Trump executive order 'cuts Susman off at the knees,' judge says, permanently blocking it
A fourth federal judge has granted a permanent injunction blocking President Donald Trump from targeting law firms because of the clients they represent and the causes that they back.
U.S. District Judge Loren L. AliKhan of Washington, D.C., ruled Friday that Trump’s executive order targeting Susman Godfrey violates the First Amendment and the Fifth Amendment.
AliKhan said the order “cuts Susman off at the knees” and “hangs like the sword of Damocles over the firm.”
“The order goes beyond violating the Constitution and the laws of the United States,” AliKhan said. “The order threatens the independence of the bar—a necessity for the rule of law.”
Judges have also blocked Trump’s executive orders against Perkins Coie; Jenner & Block; and Wilmer Cutler Pickering Hale & Dorr.
AliKhan also referenced an ABA lawsuit filed June 16 that seeks to stop ongoing intimidation of lawyers and firms by the Trump administration. The suit claims violations of the First Amendment and separation of powers. The suit was filed on the ABA’s behalf by Susman Godfrey.
A White House fact sheet called Susman Godfrey a “rogue law firm.” The accompanying April 9 order cited three reasons why Trump is targeting Susman Godfrey.
One reason, the order said, is because the firm spearheaded efforts to degrade elections, an apparent reference to the firm’s representation of Dominion Voting Systems and state election officials in 2020 election litigation. Another reason cited apparently references Susman Godfrey’s contribution to a gay rights group, said to espouse “radical ideology” that undermines the military. The third reason cited a Susman Godfrey program offering financial help and employment opportunities to students of color, said to constitute illegal discrimination.
The order then called for suspension of security clearances had by individuals at Susman Godfrey, for limiting Susman Godfrey’s access to government buildings, and for an end to government contracts had by Susman Godfrey clients for which Susman Godfrey was hired to perform services.
AliKhan ruled that:
• Susman Godfrey was subjected to unfavorable treatment for activities protected under the First Amendment, including its representation of certain clients, its donations to certain causes, and its expression of beliefs related to diversity.
• The government interfered with the firm’s right to freedom of association with its clients by targeting the clients’ government contracts.
• The order violated Susman Godfrey’s right to petition the government for redress of grievances by preventing lawyers from entering federal buildings, interacting with agency officials and entering courthouses.
• The government violated the Fifth Amendment by failing to offer procedural due process before interfering with the firm’s interest in its good reputation, its right to contract, and its attorneys’ right to pursue their chosen profession.
• The order is unconstitutionally vague because there is no fair notice of what is prohibited and how the firm can avoid sanctions in the future. The order “hangs like the sword of Damocles over the firm” because it delegates matters to the government for resolution on an ad hoc and subjective basis, AliKhan said.
• The order violates the Fifth Amendment’s equal protection principle.
• The order violates the Fifth Amendment right to counsel of Susman Godfrey’s clients. The order “cuts Susman off at the knees and effectively denies the firm’s clients its counsel,” AliKhan said.
• The order violates separation of powers principles because there is no statutory or constitutional basis for the actions taken against Susman Godfrey. “None of the president’s many powers—not his power as commander in chief, nor his foreign policy powers, nor his power to appoint and remove government officials—can justify the targeting of a law firm for protected speech and actions,” AliKhan said.
Susman Godfrey issued this statement after the ruling: “The court’s ruling is a resounding victory for the rule of law and the right of every American to be represented by legal counsel without fear of retaliation. We applaud the court for declaring the administration’s order unconstitutional. Our firm is committed to the rule of law and to protecting the rights of our clients without regard to their political or other beliefs. Susman Godfrey’s lawyers and staff live these values every day. We are also deeply appreciative of those who supported us in this lawsuit, including our superb legal team at Munger, Tolles & Olson and the thousands of lawyers, former judges, law professors and law students who submitted amicus briefs.”
Nine other firms have reached pro bono agreements with Trump to avoid punitive orders. They are Paul, Weiss, Rifkind, Wharton & Garrison; Milbank; Willkie Farr & Gallagher; Skadden, Arps, Slate, Meagher & Flom; Kirkland & Ellis; A&O Shearman; Simpson Thacher & Bartlett; Latham & Watkins; and Cadwalader, Wickersham & Taft.
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.
Publications covering AliKhan’s decision include the Washington Post, Law360, Law.com and Reuters.
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