The executive branch of the US federal government recently started harassing the law firm Perkins Coie, including threatening to terminate federal contracts with the firm's customers.
Is making that particular threat (or carrying it out) legal, or is it a violation of the right to free association for the federal government itself to pressure people to engage in this kind of boycott campaign?
A federal district court judge has promptly held that doing so very likely violates the First (free speech, freedom of association, and right to the petition the government), Fifth (due process), and Sixth (right to effective counsel) Amendments to the United States Constitution, according to a report from National Public Radio. A New York Times account reports:
“This is certainly the biggest affront to the legal profession in my lifetime,” said Samuel W. Buell, who is a longtime professor of law at Duke University and a former federal prosecutor.
A federal judge on Wednesday sided with Perkins Coie in an initial courtroom skirmish with the White House, temporarily barring a major portion of Mr. Trump’s executive order against the firm from taking effect.
“I am sure that many in the profession are watching in horror at what Perkins Coie is going through,” said Judge Beryl A. Howell of the Federal District Court in Washington. She added, “It sends little chills down my spine” to hear arguments that a president can punish individuals and companies like this.
Politico provides further analysis of the ruling:
Howell said the “retaliatory animus” of Trump’s order is “clear on its face” and appears to violate constitutional restrictions on “viewpoint discrimination.” The executive order, which Trump issued last week, “runs head on into the wall of First Amendment protections,” the judge concluded. . . .
Howell noted that the order would harm not only the firm’s 1,200 lawyers — most of whom had nothing to do with the Russia probe — but its 2,500 non-lawyer employees, from IT staff to secretaries.
The judge said Trump’s order was also flawed because it was issued without any notice to the firm or due process to challenge his determination.
“This may be amusing in ‘Alice in Wonderland’ where the Queen of Hearts yells, ‘Off with their heads!’ at annoying subjects … and announces a sentence before a verdict,” Howell said, “but this cannot be the reality we are living under.” . . .
Howell’s ruling is a temporary restraining order, meaning it blocks key provisions of the executive order while litigation continues. In emphatic remarks from the bench following an emergency hearing Wednesday, Howell expressed grave concern that Trump’s order would intimidate other law firms, discouraging them from taking on causes or people at odds with the administration.
“I am sure that many in the legal profession are watching in horror at what Perkins Coie is going through here,” said the judge, an appointee of President Barack Obama. “The order casts a chilling harm of blizzard proportions across the legal profession.”
The hearing featured an unusual appearance by the Justice Department’s chief of staff and acting No. 3 official, Chad Mizelle, who argued in defense of Trump’s order. Mizelle said Trump has largely unchecked authority to single out individuals or organizations as threatening to government interests.
“The president of the United States … is authorized under the Constitution to find certain individuals and certain companies are not trustworthy with the nations’ secrets,” Mizelle said.
Mizelle said Perkins Coie was raising the alarm about a series of potential consequences that have not yet materialized and might never come to pass once agencies issue guidance interpreting Trump’s order.
“What they’re complaining about is a series of bogeymen,” Mizelle said. “None of those ghosts are real. The bogeymen are not real.”
Howell’s ruling is the first legal brushback to Trump for his recent orders targeting law firms he perceives as hostile to his interests. Last month, Trump pulled security clearances for lawyers at the prominent firm Covington & Burling after learning that several of its attorneys had agreed to represent former special counsel Jack Smith, who criminally prosecuted Trump.
Since his inauguration to a second term in January, Trump has also revoked the security clearances of scores of former officials, including President Joe Biden, former Secretary of State Antony Blinken and more than 50 former intelligence officials who signed a letter arguing that reports about the contents of Hunter Biden’s laptop bore the hallmarks of a Russian disinformation operation.
According to CNN's account of the judge's ruling from the bench:
A federal judge on Wednesday halted parts of President Donald Trump’s executive order that targeted a Democratic-linked law firm.
US District Judge Beryl Howell sided with the firm Perkins Coie, which represented Hillary Clinton in 2016 and has been involved in election litigation that Trump opposed.
Howell granted the firm’s request for a temporary restraining order for some sections of Trump’s order. The parts being blocked include its limitations on government contracts with clients of the firm and the potential restrictions it puts on the firm’s employees, such as bans on hiring those employees for government positions or barring their access to federal buildings.
The executive order, Howell said as she read her opinion in court for more than 30 minutes, is “a punishment for a singled-out entity being disloyal.”
When “the Queen of Hearts yells ‘off with their heads’ for her subjects,” Howell added, that “cannot be the reality we are living under.”
The judge, an appointee of President Barack Obama, said the case also touches on larger tests of Trump’s executive authority. The executive order, she said, is an unconstitutional use of “taxpayer dollars and government resources … to pursue a personal vendetta.”
“The president is certainly entitled to his own beliefs, entitled to his own causes, and entitled to his own dislikes,” Howell said. But the president cannot “bring the federal government down on his political opponents … as he has done here.”
