Punishing lawyers and eroding justice - the cost of defending the unpopular

President Trump has wasted no time in following through on his vow of retribution to punish law firms for representing his political enemies. During an interview on Fox's Sunday Morning Features with Maria Bartiromo, Trump recently said, "We have a lot of law firms that we're going to be going after, because they were very dishonest people."  

In 2022, the DOJ appointed Special Counsel Jack Smith to investigate possible criminal activity by Trump. Three years later, on Feb. 25, Trump issued a White House memorandum for the "Suspension of Security Clearances and Evaluation of Government Contracts" for "members, partners, and employees of the law firm Covington & Burling LLP who assisted Special Counsel Jack Smith." 

On March 6, Trump issued Executive Order (EO) 14230 (90 Fed. Reg. 11781) entitled "Addressing Risks from Perkins Coie LLP." It targets the law firm Perkins Coie for diligently representing its clients, which Trump sweepingly castigates as decades of "dishonest and dangerous activity" and for undermining "democratic elections, the integrity of our courts, and honest law enforcement." 

The "fact sheet" accompanying the EO states, among other things, that Perkins Coie has filed lawsuits against the Trump Administration, including "partisan misuse of sensitive data during investigations targeting President Trump."  

The EO expansively 1) bars the firm's attorneys from holding security clearances; 2) instructs federal agencies to terminate contracts with the firm; 3) directs that firm employees be limited in access to Federal Government buildings when such access threatens national security "or otherwise be inconsistent with the interests of the United States"; and 4) refrain from hiring firm employees absent a waiver from the head of the agency. The EO superficially attempts to avoid legal challenge by concluding: "This order shall be implemented consistent with applicable law."

Perkins Coie responded with alacrity. On March 11, it filed a lawsuit Perkins Coie v. U.S. Department of Justice, et al. (1:25-cv-00716 D.D.C.). The firm requests the EO be declared unconstitutional "as violative of the Separation of Powers and Article II" and of violating "the First (Free Speech and Association), Fifth (Due Process), and Sixth (Right to Counsel)" Amendments. It sought immediate injunctive relief against the EO pending a preliminary and permanent injunction.

Following a hearing on March 12, Judge Beryl Howell temporarily barred the Trump administration from enforcing the EO. She said, "it sends little chills down my spine" to hear arguments that a president can punish individuals and companies like this. The firm's reputation has been damaged, and it has suffered significant financial losses as a result of the EO.

The Supreme Court has recognized that government officials cannot coerce private parties or punish or suppress views that it disfavors. Many correctly believe the EO is dangerous as well as unconstitutional. The legal system depends on the willingness of attorneys to represent clients without fear of retribution. The EO is a menacing message to attorneys nationwide - "play by my rules or suffer the consequences."    

A lawyer has a duty to vigorously and competently represent his or her clients. This duty stretches back to the Nation's founding. In 1770, British soldiers killed five citizens in what would become known as the Boston Massacre. John Adams, America's second President (1797-1801), honorably risked his family's livelihood to defend the British soldiers charged with murder. Adams believed that no person in a free country should be denied the right to counsel and a fair trial. Near the end of his life, he believed that providing that defense was one of the "best pieces of service to my country." 

The quote displayed at the United States Holocaust Memorial Museum in Washington, D.C. is a more recent statement about the failure to resist tyranny:

First they came for the socialists, and I did not speak out - because I was not a socialist.

Then they came for the trade unionists, and I did not speak out - because I was not a trade unionist.

Then they came for the Jews, and I did not speak out - because I was not a Jew.

Then they came for me - and there was no one left to speak for me.

The EO is more than an unconstitutional assault on a single law firm. It is an attack on the rule of law and the judicial system by attempting to prevent certain lawyers and certain viewpoints from reaching a court at all. Lawyers have a duty to zealously represent their clients, who may be unpopular or despised, within the bounds of the law without fear of retribution. It's what lawyers do.