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Note: For almost 40 years, with limited interruptions for government service, I was a member of the Perkins Coie law firm. Still more relevant, and as stated in the firms’ complaint challenging the executive order analyzed below, I was the founder of the firm’s Political Law Group and chaired it until I left to become the White House counsel to President Barack Obama. Seven years ago, I left the firm to devote myself to law teaching and writing, and a limited practice on my own. I prepared this essay independently, without participation by my former firm. The views expressed are mine alone.
President Donald Trump’s actions against the firms of Covington & Burling, Perkins Coie, and Paul Weiss bring into sharp focus his view of executive authority in a presidency driven by personal will and whim.
The actions vary in wording and scope. The presidential memorandum directed against Covington & Burling orders that all contracts with the firm be terminated and, pending a review of “weaponization of the judicial process,” firm lawyers and employees who aided Special Counsel Jack Smith in his investigations be stripped of their security clearances. Trump proceeded by issuing an executive order (EO) against Perkins Coie, and its scope, pending “review,” is more sweeping: the stripping of security clearance for all lawyers and employees; the termination of contracts with Perkins Coie and with any firm represented by Perkins; and limitations on hiring Perkins personnel, their access to federal property, and their “engagement” with government personnel. The Paul Weiss executive order is much like the one involving Perkins.
As discussed below, Trump’s ordering of these sanctions is not simply, as many suppose, an isolated instance of spite or retaliation—the legal equivalent of a temper tantrum. Rather, they are a central element of Trump’s longstanding practice of relentlessly vilifying those he deems to be his opponents. In the face of a temporary restraining order (TRO) issued against the government in the Perkins case, Trump in his March 14 speech at the Department of Justice delivered further attacks on lawyers he deems corrupt and unethical and, immediately thereafter, issued an EO against another firm, Paul Weiss.
In the text of these directives, in the administration's representations to the court, and in the context of Trump’s politics and conception of the presidency, five core elements of this attack stand out: 1) the nature of the claim of authority; 2) the apparent motive, broader than pure “retaliation,” behind these attacks on law firms; 3) the process by which these actions were developed; 4) their intended effect; and 5) the administration’s maneuvers to fend off the courts.
This post is the first of what will be several on this topic, as the Perkins case and others still to come play out in court. It is a preliminary look at the administration’s targeting of what it terms “the significant risks and egregious conduct associated with law firms.”
Claim of Authority
The Perkins EO is grounded in the presidential authority to protect against threats to national security and, more broadly, to safeguard the “interests of the United States.” At oral argument in the Perkins case, counsel for the government Chad Mizelle, the attorney general’s chief of staff, sought to define more specifically the “interests of the United States” as issues concerning national security. It appeared to be his intention to avoid an open-ended presidential claim to take action in support of vaguely asserted U.S. “interests,” and instead to “tie” those interests to national security requirements.
The government argued in the Perkins case that the president's authority to issue an EO on this basis was “100 percent” his “right and prerogative” under Article II. It was unreviewable, and to question that authority would be to “upend Article II power as we know it.”
The “binding precedent” cited by the government in support of this position was Lee v. Garland, which involved a challenge to the revocation of the security clearance of an FBI employee who had failed three polygraph examinations. I will not address in detail the relevance or weight of this case. But it is noteworthy that the government did not cite the case only in support of the president’s “broad discretion” to control security clearances, but also—and more fundamentally—as the legal basis rooted in Article II for all the actions at issue in the case, such as the termination of contracts with government contractors who use Perkins Coie and the limitation placed on access to federal buildings for Perkins personnel.
The Paul Weiss EO relies more centrally on the widest range of “interests of the United States” without this “tie” to national security. The authority to impose these sanctions rests here on a president’s right to restrict U.S. government interactions with persons whose “activities … are not aligned with American interests.” Those interests are described as protecting against “the destruction of bedrock American principles.” Law firms, referred to as a group, and “global law firms” in particular, are alleged to have played an outsized role in “undermining the judicial process” and engaging in “activities that make our communities less safe, increase burdens on local businesses, limit constitutional freedoms, and degrade the quality of American elections.”
The Perkins Coie and Paul Weiss EOs at various points direct implementation of the orders as “permissible by law” or to the maximum “extent permitted by law.” Mizelle made no mention of this language in his oral argument. Nor would it have been consistent with his contention that the president had full and unreviewable constitutional authority for his actions.