The judge also said she was blocking much of Trump’s order because of the economic harm it would cause to the law firm — and the intimidating message it sent across legal industry.
Howell said the order was an “extreme, unprecedented effort” and had an effect of “blizzard proportions across the legal profession.”
Delivering her decision from the bench, Howell said the justice system depends on zealous advocates on all sides being able to argue for their clients.
“The chilling effect of this executive order, 14230, threatens to significantly undermine the integrity of our entire legal system,” she said.
The ruling came at the end of a hearing where the top aide to the attorney general argued that the president should be trusted without question if he wants to blacklist or sanction businesses or people as he sees fit across the country.
The argument from Chad Mizelle, the chief of staff to Attorney General Pam Bondi, is one of staggering presidential power.
Howell was flabbergasted by Mizelle’s argument, saying it sent “chills down my spine” to hear the president could bar all government business with a particular company or person. Howell compared that type of decision by the president to Treasury Department economic sanctions that are decided by the Office of Foreign Assets Control related to national security.
“Your view is, ‘Don’t be chilled, judge. You can just trust the president to draw the right line, and yes, he has that power?’” Howell asked. “And that’s the government’s position here?”
“100 percent,” Mizelle said. “The president has every right to take that action.”
Mizelle also argued the courts shouldn’t be able to limit the president’s authority, especially as he decides upon lawyers’ security clearances or other access questions related to national security.
Perkins Coie’s lawyer Dane Butswinkas, however, said that the national security argument is a red herring, and the Trump administration’s approach refers to “a different Constitution from the one I’m familiar with.”
The firm says the order will cause top clients to drop its lawyers, and ultimately “will spell the end of the law firm,” Butswinkas said. “The president is punishing this law firm” for defending free speech.
He said that Justice Department prosecutors have canceled meetings with Perkins Coie lawyers, hurting their ability to represent clients in ongoing legal matters.
Howell also said she was blocking Trump’s order because it appears to violate several Constitutional protections, including the right for defendants to choose their lawyers, and the First Amendment right to petition the government. Perkins Coie also had no warning of the executive order or chance to oppose it before the White House issued it last Thursday, violating their due process, the judge added.
The portion of the Executive Order most likely to be upheld is the portion stripping people associated with the firm of security clearances, a matter in which the President has particularly great discretion, although the clear personal revenge motive of the President, which he has publicly articulated before and after taking office, and the lack of due process for affected individuals, could undermine even that part of the Executive Order.
Whether this ruling will be upheld on appeal is hard to know in a period of time when the extremely conservative current U.S. Supreme Court has cast aside many longstanding interpretations of federal law and the U.S. Constitution.
This ruling is an eminently reasonable ruling in light of existing precedents, but precedents that are not very factually specific to this case.
There are essentially no controlling precedents in more or less identical fact patterns, because no other U.S. President has attempted so black list a law firm based upon who it represented and how, in such a blatant and open case of personal retribution for perceived past slights against the individual serving in that capacity.
The Executive Order in question is as follows (according to the White House's own official website):
By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered:
Section 1. Purpose. The dishonest and dangerous activity of the law firm Perkins Coie LLP (“Perkins Coie”) has affected this country for decades. Notably, in 2016 while representing failed Presidential candidate Hillary Clinton, Perkins Coie hired Fusion GPS, which then manufactured a false “dossier” designed to steal an election. This egregious activity is part of a pattern. Perkins Coie has worked with activist donors including George Soros to judicially overturn popular, necessary, and democratically enacted election laws, including those requiring voter identification. In one such case, a court was forced to sanction Perkins Coie attorneys for an unethical lack of candor before the court.
In addition to undermining democratic elections, the integrity of our courts, and honest law enforcement, Perkins Coie racially discriminates against its own attorneys and staff, and against applicants. Perkins Coie publicly announced percentage quotas in 2019 for hiring and promotion on the basis of race and other categories prohibited by civil rights laws. It proudly excluded applicants on the basis of race for its fellowships, and it maintained these discriminatory practices until applicants harmed by them finally sued to enforce change.
My Administration is committed to ending discrimination under “diversity, equity, and inclusion” policies and ensuring that Federal benefits support the laws and policies of the United States, including those laws and policies promoting our national security and respecting the democratic process. Those who engage in blatant race-based and sex-based discrimination, including quotas, but purposefully hide the nature of such discrimination through deceiving language, have engaged in a serious violation of the public trust. Their disrespect for the bedrock principle of equality represents good cause to conclude that they neither have access to our Nation’s secrets nor be deemed responsible stewards of any Federal funds.
Sec. 2. Security Clearance Review. (a) The Attorney General, the Director of National Intelligence, and all other relevant heads of executive departments and agencies (agencies) shall immediately take steps consistent with applicable law to suspend any active security clearances held by individuals at Perkins Coie, pending a review of whether such clearances are consistent with the national interest.
