It’s not just hyperbole. From jump, commentators called President Donald Trump’s efforts to target Biglaw firms with Executive Orders unconstitutional. After all, they were designed to extract a financial penalty for supporting causes or cases that angered the president in a near-textbook case of retaliation.
And, thus far, every firm that had the actual courage to challenge these EOs in court has successfully challenged the orders as unconstitutional. Susman Godfrey joined Perkins Coie, Jenner & Block, and WilmerHale as the latest firm to notch a victory against Trump.
On Friday U.S. District Judge Loren AliKhan issued a decision, available below, granting Susman’s motion for summary judgment, writing, “The order was one in a series attacking firms that had taken positions with which President Trump disagreed. In the ensuing months, every court to have considered a challenge to one of these orders has found grave constitutional violations and permanently enjoined enforcement of the order in full.”
AliKhan found the EO was a violation of the First Amendment, writing “As the court has laid out, the activities that the Order contemplates—which include litigation concerning the 2020 election, a donation to GLAD law, an academic prize that is not covered by Title VII, and general statements about diversity on Susman’s website—are all plainly protected by the First Amendment. Defendants cannot target Susman for those activities simply because it does not like them.”
The judge also found the EO violated the firm’s due process rights, because it “interferes with the right of the firm and its attorneys to pursue their chosen profession; harms the firm’s reputation; and deprives the firm of its protected property interest in contracts with its clients.”
“The aforementioned liberty and property interests were all taken without any process. The Constitution demands more; specifically, that Susman has the ‘right to know the factual basis for the action’ and have ‘the opportunity to rebut’ it. Susman was afforded neither. The firm was not given prior notice of the Order, learned of it only when it was announced on live television, and was not provided the opportunity to clear its name.” [Internal citations omitted.]
A firm spokesperson had the following comment, “The Court’s ruling is a resounding victory for the rule of law and the right of every American to be represented by legal counsel without fear of retaliation. We applaud the Court for declaring the administration’s order unconstitutional. Our firm is committed to the rule of law and to protecting the rights of our clients without regard to their political or other beliefs. Susman Godfrey’s lawyers and staff live these values every day. We are also deeply appreciative of those who supported us in this lawsuit, including our superb legal team at Munger, Tolles & Olson and the thousands of lawyers, former judges, law professors, and law students who submitted amicus briefs.”
The legal arguments against the EOs have been pretty slam dunk… which is certainly fanning some of the frustration directed at the nine firms that capitulated to Trump.
Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Mastodon @[email protected].