Trump-Targeted Law Firms Seek to Extend Win Streak in DC Appeal

Four Trump-targeted law firms aim to set up their next victory on Thursday by arguing White House executive orders attacked the legal system and weren’t just about security clearances.

Appellate litigation star Paul Clement will aim to convince a panel of mostly Obama-appointed judges that President Donald Trump retaliated against the firms for constitutionally protected client advocacy when he issued sanctions against them last year—affirming lower court rulings that sided with the firms.

Justice Department lawyer Abhishek Kambli will counter that revoking security clearances—both for the four firms and for another Trump-targeted attorney, Mark Zaid—were a constitutionally protected exercise of presidential authority.

The three-judge panel of the US Court of Appeals for the DC Circuit will hear the arguments in a case that has riveted Big Law for more than a year. Four lower courts struck down as unconstitutional the orders against Perkins Coie, Jenner & Block, WilmerHale, and Susman Godfrey that threatened to restrict lawyers’ access to government buildings, cancel clients’ government contracts, and revoke lawyers’ security clearances.

The best chance for the DOJ to reverse its losing streak is with a dissenting opinion from the one Trump-appointed judge on the panel or a revival of the portion of the White House orders that revoked the firms’ security clearances, lawyers familiar with the case said. But they acknowledge DOJ has an uphill climb.

“This isn’t just about security clearances,” said Molly Gaston, a former associate deputy attorney general under Merrick Garland. “It’s also about the executive branch infringing on the judicial branch’s prerogative to manage the adversarial court system.”

The court battle sparked by Trump’s punitive executive orders against major law firms with connections to his legal foes has implications for limits on presidential power and lawyers’ ability to represent politically disfavored clients without fearing government retribution.

Classified Access

Asked by the court how he wanted to conduct the May 14 hearing, Kambli, the deputy associate attorney general departing the agency this month, sought to devote the bulk of his time arguing for revoking security clearances.

DOJ’s emphasis on the security clearance argument reveals its confidence in that strategy. Observers say courts have typically deferred to executive authority in determining access to classified materials. Earlier in the appeal, DOJ sought to delay the law firms’ case until a ruling was issued in Zaid’s.

“If you were power-ranking which parts of these orders were likely to survive, just the security clearance revocations might have a slightly better chance,” said Clayton Bailey, a former DOJ lawyer who defended President Joe Biden’s policies in the federal programs branch.

The appeals court ultimately sided with the format suggested by the embattled law firms, which asked for their cases to be argued separately from Zaid’s. Although it favors the firms’ argument, both cases will be argued before the same judicial panel on Thursday.

Zaid represented a whistleblower whose allegations led to Trump’s first impeachment, and his security clearance was revoked in a White House directive that also targeted Hillary Clinton and Joe Biden.

“The department views its arguments and legal positions in the security clearance case as much stronger than in the law firm cases,” said James Pearce, senior counsel at Washington Litigation Group who worked on the special counsel team that prosecuted Trump over the Jan. 6 attack on the US Capitol. “If it can get the court to think about the law firm cases as falling in the same bucket as Mark Zaid’s challenge, the more likely that argument is to prevail.”

Severability

Clement and other firm advocates have argued the orders wear their retributive nature on their face, as each begins with a screed against lawyers and cases that have been at odds with the president. WilmerHale employed the late Robert Mueller, former FBI director and special counsel who investigated Trump’s campaign for ties to Russia; Jenner & Block employed Andrew Weissmann, who aided Mueller’s probe.

Gaston said the retaliatory language of the orders makes them difficult to defend against First Amendment scrutiny; had the Trump White House administered sanctions that weren’t so blatantly retributive, those orders may have survived, she said.

“Usually, the executive branch has a great deal of deference to make determinations about security clearances, but I don’t think it will work here because these revocations were retaliatory rather than based on national security concerns,” Gaston said. “It’s clear from the face of the executive orders that this was retaliation by the president. He didn’t conduct individual review to see if these folks were trustworthy holders of security clearances.”

To get around the retaliatory nature firm advocates say is embedded in the Trump orders, DOJ argues each section can survive on its own if others are enjoined. Kambli’s ability to convince the judges of the orders’ severability will impact the likelihood of reviving part, if not all, of the orders.

Kambli argues the first section of the orders were political speech that can’t be reviewed by courts. He also seeks to convince the court that injunctions against the sections pertaining to government contracts and building access were premature—the agencies haven’t developed guidelines for implementing those parts.

“Had the district courts not prematurely enjoined those sections, additional developments could have clearly illustrated their lawful applications,” Kambli said in an appellate brief.

Aiming Higher

DOJ’s chances on appeal and in the Supreme Court appear better than they did in district court.

One of the judges overseeing the case served in the first Trump White House overseeing regulatory implementation and has issued rulings sympathetic to Trump’s use of executive power. Judge Neomi Rao ordered an end to DC District Chief Judge James Boasberg’s effort to hold Trump administration officials in contempt for flouting his orders to halt the deportation of migrants.

A favorable dissent from Judge Rao could be used for a request for Supreme Court review, Pearce said. The conservative-led high court has ruled in Trump’s favor in challenges to his second term policies more than 75% of the time in the last year, when considering cases before they’ve been fully briefed and argued before the justices, Bloomberg Law reported in January.

“Taking their lumps in district court is a strategy this administration is willing to engage in,” Bailey said.

In the end, the Trump administration can pull out a public relations win, if not a judicial one, said Rebecca Roiphe, a New York Law School legal ethics professor and former Manhattan prosecutor.

After losing the appeal, the administration can discredit the court and use the loss to fuel mistrust in the judiciary, she said, adding “that’s the best way to come out with a public relations win.”

Perkins Coie v. DOJ et al, D.C. Cir., 25-05241