(b) The Office of Management and Budget shall identify all Government goods, property, material, and services, including Sensitive Compartmented Information Facilities, provided for the benefit of Perkins Coie. The heads of all agencies providing such material or services shall, to the extent permitted by law, expeditiously cease such provision.
Sec. 3. Contracting. (a) To prevent the transfer of taxpayer dollars to Federal contractors whose earnings subsidize, among other things, racial discrimination, falsified documents designed to weaponize the Government against candidates for office, and anti-democratic election changes that invite fraud and distrust, Government contracting agencies shall, to the extent permissible by law, require Government contractors to disclose any business they do with Perkins Coie and whether that business is related to the subject of the Government contract.
(b) The heads of all agencies shall review all contracts with Perkins Coie or with entities that disclose doing business with Perkins Coie 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 Perkins Coie has been hired to perform any service;
(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, all agencies shall submit to the Director of the Office of Management and Budget an assessment of contracts with Perkins Coie or with entities that do business with Perkins Coie effective as of the date of this order and any actions taken with respect to those contracts in accordance with this order.
Sec. 4. Racial Discrimination. (a) The Chair of the Equal Employment Opportunity Commission shall review the practices of representative large, influential, or industry leading law firms for consistency with Title VII of the Civil Rights Act of 1964, including whether large law firms: reserve certain positions, such as summer associate spots, for individuals of preferred races; promote individuals on a discriminatory basis; permit client access on a discriminatory basis; or provide access to events, trainings, or travel on a discriminatory basis.
(b) The Attorney General, in coordination with the Chair of the Equal Employment Opportunity Commission and in consultation with State Attorneys General as appropriate, shall investigate the practices of large law firms as described in subsection (a) of this section who do business with Federal entities for compliance with race-based and sex-based non-discrimination laws and take any additional actions the Attorney General deems appropriate in light of the evidence uncovered.
Sec. 5. Personnel. (a) The heads of all agencies shall, to the extent permitted by law, provide guidance limiting official access from Federal Government buildings to employees of Perkins Coie when such access would threaten the national security of or otherwise be inconsistent with the interests of the United States. In addition, the heads of all agencies shall provide guidance limiting Government employees acting in their official capacity from engaging with Perkins Coie employees to ensure consistency with the national security and other interests of the United States.
(b) Agency officials shall, to the extent permitted by law, refrain from hiring employees of Perkins Coie, absent a waiver from the head of the agency, made in consultation with the Director of the Office of Personnel Management, that such hire will not threaten the national security of the United States.
Sec. 6. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
DONALD J. TRUMP THE WHITE HOUSE, March 6, 2025.
The executive branch of the US federal government recently started harassing the law firm Perkins Coie, including threatening to terminate federal contracts with the firm's customers.
If you actually read the Executive Order, it is an order to do the following:
The EO also clearly uses the word "departments" meaning federal departments as opposed to private firms when it dictates who should be following the EO, BUT is is important to understand that the FAR and FASA Acts gives the federal government huge latitude in determining what contractors AND subcontractors it does business with. It has this authority to make sure that the primary contractors that the Federal Government does work with will not subcontract work out to criminal, hostile, or embargoed firms or firms that use illegal employment practices such as child or slave labor. So, while this may feel like Harassment, it is well within the right and duty of the Federal Government if the President or an appointed official finds a contractor or subcontractor to be against America's interests to demand the termination of subcontractors.
Just because Trump has strong personal reasons to blacklist the law firm is not in of itself enough to stop him from doing it, because it is ultimately up to the Commander-in-Chief to decide what constitutes a threat to national security. It all comes down to the basic question of IF the PO is fundamentally within the President's power. Biden unilaterally made similar EOs to block Federal Involvement with over 300 companies based on similar National Security concerns; so, it seems pretty clear that this is well within Trump's authority to do.
If anything, I would say that Trump's transparency that he planned to blacklist this law firm actually gives him more implied authority in doing so under the Consent of the Governed principle, because it means that the general public had the right to weight this intention when they elected him.
All this said, I would not be surprised if limits are placed on the execution of the order even if no legal violations are found by limiting it to the scope of reasoning defined by Section 1. Since the EO gives clear reasoning, it could be judged that the EO within its own wording should not extend to all persons working for Perkins Coie, but only to the organization as a whole. This would limit the damages by association of those lawyers who have not played any part in the issues described in Section 1 allowing said lawyers freedom to retain or regain their individual government clearances should they choose to disengage activities with Perkins Coie to work elsewhere.
As asked - No. Feds go after Starbucks customer because of the president doesn't like Starbucks? Do we even have to ask this question?
Or, maybe it's a poorly-formed question - asking something else.
Firstly, the government isn't a business, so there are no customers. In a political sense, a 'customer' is usually a citizen. Here, the meaning of 'customer' must be assumed to be a government contractor, which is odd because there is no resemblance to any type of customer. With that established, there are some really fundamental questions to answer...
Then, you go from there.