The Motive of “Retaliation” and More
The significance of the attacks on these firms might be mistakenly viewed as pure personal retaliation for wrongs done to Trump by his opponents from 2017 to 2021. Of course, this motive would be in and of itself deeply problematic. But seeing Trump’s behavior this narrowly misses what is distinctive about his politics, what these cases mean for his personalist presidency, and why we will see more of the same.
Trump has always resorted to the demonization of political opponents. Well before the Russia investigation—the “witch hunt” and “hoax” in his terms—that has riled him, he specialized in personal attacks on the corrupt or un-American conduct of his adversaries. Following his failed Reform Party candidacy in 2000, Trump resumed his call for attention in political life by claiming that Barack Obama had not been born in the United States. Trump‘s allegations were cloaked in the language of “fraud,” a “con” that Obama may have “pulled” against the American people. In his 2016 candidacy, Trump referred repeatedly to Hillary Clinton as a “crook.” He accused Ted Cruz of rigging the Iowa caucus in 2016 and claimed that he was “crazy” and “unstable.” His campaign in 2016 alleged that his current Secretary of State Marco Rubio was “corrupt.”
This is how Trump rolls politically, even if this impulse or proclivity was exacerbated by the sense of victimization he carries from his first presidency. In a personalized presidency, the distinction between the person and the officeholder is erased and a president’s will, as moved by his grievances and the content of his politics, is indistinguishable from the national interest.
The government’s rejection of legal constraints on these actions by the president targeting law firms points toward virtually limitless applications. A president who has described his opponents as the “enemy from within … more dangerous than China, Russia and all these countries” has lodged that charge against prominent congressional Democrats, even more broadly to the Democratic Party that has “lost their minds” and is made up of “all lunatics.” The “Radical Left Lunatics who have worked so hard to destroy our Country”—or in the language of the Paul Weiss EO, those who are destroying “bedrock American principles”—are found among Democrats, “not from the side that votes for Trump.”
Could the administration impose sanctions through executive order on contractors any of whose employees have made contributions to Democrats, or whose counsel have done so? Or who are revealed by examination of the public record to have registered as Democrats? Under the administration’s theory, those judgments are exclusively within the president’s discretion: As Mizelle emphasized, it is “fundamentally the president’s prerogative, not reviewable by courts, … whether somebody is trustworthy with the nation’s secret[s].”
Process
It is far from clear how these EOs were produced, but indications are that they flew off of White House keyboards, and not ones used by lawyers. The administration stated in the Perkins oral argument that the DOJ is preparing guidance for the agencies. But remarkably, especially because its advocate in court is the chief of staff to the attorney general, the government could not give the court a rough timeline for when the guidance would be ready. And contrary to the supposed national security urgency stated in the EOs, Mizelle also could not confirm that the EO had even been circulated within the Department of Justice, much less to all agencies.
Much in the orders and related “fact sheets” seems to have been dictated by Trump, or by somebody well familiar with his standard rhetoric: “dishonest,” “unethical,” “dangerous,” “partisan games.” The substantive crafting of the orders also suggests a light, if any, hand, from lawyers. The assertion that there is something untoward in a legal challenge to a “popular” election law ought to have given any government lawyer pause. Popularity is not a measure of legality.
Another reason to doubt the involvement of lawyers is the conflation of the interest of the United States with that of the particular policies of this Trump presidency. The Trump administration invokes in the Perkins and Paul Weiss EOs the need to protect the “interests of the United States,” but the fact sheet accompanying the Perkins EO includes among actions adverse to those interests Perkins Coie’s “lawsuits against the Trump administration.” Legal challenges to Trump’s or any administration’s policies cannot be inconsistent with the national interest. To the contrary: Holding an administration accountable at law for its actions is quintessentially in the public interest. To assert otherwise is not a respectable or tenable legal argument that a responsible government lawyer would have counseled the administration to adopt.
Perhaps lawyers were not involved or not heeded: Neither possibility is reassuring.
Intended Effect
Does the administration expect to win these cases? They are on their way to losing the one against Perkins Coie, and the broadside against Paul Weiss may be destined to meet with a similar fate.
