Pigs Flying Now

The Wall Street Journal is reporting [gift link; see also CNN, Bloomberg, Law360] that the Justice Department is dropping its appeals of the four summary judgment and permanent injunction orders entered against the government in the law firm executive order actions. The Trump administration had issued, or threated to issue, a series of EOs against firms that represented clients Trump didn’t like, represented clients whose positions angered the administration (e.g. vindicating rights for immigrants or LGBTQ people), or employed lawyers who had worked on various legal actions against Trump following the first Trump administration (e.g. the EO directed at Jenner & Block, noting that “Jenner was ‘thrilled’ to re-hire the unethical Andrew Weissmann after his time engaging in partisan prosecution as part of Robert Mueller’s entirely unjustified investigation”).

Several major law firms, starting with Paul Weiss, chose to obey in advance, entering into agreements (as far as anyone knows, unwritten) to provide legal services to the administration at no cost – I won’t call that pro bono representation, because it would be a perversion of the concept of assisting indigent clients in securing their rights. Notably, however, each of the four firms that stood up to the blatant bullying and unconstitutional orders – Perkins Coie, Jenner & Block, WilmerHale, and Susman Godfrey – prevailed decisively, with district judges saying things like:

• No American President has ever before issued executive orders like the one at issue in this lawsuit targeting a prominent law firm with adverse actions to be executed by all Executive branch agencies . . . . Using the powers of the federal government to target lawyers for their representation of clients and avowed progressive employment policies in an overt attempt to suppress and punish certain viewpoints, however, is contrary to the Constitution, which requires that the government respond to dissenting or unpopular speech or ideas with “tolerance, not coercion.” . . . Simply put, government officials “cannot . . . use the power of the State to punish or suppress disfavored expression.” (Perkins summary judgment order.)

• More subtle but perhaps more pernicious is the message the order sends to the lawyers whose unalloyed advocacy protects against governmental viewpoint becoming government-imposed orthodoxy. This order, like the others, seeks to chill legal representation the administration doesn’t like, thereby insulating the Executive Branch from the judicial check fundamental to the separation of powers. (Jenner summary judgment order.)

• The cornerstone of the American system of justice is an independent judiciary and an independent bar willing to tackle unpopular cases, however daunting. The Founding Fathers knew this! Accordingly, they took pains to enshrine in the Constitution certain rights that would serve as the foundation for that independence. Little wonder that in the nearly 250 years since the Constitution was adopted no Executive Order has been issued challenging these fundamental rights. Now, however, several Executive Orders have been issued directly challenging these rights and that independence. One of these Orders is the subject of this case. For the reasons set forth below, I have concluded that this Order must be struck down in its entirety as unconstitutional. Indeed, to rule otherwise would be unfaithful to the judgment and vision of the Founding Fathers! (Wilmer summary judgment order.)

Undaunted by four decisive losses in district court, the government appealed to the D.C. Circuit, which on February 6 issued an order consolidating all four appeals. Bloomberg Law reported that Richard Lawson, the DOJ lawyer who had taken the lead in defending the EOs in district court, had left the DOJ to join the America First Policy Institute, a MAGA-aligned think tank. However, Bloomberg also reported that the DOJ was staffing up to pursue the appeals, replacing Lawson with Abhishek Kambli, a deputy associate attorney general. Given Trump’s famous Roy Cohn-inspired approach of always attack, never back down, never apologize, and rely on intimidation, bluster, and aggression, Pam Bondi’s “zealous advocacy” memo, and the pattern of senior DOJ leadership of firing lawyers, like Erez Reuveni, who temper their aggression in order to comply with their ethical obligations, it was completely unsurprising that the administration would continue to impose costs on the law firms it regarded as political enemies by pursuing the appeal. I would have rated the odds of the administration dropping the appeal as right up there with my getting the call to sub in for Chad Smith as the drummer for the Red Hot Chili Peppers on their next tour.

What, then, accounts for the decision? I truly don’t know, because the reasons that would explain it in normal times don’t make sense given the administration’s actions up to this point. For example:

It’s a sure loser, let’s cut our losses.

I think that’s true, but so are many, many of the legal positions taken by the administration, from the defense of the EO purporting to deny birthright citizenship to attempting to reduce retired Navy Captain, and current Arizona Senator Mark Kelly’s rank in retaliation for his participation in a video reminding service members of the obligation to disobey unlawful orders, to the effort to deport Turkish graduate student Rümeysa Öztürk over the content of an op-ed she wrote in a student newspaper, were inevitably going to lose. The administration hardly ever backs down in the face of losses in court, in part because even court losses serve the strategy of seeking to delegitimize legal constraints on presidential power. Trump, Bondi, Stephen Miller, and other members of Team MAGA like nothing more than beefing about “radical left lunatic” judges, “monsters who want our country to go to hell,” or in the case of the Supreme Court Justices who ruled against his tariffs, fools and lapdogs and a disgrace to the nation. I think the DOJ would be content to take the L in the D.C. Circuit and let Todd Blanche go on a tirade about rogue judges.

