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Two federal judges in separate rulings late Friday froze parts of President Donald Trump’s executive orders targeting the law firms Jenner & Block and WilmerHale, both firms linked to the Robert Mueller investigation Trump has sought to punish.
There have now been direct and separate rebukes by three judges of the Trump administration’s retaliatory policies toward law firms. All three judges have said core constitutional protections are likely violated by the orders – for people and companies to choose their own attorneys and for firms to be shielded from political retribution because of their speech.
The temporary restraining order in the Jenner & Block case, announced by Judge John Bates at the end of a hastily scheduled Friday hearing, pauses parts of the order instructing agencies to terminate contracts with the firm and its clients, as well as the order’s directives seeking to limit the firm’s access to federal officials and buildings.
Bates said those directives, as well as another he paused aiming to crack down on former Jenner employees being hired for government jobs, were likely unconstitutional because they retaliated against protected speech and were a form of view point discrimination. Language in Trump order’s expressing his desire to sanction the firm for pro bono work for causes the president disagrees with was “disturbing” and “troubling,” Bates said.
The Jenner & Block hearing began minutes after a different judge in the same courthouse heard a similar request from WilmerHale, which was also targeted by Trump in an executive order issued this week.
Judge Richard Leon issued his order late Friday blocking parts of Trump’s executive order that denied attorneys for the law firm WilmerHale access to federal buildings and retaliated against firm clients with government contracts.
The measures in the executive order are “threatening plaintiffs’ very existence,” the judge said.
“There is no doubt this retaliatory action chills speech and legal advocacy, and that is qualified as a constitutional harm,” the judge wrote Friday night, a few hours after the hearing.
Leon declined to step into the White House decision to suspend firm lawyers’ security clearances, saying those types of decisions are made by the executive branch.
“We appreciate the court’s swift action to preserve our clients’ right to counsel and acknowledgement of the unconstitutional nature of the executive order and its chilling effect on the legal system. The court’s decision to block key provisions of the order vindicates our and our clients’ foundational First Amendment rights,” the firm said in a statement Friday night.
In his executive orders, Trump also said he was taking aim at Jenner & Block and WilmerHale because of their work on political causes he disagreed with and because of their ties to the Mueller probe, as both firms previously or currently employed veterans of that investigation.
Leon, an appointee of former President George W. Bush, expressed concern at various points in the earlier hearing about how the president’s order could cause some clients to go elsewhere for legal representation if they had concerns with how effectively WilmerHale’s attorneys could provide legal services.
Trump’s order directs federal agencies to suspend the security clearances and access to federal buildings of lawyers for the law firm and to curtail hiring people from the firm. Additionally, it directs agencies to review any contracts they may have with the firm and make efforts to terminate them.
“Wouldn’t that uncertainty have a chilling effect?” Leon asked DOJ attorney Richard Lawson at one point, adding that the order was “like a sword of Damocles hanging over (the firm’s) head.”
Leon seemed particularly concerned with a section of the executive order that barred the firm from entering government buildings.
“This is a government building. The Supreme Court is a government building,” Leon pointed out.
When Lawson said he couldn’t speak to whether prospective clients of WilmerHale would worry about whether their lawyers could enter courthouses, the judge appeared incredulous.
“Have you practiced law? Have you had clients?” he asked. “Then use your common sense.”
Earlier this month, a third judge in the courthouse issued an order temporarily blocking another executive order from Trump that went after the law firm Perkins Coie.
In court on Friday, Clement told Leon that those three cases “are some of the most important cases for the First Amendment and for the rule of law,” adding later that barring certain law firms “is not the tradition in our country.”
“If lawyers are looking over their shoulder to decide if they should take the case or if they do, deciding ‘How do I argue this? Do I walk on eggshells … or defend my client zealously?’” Clement said.
This story and headline been updated with additional reporting.
