On March 2, the Trump administration raised a white flag in its ongoing campaign to bring some of the nation’s best law firms to their knees. When Perkins Coie, WilmerHale, Jenner & Block, and Susman Godfrey fought back, they won a string of victories in federal district courts.
A Brief History
It seemed the battle was over when the Administration announced it was dropping its appeal of those rulings. MS Now’s Mary McCord suggests that dismissing the appeals “would have been blessed by Deputy Attorney General Todd Blanche…and Attorney General Pam Bondi.” She argues that “[t]hey knew…that the blacklisting orders were textbook First Amendment retaliation.”
Government Backtracks
Critics of the president crowed at the news of the administration’s capitulation. Typical was Maryland Democratic Representative Jamie Raskin, who said, “Today, those firms forced Trump to back down and abandon his blatantly unconstitutional effort to punish lawyers, clients, and causes because Trump disagrees with their speech.”
Another Reversal
But the celebration was short-lived. One day after its prior announcement, the Trump administration returned to the United States Court of Appeals for the District of Columbia Circuit, asking the court to allow the case to proceed.
The Administration’s Claims
Even for the mercurial president and his colleagues, that was a head-spinning reversal. While no one knows exactly why it happened, McCord argues that “[w]hatever the specific motivation, there is no reason to think that Justice Department leadership saw the legal merits of the cases change overnight.”
“Instead,” she adds, “the department has embarrassed and exposed itself yet again.”
The Administration’s Brief
Things went from bad to worse on March 6 when the administration filed its legal brief explaining why the district court decisions should be overturned. The D.C. Circuit should make short work of the administration appeal.
Misguided Claims
The New York Times is right to say that “The orders targeting law firms are one of Mr. Trump’s most audacious…attempts at subduing potentially powerful adversaries.” And a look at what he is telling the court of appeals suggests either desperation or a lack of seriousness.
Constitutional Concerns
His claims are meritless. This is not the first time that Trump has made meritless claims in court. As a Florida judge put it in describing one of Trump’s earlier lawsuits, “This case should never have been brought. Its inadequacy as a legal claim was evident from the start. No reasonable lawyer would have filed it.”
The Constitution
In the case of the president’s executive orders targeting law firms, from the moment they were issued, it was clear that they were unconstitutional. Nothing has happened to change that.
First Amendment Rights
As McCord explains, the executive orders “violated the First Amendment because they retaliated against the law firms for representing people and causes President Donald Trump dislikes.” That may be why the administration’s brief made outrageous assertions and launched a broadside, impugning the integrity of the judges who had stopped the administration from taking action against the law firms.
The Brief
In a series of declarative sentences, the brief states, “Courts cannot tell the president what to say. Courts cannot tell the president what not to say…. Ignoring those constraints, the district courts below bent over backwards to facially invalidate every section of four executive orders without considering their plainly constitutional aspects and applications period.”
The Government’s Argument
It alleges that the appeal is “about lower courts encroaching on the constitutional power of the President….” Of course, we have heard this all before; attacking left-wing judicial “insurrection” has become standard fare since the president returned to the Oval Office.
Judicial Independence
What makes this occasion newsworthy, as The New York Times observes, is “[t]he tone and language of the brief…open[ing] an argument to federal appeals court judges by attacking those judges’ lower court colleagues.”
Government-Speech Doctrine
Beyond that, the government is asking the Court of Appeals to treat what it calls “precatory” language in the President’s executive orders as “simply the President’s speech.” Such language refers to parts of a legal document that express a wish or hope rather than taking the form if binding commands.
The First Amendment
The administration contends that the president has First Amendment rights, and “the judiciary has no authority to silence him.”
A Response from the ACLU
Silencing Donald Trump? When has anything stopped him from speaking and saying whatever is on his mind?
The Executive Orders
Recall what some of the precatory language in the president’s executive orders said. The order involving Perkins Coie started by asserting that “The dishonest and dangerous activity of the law firm Perkins Coie has affected this country for decades…. In addition to undermining democratic elections, the integrity of our courts, and honest law enforcement, Perkins Coie racially discriminates against its own attorneys and staff and against applicants….”
The Administration’s Brief
The executive order went on to say that “their disrespect for the basic principle of equality represents good cause to conclude that they neither have access to our nation’s secrets nor be deemed responsible stewards of any federal funds.”
A Word from Justice Alito
The administration’s brief to the appellate court argues that “Presidents have long used the preambles of executive orders to express their own views. Everyone recognizes this is the president’s own speech.” It asserts that “Courts are on dangerous ground when enjoining the speech of coequal branches of government.”
The First Amendment
But as the American Civil Liberties Union observes, “The First Amendment doesn’t protect the rights of public employees to say whatever they want when speaking in their official capacity…. Their public position imbues their speech with more influence than the average citizen — as the saying goes, with great power comes great responsibility.”
Government-Speech Doctrine
While the ACLU acknowledges that “[w]hether the president has any First Amendment rights when speaking in his capacity as president has never been established,” it argues that “[a]t a minimum, because of his role and authority, the president does not have the same freedom of speech as an ordinary citizen.”
A Conclusion
Under Supreme Court precedent, “Once a stream of information is labeled governmental, the state may completely control it and exclude any contrary opinion….” That is why it needs to be exercised with care.
Judicial Independence
When President Trump says that “the dishonest and dangerous activity of the law firm Perkins Coie has affected this country for decades…” or that it is guilty of “undermining democratic elections…” he is doing more than simply expressing a viewpoint. He is activating the machinery of government to turn his words into deeds.
Free Speech
As his campaign against Perkins Coie, WilmerHale, Jenner & Block, and Susman Godfrey shows, he is much more likely to use that machinery to curb their First Amendment rights than they are to silence him. Whatever one thinks of Donald Trump, it is simply bizarre to read a legal brief portraying him as the victim of the law firms’ efforts to defend themselves.
A Final Thought
It is another moment in which the president shows just how worrisome it is, as The Guardian’s Jonathan Freeland notes, when we are governed by “a man without shame.”
Constitutional Law
Law Practice
Speech and Religion
Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. Views expressed do not represent Amherst College.