Federal judges skeptical of Trump crackdown on law firms

WASHINGTON (CN) — A pair of federal judges doubt the Trump administration had any justification for executive orders targeting big law firms beyond the president’s personal distaste for them, saying Wednesday the retaliation echoes the Red Scare of the 1950s.

Perkins Coie and WilmerHale sued in March challenging President Donald Trump’s orders to suspend their attorneys’ security clearances, review government contracts tied to the firms and investigate the firms’ diversity, equity and inclusion programs.

In the executive orders Trump declared the firms had engaged in conduct “inconsistent with the interests of the United States” and its national security.

U.S. District judges Beryl Howell and Richard Leon granted temporary restraining orders blocking provisions that would bar contracts and access to government buildings, but allowed the security clearance and DEI reviews to continue.

Justice Department attorney Richard Lawson argued that the president has the discretion to decide who should receive security clearances and scrutinizing such decisions would wrongfully tie the hands of the president.

Twenty-four Perkins Coie employees saw their security clearances — 12 due to previous military or law enforcement service and 12 as military reservists — revoked en masse. Lawson said the standard individualized assessments began after their clearances were revoked.

Howell expressed concern that granting the president such discretion would bring the country back to the Red Scare where Senator Joseph McCarthy weaponized Cold War anxieties to assert communist infiltration throughout the government to blacklist political enemies and so-called subversives.

The Barack Obama appointee said that if Trump could simply label any law firm, organization or group as acting against the national interest — a term Lawson could not define — he could suspend the clearances of an entire ethnic or ideological group.

“When immediate suspension for security clearance is not for personal conduct, but simply their associations, it is no different than a directive to suspend security clearances for all Jews, Muslims, women, LGBTQ people, Republicans or Democrats,” Howell said.

She pointed to an expert report from William Leonard, who worked 29 years at the Department of Defense in personnel security and characterized Trump’s conduct as a throwback to the Red Scare. He added that such blanket suspensions actually harm national security efforts.

Lawson argued that any “national interest” concerns were tied to national security concerns and suggested that the ongoing individual assessments could restore the individuals’ clearances.

Dane Butswinkas, of Williams Connolly and representing Perkins Coie, said the president seemed to be acting out of “national insecurity rather than national security.”

He noted the Justice Department provided no evidence to suggest the executive orders were based on anything but a personal vendetta and a desire to chill legal resistance.

“This is exactly the kind of conduct the Constitution forbids,” Bustwinkas said.

Attorney General Pam Bondi and White House Office of Management and Budget director Russell Vought undermined Howell’s authority in a March 20 memo.

“The executive branch’s position is that Executive Order 14230 is permissible, and that the court’s order was erroneous,” the joint memo said. “The government reserves the right to take all necessary legal actions in response to the ‘dishonest and dangerous’ conduct of Perkins Coie.”

Howell said the language, added to a previous version that just informed federal agencies of the court’s order, read like a “temper tantrum.”

“It seems worthy of a three-year-old, certainly not of the Department of Justice or OMB,” Howell said.

The lawsuits have garnered support from fellow attorneys and legal advocates, drawing a wide group of supporters to the E. Barrett Prettyman Courthouse in Washington, several of whom carried papers signs emblazoned with “I am WilmerHale.”

The gallery in Leon’s courtroom for the WilmerHale hearing quickly filled in the 20 minutes after the Perkins Coie proceeding ended, and Leon did not open the public access line or allow the proceedings to be streamed to an overflow courtroom — leaving a line of approximately 30 attorneys and reporters outside the doors.

According to Lawfare’s Roger Parloff, one of the few reporters in the room, the George W. Bush appointee was not convinced by Lawson’s justifications and seemed inclined to rule in the firm’s favor. Leon also indicated he would rule in the coming weeks.

Trump has targeted five firms — Perkins Coie, WilmerHale, Jenner Block, Susman Godfrey and Covington Burling — and made deals with nine for $1 billion in free legal services for initiatives backed by the administration — Paul Weiss, Skadden Arps, Willkie Farr, Latham Watkins, Milbank, Cadwalader, Kirkland Ellis and Simpson Thacher.

Jenner Block and Susman Godfrey have sued and obtained temporary restraining orders.

Trump targeted Covington Burling first, ordering the suspension of employee Peter Koski’s security clearance for his work with former special counsel Jack Smith.

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