'Sudden About-Face': Trump admin says it's dropping fight to penalize law firms, then changes mind
Updated: In a series of about-faces, the U.S. Department of Justice on Tuesday changed its mind about dropping its fight to keep punitive executive orders against law firms.
Issued last year by President Donald Trump, the executive orders tried to strip security clearances and restrict access to federal buildings for lawyers who worked in targeted firms. The orders also threatened to end contracts connected to firms that Trump said were weaponizing the justice system.
Four firms targeted—Wilmer Cutler Pickering Hale and Dorr, Perkins Coie, Jenner & Block and Susman Godfrey—refused to negotiate with Trump and challenged the orders in federal court.
All won motions that the executive orders were unconstitutional, and the DOJ appealed. The DOJ filed a motion Monday to voluntarily dismiss the appeals, which were previously consolidated, in the U.S. Court of Appeals for the District of Columbia Circuit.
The next motion was Tuesday, less than 24 hours later.
On Monday, the firms applauded the DOJ’s decision. Susman Godfrey said in a statement the government had “capitulated” and described it as “a fitting end to its plainly unconstitutional attack on Susman Godfrey and the rule of law.”
Perkins Coie, Jenner & Block and WilmerHale released statements also claiming victory Monday night.
But by Tuesday morning, the DOJ reversed course and filed a “motion to withdraw motion to voluntarily dismiss appeals.”
The firms only learned about the change of heart this morning and reportedly told the government that they opposed the government’s “unexplained request to withdraw yesterday’s voluntary dismissal, to which all parties had agreed,” the government wrote.
Regardless, the DOJ wrote that it “respectfully” moved to withdraw the motion from the day before, pointing out that the court has not yet granted the motion to dismiss.
The DOJ told the ABA Journal that it had no comment on the matter.
“Yesterday evening, the administration told the court that it gave up and wouldn’t even try to defend its unconstitutional executive orders,” Susman Godfrey said in a new statement. “Today, it reversed course. Regardless, Susman Godfrey will defend itself and the rule of law—without equivocation.”
Perkins Coie put out a similar statement.
The battle stemmed from a series of executive orders that Trump unleashed early last year against firms that he claimed played an outsized role in undermining the judicial process and destroying American principles. A number of BigLaw firms cut deals with Trump promising nearly $1 billion in pro bono work for causes picked by the administration.
The decision to drop its defense of the executive orders, and then the subsequent reversal, comes days before the DOJ was slated to file its opening brief in its appeal. In addition, the Trump administration faces a hearing in the U.S. District Court for the District of Columbia in a lawsuit filed by the ABA over the executive orders.
According to the ABA’s suit, the executive orders and the deals that some firms had reached cast a chill across the legal industry.
“The executive orders were designed to cripple law firm business, limit firms’ ability to freely represent clients, terminate security clearances and government contracts and limit access to federal buildings. The executive orders amount to a campaign of law firm intimidation,” ABA President Michelle A. Behnke wrote in a March 2 statement to members.
The government’s Tuesday motion does not violate federal court rules, but it is “highly unusual,” says Ronald S. Safer, a former chief of the criminal division at the U.S. attorney’s office in Chicago.
“Generally, the actions of the DOJ are well-thought-out and carefully vetted. The supervisory chain evaluates the pros and cons of actions before they are taken. Thus, you never see a reversal of course in 24 hours. This type of whiplash—sudden about-face—is indicative of a department that has no guiding principle,” says Safer, a partner at Riley Safer Holmes & Cancila in Chicago.
Updated March 4 at 10:10 a.m. to add the statement from ABA President Michelle A. Behnke.
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