Executive order against Jenner & Block is 'doubly violative of the Constitution,' judge says in ruling for firm
President Donald Trump’s executive order against Jenner & Block violates the First Amendment by punishing the law firm for its causes and clients and by chilling legal representation, a federal judge in Washington, D.C., ruled Friday.
In a May 23 opinion and order, U.S. District Judge John D. Bates of the District of Columbia permanently enjoined the federal government from enforcing the executive order and granted summary judgment to Jenner & Block.
The executive order “is doubly violative of the Constitution,” Bates wrote.
“Most obviously, retaliating against firms for the views embodied in their legal work—and thereby seeking to muzzle them going forward—violates the First Amendment’s central command that government may not ‘use the power of the state to punish or suppress disfavored expression,’” Bates said.
“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,” Bates wrote.
Bates’ decision did not affect a section of the March 25 executive order that represents “something of a screed airing the president’s grievances with Jenner.”
That section refers to Jenner & Block’s successful representation of transgender people and asylum-seekers, as well as its rehiring of a prosecutor who worked on former special counsel Robert Mueller’s investigation of Russian interference in the 2016 election.
Bates had previously entered a temporary restraining order that blocked the government from enforcing certain parts of its order.
He is the second federal judge to permanently block an executive order against a firm. The first, District Judge Beryl A. Howell of the District of Columbia, ruled for Perkins Coie, saying the approach of the order is “Let’s kill the lawyers I don’t like.”
The order against Jenner & Block, declared null and void, had directed that steps be taken to:
• Suspend security clearances of people at Jenner & Block.
• End government contracts with Jenner & Block.
• Determine whether government contractors use Jenner & Block’s services in connection with those contracts and, if so, to end those contracts.
• Limit access of Jenner & Block employees to government buildings.
• Refrain from hiring Jenner & Block employees.
More than 40% of Jenner & Block’s revenue comes from government contractors, subcontractors or affiliates. The order puts that revenue “at grave risk,” said Bates, an appointee of former President George W. Bush.
The government has already suspended a security clearance for one Jenner & Block lawyer, the firm previously told the court.
Other noteworthy quotes from Bates’ opinion:
• “Executive orders like this one have become something of a modus operandi for the president. Both before and after this order, the administration trained similar orders on other large law firms. … The orders follow the same recipe, other than personalized touches in their first section.”
• “It will not come as a spoiler that Jenner opted to sue. But not everyone did. Paul Weiss, for instance, negotiated. … Other firms skipped straight to negotiations. Without ever receiving an executive order, these firms preemptively bargained with the administration and struck deals sparing them. The deals largely mirror Paul Weiss’, though the price continues to rise: instead of $40 million, these firms have pledged $100 million or more in pro bono legal services the administration has a hand in choosing.”
• “Usually, figuring out whether retaliation would chill a speaker of ordinary firmness—and ascertaining just how much a speaker would have to trim her advocacy to avoid reprisal—requires some guesswork. Not here. The serial executive orders targeting law firms have produced something of an organic experiment, control group and all, for how firms react to the orders and how they might escape them. Over the course of that experiment, several firms of (presumably) ordinary firmness have folded rather than face similar executive orders.”
• The Jenner & Block executive order also implicates “the Fifth and Sixth Amendment guarantees of the ‘right to choose counsel without interference by officialdom.’”
• “In short, the order raises constitutional eyebrows many times over.”
Publications covering the decision include Law.com, Above the Law, Law360 and Reuters.
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