Court Order Blocking Trump From Targeting Perkins Coie Is Overreach

The order also accused Perkins Coie of racial discrimination, citing its “publicly announced percentage quotas in 2019 for hiring and promotion on the basis of race and other categories prohibited by civil rights laws.”

The order suspended security clearances for the firm’s lawyers and barred them from federal buildings, prohibited the government from engaging the firm, directed federal contractors to disclose if they use the firm’s services, and referred the firm to be investigated for violating civil rights laws. The order was one of several similar orders issued, or contemplated, against leading law firms.

Howell, an Obama appointee, previously served as chief judge for the District of Columbia, in which capacity she was a strong supporter of Jack Smith’s Trump prosecution. Her 120-page opinion excoriated the administration for disregarding the First Amendment and failing to comply with her orders. She criticized the content and formatting of the Justice Department’s memoranda, averred that the government had no credible evidence of racial discrimination or other wrongdoing by Perkins Coie, and rejected all of its arguments.

Howell is right that the First Amendment and principles of American justice mandate that lawyers be able to deliver candid advice and zealous advocacy to their clients. But, she goes too far by ignoring the compelling case that Perkins Coie conspired with Hillary Clinton and Fusion GPS to improperly influence the 2016 election and destabilize the Trump presidency by developing the fraudulent Steele dossier (which falsely accused Trump of being a Russian agent), and then misleading government investigators about its provenance.

She began her decision by quoting Shakespeare’s admonition to “kill all the lawyers” to make it easier to seize power, and Alexis de Tocqueville, who wrote that the legal profession “is the most powerful existing security against the excesses of democracy.” Howell then held that “using the powers of the federal government to target lawyers for their representation of clients and avowed progressive employment policies in an overt attempt to suppress and punish certain viewpoints…, is contrary to the Constitution, which requires that the government respond to dissenting or unpopular speech or ideas with tolerance, not coercion…. Simply put, government officials cannot... use the power of the State to punish or suppress disfavored expression.”

Access to unvarnished legal advice is sacrosanct, but Howell goes off the rails. She never acknowledges that much of Perkins Coie’s wrongdoing had nothing to do with its legal advice, but came in its capacity as a political kingpin. She bewilderingly asserts that using the firm’s admissions of racial discrimination violates its First Amendment rights. Her related attack on the administration’s opposition to diversity programs reveals her motives for this bizarre conclusion.

She never discusses the constitutional infirmities of requiring a client to hire a lawyer in whom they lack trust. Perkins Coie sought to destroy Trump personally and politically. Its beliefs differ from his. That is more than sufficient reason under Article II and the Fifth and Sixth Amendments that the president, who is the executive branch of government, may choose not to work with it.

On the other hand, Trump may not target Perkins Coie because its lawyers provide legal services to litigants whose positions are adverse to his administration, bar the firm from federal buildings, or require federal contractors to disclose their law firms.

The question of whether the security clearances granted to Perkins Coie lawyers may be limited is a close one, given the firm’s fraudulent manipulation of Congress and the FBI. The firm’s defenders are fixated on the fact that the partners who led its fraudulent services have moved on. So what. The firm is organized on a partnership model. Partners still at the firm likely were involved in, and benefited from, the fraud.

When progressives applaud as conservative lawyers like John Eastman are indicted and unconstitutionally subjected to disbarment for giving legal advice to President Trump on the 2020 election, it is difficult to sympathize with a law firm that engaged in a conspiracy to steal an election and topple a sitting president. Nonetheless, in a free society, government officials do not use their power to punish lawyers because of their clients or advice, while also recognizing that being a lawyer is not a free pass to commit fraud or override the constitutional powers of the president.