It would have been a frivolous appeal.

This differs from the previous explanation in explicitly relying on the ethical obligation of lawyers, including the duty stated in Rule 38 of the Federal Rules of Appellate Procedure, not to pursue a frivolous appeal. The trouble with that explanation is that this is a Justice Department headed by an Attorney General who recently fired the senior ethics attorney in the Department to send a message that you do what the boss says or you lose your job, end of story. Or consider the documents supporting Erez Reuveni’s account of having been fired for attempting to prevent DHS officials from violating court orders prohibiting the deportation of Venezuelan nationals pursuant to the Alien Enemies Act. And the response of the DOJ to a flood of habeas petitions in immigration detention cases, which has been to throw overworked and unprepared lawyers to the wolves, does not suggest excessive concern for the plight of these lawyers. It’s pretty hard to believe that someone high up in the DOJ would have directed the dismissal of these appeals out of concern that a lower-level lawyer would have a hard time complying with their duties under the rules of professional conduct and other law.

Anyway, the loss of experienced lawyers from the DOJ has mostly affected the good lawyers who care about complying with ethical obligations. There’s a big sorting process going on, and the lawyers who remain are more likely to be those who are willing to do whatever it takes to advance the objectives of Donald Trump. As fired SDNY prosecutor (and daughter of James Comey) Maureen Comey said, as reported in Politico:

The other bucket is those who are assigning their names to briefs that are full of vitriol, or who are affirmatively making misstatements of fact and law, are failing to cite controlling cases, are submitting affidavits that they know to be false or misleading. I feel no sympathy for them . . . because that is a violation of their oath to the Constitution and of their ethical duties, not only as government lawyers, but as members of the bar.

We don’t have the staffing to pursue this.

Nope, that doesn’t check out. In addition to the previous point about the DOJ’s willingness to put inexperienced junior lawyers in front of a pissed-off federal judge, this is an appeal we’re talking about, not a bunch of fact-intensive trial-level motions and responses. Heck, it’s mostly briefed already at the district court level. It wouldn’t take much to cobble together a brief in the law firm EO cases. Anyway, Paul Clement, Elizabeth Prelogar, Don Verrilli, and all the other heavy-duty appellate lawyers on the other side are going to wipe the floor with whoever the DOJ assigns to the matter, so it’s not like it matters what sad sack they put on the case. I don’t buy that this was a staffing issue. Nor do I think it’s a matter of not being able to walk and chew gum at the same time. Yes, the DOJ is swamped with habeas petitions from its paramilitary immigration enforcement campaign, probably still busy redacting portions of the Epstein files, and litigating all of the other matters on the list of lawsuits against the administration. But this appeal just wasn’t going to be that workload-intensive and it was something that seemed to matter a lot to Trump at the time.

Keeping options open.

My colleague Gautam Hans suggested this explanation. The DOJ may be worried about losing at the D.C. Circuit level, which would then preclude the issuance of additional EOs against law firms that Trump doesn’t like for some reason. By dismissing the appeals, the government preserves its freedom to act, because the four summary judgment decisions do not have preclusive effect, even within the District of Columbia. As Gautam acknowledged to me, however, this risk was apparent when the notices of appeal were filed, so what has changed in the meantime? Heading that strategy off was the whole point of the “law firm intimidation policy” lawsuit filed by the ABA. I tend to think that Trump already got all he needed out of the attacks on law firms. The surrender by Paul Weiss, Skadden, Latham, Kirkland, and other major law firms sent a powerful message to other lawyers and law firms that they would be on their own if they took on this administration, and could not count on a broad base of support from the legal profession’s elite. It was a powerful, and depressing, example of Timothy Snyder’s concept of obeying in advance:

Most of the power of authoritarianism is freely given. In times like these, individuals think ahead about what a more repressive government will want, and then offer themselves without being asked. A citizen who adapts in this way is teaching power what it can do.

Even if this appeal had gone forward and the government had lost decisively, this administration still has a lot of tools it can use to impose enormous costs on political opponents. Is the suspension in advance of Medicaid payments to Minnesota, allegedly justified as an anti-fraud measure but pretty clearly intended to punish the state after the administration backed down from the ICE surge, lawful? Maybe, maybe not, but even if the issue is litigated it will be months or years before the payments are restored, and in the meantime it puts a big hurt on the state. This administration, which has shown no compunction about ratcheting up its campaign against perceived enemies, seems unlikely to be hampered by losing one of many options it has for inflicting pain.

* * *

What’s left as an explanation? Honestly, I’m puzzled by the decision. This newsletter was a quick reaction, dashed off after I read the news, so it’s possible we’ll learn more about the reasoning. I don’t think it represents a retreat from the administration’s general thuggishness and eagerness to weaponize legal processes against opponents. And I certainly don’t think it is a sign that senior lawyers in the Justice Department finally took a good look at the rules of professional conduct. Any readers out there have any ideas?