Win or lose, the administration can in the meantime achieve a “chilling” effect with this attack targeting the “significant risks and egregious conduct associated with law firms.” Message sent: Clients hoping to do business with the government are on notice that they will take their chances by retaining the wrong lawyers and firms.
In the Perkins oral argument, the government went out of its way to add to any chill. It refused, for example, to deny that counsel to Perkins Coie, Williams and Connolly, might be subject to an EO of this kind for merely representing this client. The court asked Mizelle whether the president, angered by Williams and Connolly’s representation of Perkins, could deem the firm “dishonest and dangerous” and target it with an EO of the same kind. Mizelle responded that “the president has the sole authority to determine if a person poses a national security risk such that certain actions need to be taken,” such as those directed at Williams and Connolly’s client, Perkins Coie.
An exchange between Mizelle and Judge Beryl Howell on the subject of the “redressability” of the injury to Perkins is also telling. The government said:
So fundamentally, even if [a TRO is entered,] there is no clear evidence that … these clients are going to say: You know what, we’re going to stay with Perkins Coie.
As opposed to saying: You know what, clearly, the president, at least personally, does not trust you with the nation’s secrets. And so regardless of how [the case] plays out, this is not really the law firm we want to use if we’re trying to get additional business from the federal government.”
In plain terms, the government is asserting that regardless of the judicial resolution of the lawsuit, the EO would harm Perkins—that clients may well conclude that the president’s “personal” lack of trust in the firm makes the firms that he dislikes a self-defeating choice of counsel.
Implications for Engagement with the Courts
The government had little time to prepare for the TRO hearing. The papers it will file in the coming days as the court prepares to rule on summary judgment will fill out the picture to some degree. But oral argument sheds some light on this question: Will the administration defy courts, or just engage in foot-dragging and evasive tactics to prolong the intended chilling effect of unlawful executive action?
Mizelle did his best to feint and dodge. He insisted that the executive order was not ripe: All reported harm was “speculative,” all “bogymen” and “ghosts.” Yet, in a head-spinning move, he could not help but concede that the Perkins Coie EO would “have an impact and have caused an injury, certainly.” He advised the court that DOJ was working on guidance, expeditiously, but could not comment on the timetable. And guidance on at least some issues would be left to agency discretion, and who knows what harm more than 90 agencies might or might not do to adversely affect the interests of Perkins Coie and those of its clients?
The government danced around a specific example of ongoing concrete harm to Perkins. As averred by the firm, an attorney in the DOJ Fraud Section canceled a meeting with Perkins Coie because of the EO. Mizelle responded that he could not “test” the allegation. He did not know who the attorney was; he could not know what happened; one lawyer could not speak for all of the DOJ. The attorney, after all, could have been “mistaken.” His supervisor may have disagreed that the cancellation was appropriate.
Yet the Perkins account of this cancellation was quite specific about the date on which the DOJ attorney informed the firm of his decision to cancel the meeting. Mizelle did not explain why, with this information and the name of the matter, he and his team could not have called the head of the Fraud section, and determined who, on that specific day, had advised Perkins Coie that the meeting was off. Not hard.
And then two days after the hearing, right after the entry of the TRO in Perkins Coie’s favor, came the Paul Weiss order. The administration is doubtless now poised to maintain that this is a different case with different facts, its aim now to curb the “egregious conduct of global law firms.” The gaming of the court will go on.
Conclusion
Enough has happened in the last week to cast light on this president’s claims of authority to banish from interactions with the federal government, even from its properties, persons singled out for a vague and broad range of reasons. He may target those he deems unethical or dishonest, or—rejecting any differences between the two—antagonistic to the administration’s policies or the “interests of the United States.” His administration will look to game the legal system to achieve maximum practical effect before resolution of the legal issues.
Trump’s motive in these specific cases is retaliatory, as the court concluded in issuing the TRO, but it is deeply rooted in his politics—a politics of sorting out who is with him, and who is against him, and of denying legitimacy to his foes. The determination of who is corrupt, unethical, or dishonest is his alone to make, on the basis of which he can impose severe sanctions and achieve intimidation through his exercise of presidential power. In a divinely sanctioned mission, he can violate no law when trying to “save the country.”
Williams and Connolly counsel to Perkins Coie, Dane Butswinkas, responded aptly at the hearing: “That is a different Constitution from the one I am familiar with.”