Judge questions rationale for targeting of Jenner Block by Trump

WASHINGTON (CN) — A George W. Bush appointee grilled the Justice Department over President Donald Trump’s executive order targeting law firm Jenner Block on Monday, expressing doubt that any justification made the order constitutional.

Jenner Block is one of four law firms challenging Trump’s executive orders in court and has argued that the order wrongfully targets the firm for representing clients or employing individuals the president disfavors.

In his executive order targeting Jenner Block, Trump specifically cited the firm’s employment of Andrew Weissmann, who worked on former special counsel Robert Mueller’s investigation into Russian interference in the 2016 election.

Trump also highlighted the firm’s pro bono programs, which he asserted are used for “destructive causes.”

The order directed agency heads to review attorneys’ security clearances and any government contracts, as well as barring attorneys from government buildings and the hiring of Jenner employees.

Michael Attanasio, of the firm Cooley and representing Jenner Block, urged U.S. District Judge John Bates to strike down the entire order as unconstitutional.

He highlighted other firms reaching agreements with Trump to reverse or avoid similar targeting as proof the orders had chilled law firms into acquiescing to the president’s viewpoint.

“The first thing they tell us that the retaliation and retribution campaign, this ‘get with the program or face the consequences,’ is working,” Attanasio said Monday.

He expressed concern that if Trump’s orders remained in place, law firms would begin second-guessing who they represent and how aggressively they advocate for their clients.

On March 28, Bates granted Jenner Block a temporary restraining order blocking agency heads from enforcing Trump’s directive to review all government contracts tied to the firm and bar firm employees from entering certain government buildings.

He left in place, as did other federal judges who issued near-identical temporary restraining orders, Trump’s directive to review Jenner Block employees’ security clearances.

Attanasio argued that following March 28, the government began revoking security clearances first without conducting proper individualized assessments, leading to several firm employees on military reserve to lose their necessary clearances.

Richard Lawson, deputy associate attorney general, argued that the individuals had their clearances suspended and were actively undergoing assessments, but could not provide specific details.

Bates did not seem reassured, noting that any individual challenging their suspension needs a waiver from Russell Vought, the Office of Personnel Management director, which he called a “pretty skewed review.”

Lawson further argued that Bates should not be able to review the president’s security clearance determinations, which he said were well within the president’s discretion, as it would wrongfully tie the executive’s hands when deciding who can be trusted with the nation’s secrets.

Bates expressed concern that, by adopting the government’s position, he would allow Trump to issue similar blanket bans on Muslims, registered Democrats or all Harvard graduates, which would be clearly unconstitutional.

He pressed Lawson to explain how he could sever the first section of the executive order, which laid out clearly that the executive order was meant to burden Jenner Block’s business in retaliation for speech and conduct he disfavored, and allow any part of the order to stand.

Lawson — who replaced Justice Department chief of staff Chad Mizelle as sole counsel in each law firm’s case — urged Bates to discount that retaliatory language and accept assertions of racist hiring practices at Jenner Block as the order’s basis.

Trump has argued that many big law firms have discriminated against white applicants via their diversity, equity and inclusion programs and raised the issue as justification for his orders.

Last Wednesday, U.S. District Judges Beryl Howell and Richard Leon — a Barack Obama and Bush appointee, respectively — also indicated they may permanently enjoin the retaliatory executive orders.

Howell, presiding over Perkins Coie’s suit, said the apparent blacklisting of attorneys and firms with any ties to individuals or causes Trump deems outside the “national interest” echoed the Red Scare, where Senator Joseph McCarthy used accusations of communist infiltration to discredit those he deemed subversive.

Leon, whose courtroom attracted so much attention that a line formed outside, also appeared unconvinced by Lawson’s arguments and seemed inclined to rule in WilmerHale’s favor.

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, Allen Overy, Kirkland Ellis and Simpson Thacher.

Susman Godfrey, Perkins Coie and WilmerHale 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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