'Is this a throwback to the McCarthy era?' Judges consider injunction bids by firms targeted in Trump orders
Then-Chief U.S. District Judge Beryl A. Howell of the District of Columbia listens during an investiture ceremony in April 2018 in Washington, D.C. (Photo by Alex Wong/Getty Images)
Two federal judges sharply questioned a government lawyer Wednesday as they considered bids by Perkins Coie and Wilmer Cutler Pickering Hale and Dorr to permanently enjoin executive orders that target them and their clients.
“Is this a throwback to the McCarthy era, the Red Scare era?” asked U.S. District Judge Beryl A. Howell of Washington, D.C., in the Perkins Coie case. Howell was questioning Department of Justice lawyer Richard Lawson, according to Law360.
Publications with coverage, in addition to Law360, include the New York Times, Reuters, Bloomberg Law and Law.com (here and here).
Lawson argued for the government in the cases before Howell and U.S. District Judge Richard J. Leon, both of whom are located in the District of Columbia.
Perkins Coie and WilmerHale are among four law firms that filed lawsuits to challenge the executive orders that typically seek the suspension of lawyers’ security clearances; restrict their access to government buildings; and call for termination of government contracts for which the firms were hired to provide services, including clients’ government contracts.
Targeted firms have represented clients and worked on causes opposed by President Donald Trump.
Howell asked the “throwback” question after noting a declaration from a former Department of Defense official who oversaw security clearances. He said a blanket suspension of clearances, as called for in the executive orders, “harkens back to the repudiated and discredited programs,” including the Red Scare.
Arguing for Perkins Coie, Dane H. Butswinkas, a partner at Williams & Connolly, said Trump’s actions stem from “the playbook of authoritarianism,” according to Bloomberg Law.
“This is exactly the kind of conduct the Constitution forbids,” Butswinkas said.
Butswinkas said the executive orders targeted lawyers who are no longer with the firms, according to Law.com.
“It sounds more like national insecurity than national security,” he said.
In the hearing before Leon, Lawson said the orders are a valid exercise of executive function rather than punishments for First Amendment activities.
Leon questioned that assertion, Law360 reports.
“It’s pretty clear it’s retaliation,” Leon said, “at least to this court.”
Arguing for WilmerHale, Paul D. Clement of Clement & Murphy said the executive orders “are a direct and lethal threat to an independent bar,” according to Law360.
“The signal it sends to the whole bar is, ‘Watch out,’” Clement said.
Nine firms have reached deals with Trump to avoid executive orders. The deals typically provide that the firms will provide pro bono services for projects mutually supported by the firms and Trump. Amounts of pro bono pledged range from $40 million to $125 million.
Above the Law has created a list of firm actions in response to the Trump administration in its “BigLaw Spine Index.”
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