside the ordinary process of briefing and arguing the government’s position in litigation.
There may be heightened First Amendment protections for lawyers in cases where a government action that is viewpoint-discriminatory or intended as retaliation for engaging in protected activities tends to create conflicts of interest or otherwise threaten the independence of a law firm. Jenner opinion, p. 16. Loyalty to clients, along with the independence of the legal profession, are constitutionally significant interests. The idea of “counsel-specific protection” has developed in the criminal defense and post-conviction context, but might have some applicability in the civil litigation context as well. Again, this is a kind of add-on value, on top of the First Amendment’s protection for free expression, association, and petitioning. Like the amped-up vagueness doctrine where there are underlying First Amendment interests (see Button, 371 U.S. at 432 (“standards of permissible statutory vagueness are strict in the area of free expression”), counsel rights may be enhanced where there are also concerns about abuses of government power to enforce orthodoxies of belief or punish the expression of unpopular points of view. The relevant constitutional principle is still anti-orthodoxy, pro-dissent, and hostile to the idea that the President gets to say what is contrary to American values. This principle is based on Barnette, Vullo, and similar First Amendment cases, but their significance is heightened where the right to select counsel is also implicated.
The inevitable follow-up question: What difference does it make? Would any of these cases come out differently on your First-Amendment-plus-counsel-right approach?
My tentative answer: This does matter, because the government may try to re-do the next EO to get around the problems identified in these four opinions. The distinction we’re working toward [and, by the way, the word “toward” in the title of a law review article is also annoying – as a colleague of mine says, “let me know when you get there”] is between the (i) protection provided by the First Amendment for any ol’ dissenter (neo-Nazis, the Asian-American rock band, etc.) and (ii) the constitutional protection that recognizes the importance of the legal profession and the right to counsel to the rule of law and constitutional democracy. Here are a couple of ways in which that distinction might matter:
The Second Circuit opinion in the Vullo case found that the NY state government official’s public statements “cannot reasonably be construed as being unconstitutionally threatening or coercive” (49 F.4th at 716), because the ‘‘were written in an even-handed, nonthreatening tone and employed words intended to persuade rather than intimidate.’’ Obviously the Supreme Court disagreed with that conclusion, but it was based on the application of a multi-factor balancing test (ugh!) from Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963), and elaborated in slightly different ways in circuit courts (Vullo, 144 S. Ct. at 1327). For example, the Second Circuit test looks at ‘‘(1) word choice and tone; (2) the existence of regulatory authority; (3) whether the speech was perceived as a threat; and, perhaps most importantly, (4) whether the speech refers to adverse consequences.”
There is controversy over the permissibility of so-called jawboning by government officials – that is to say, government speech that purports to be persuasive, but not coercive. The Fifth Circuit, in a case involving Biden Administration officials’ communications with social media platforms in an effort to remove disinformation, held that these communications were impermissibly threatening. Missouri v. Biden, 83 F.4th 350 (5th Cir. 2023), rev’d on standing grounds sub nom. Murthy v. Missouri, 144 S.Ct. 1972 (2024). The Fifth Circuit conceded that the government may advocate, even forcefully, for its own position (83 F.4th at 377). It discussed a Ninth Circuit case, Kennedy v. Warren, 66 F.4th 1199 (9th Cir. 2023), involving a letter written by Sen. Elizabeth Warren to Amazon, asking it to stop selling books containing misleading information about Covid. The letter contained no explicit threats of adverse consequences and, in any event, Sen. Warren lacked any real power to impose penalties on Amazon. In context, the court concluded that the changes made by Amazon to its algorithms were motivated by reputational concerns, not fear of some kind of enforcement action by the government. In the social media case, however, the Fifth Circuit found that the White House and the Surgeon General “coerced the platforms to make their moderation decisions by way of intimidating messages and threats of adverse consequences” (83 F.4th at 382).
Here's the suggestion: There should be a significant thumb on the scale of the four-factor test to distinguish persuasion from coercion where the target of the government speech is a lawyer. One reason is that the executive’s regulatory authority (factor #2) is almost nil when it comes to the legal profession – that’s the negative inherent power doctrine. Another reason is that the potential adverse consequences (factor #4) are not only severe, but difficult to prove with the same particularity when the consequences can manifest themselves in subsequent client representations. The legal ethics professors’ amicus brief, that I signed along with several others, points out that the EOs create extremely difficult, and potentially unwaivable, conflicts of interest for the law firms subject to them, as well as to other, as-yet-unnamed law firms. The reason is that firms have an incentive to pull punches in the representation of clients the President perceives as political adversaries, or who take positions that the President decides, in his sole discretion, are contrary to “American interests.” This is a pervasive harm that would be impossible to rectify by the usual mechanism of disclosure and informed consent. The downstream consequences of the reluctance by lawyers to oppose the government would be (i) the harm described by Velazquez, as interference with the capacity of courts to make informed decisions, and (ii) the threat of imposition of officially-mandated orthodoxies of belief.
Thus, I think it does matter that the parties challenging these EOs are law firms, not just the usual motley crew of dissenters that feature in many of the First Amendment decisions cited by the four district judges.
That’s it for now, for coverage of the EO litigation, until there is briefing in the D.C. Circuit. I’d like to say that’s also it for attacks by the Trump Administration on the rule of law, but I have a feeling that’s a subject I will be returning to. I do have some posts teed up on non-Trump-related issues, if I get some time to finish them.
Really good observations here, Brad, as always.