One of the Trump administration's fights against Big Law came to a dramatic head when a federal judge ruled for for Perkins Coie, the law firm challenging Trump's executive order revoking access to federal buildings and other punishments for their diversity, equity, and inclusion efforts.
A Peek at Perkins
Those of you in Big Law will probably recognize the name Perkins Coie, especially if you’re on the West Coast. Over a decade old, the firm is international, with thousands of employees across two dozen cities and about 1,200 lawyers. The firm has consistently been recognized as one of the 50 largest law firms in the United States and has received regular accolades for excellence from various legal organizations.
Current and prior attorneys at Perkins Coie come from all sides of the political spectrum. They have worked under administrations of both major political parties and reflect diverse political affiliations. Most Perkins attorneys are not politically active. Despite that, the firm’s representation extends to significant political and election-related matters. Generally speaking, Perkins has represented both party-affiliated and non-partisan clients in litigation over election laws.
A Thorn in Trump’s Side?
In 2016, Marc Elias and other former members of Perkins Coie's Political Law group represented Hillary Clinton during her presidential campaign against Trump. That’s when the firm first caught Trump's eye. Trump not only criticized Perkins’ work in public statements, but he also filed a lawsuit against them and others, alleging conspiracy related to Russian collusion narratives. That lawsuit was dismissed with prejudice.
As part of the representation for Clinton, Perkins attorneys engaged Fusion GPS for opposition research services. Elias left in 2021, and none of the firm's attorneys involved with Fusion GPS have been employed by the firm for at least the past three years.
Another former attorney, Michael Sussmann — retained due to his cybersecurity expertise — was acquitted on charges related to alleged links between the Trump Organization and Russia after being indicted by a Special Counsel appointed during Trump's first administration.
In the 2020 presidential election cycle, Perkins Coie represented numerous clients opposing then-candidate Trump's challenges to election results. These clients prevailed in nearly all such challenges brought by Trump's campaign. During that same cycle, Perkins also successfully defended existing voting laws against various legal challenges on behalf of its clients.
Trump’s Executive Order Aimed at Big Law
Not long after coming back into power, Trump issued an Executive Order (EO 14230) titled "Addressing Risks from Perkins Coie LLP." Despite the title, the Order was not limited to the named firm, but much broader, focusing on the DEI practices of major law firms generally. Trump mentioned that approximately 15 firms might be reviewed, though specific firms were not named.
The EO called for the investigation of law firms that do business with federal entities for compliance with non-discrimination laws. It instructed the chair of the Equal Employment Opportunity Commission to review the practices of major law firms to ensure compliance with Title VII of the Civil Rights Act of 1964 to see if these firms had a habit of reserving positions, promoting individuals, or providing access to clients and events on a discriminatory basis.
In the Order, Trump made an example of Perkins Coie, alleging racial discrimination within the firm and citing past hiring and promotion practices. It didn’t just point to the partners or even the attorneys, but encompassed everyone, all the way to mailroom attendants at the firm.
The Order directed adverse actions targeting security clearances held by Perkins employees, limiting their access to federal buildings or engaging federal officials. It also placed restrictions on Perkins for hiring back any of its former employees--like the people who’d really rubbed Trump the wrong way.
Executive Order Declared Unconstitutional
The firm took the Department of Justice along with other federal agencies to court, arguing that Trump’s order was retaliatory and aimed to punish them for representing or otherwise associating with Trump’s “perceived political enemies.” Perkins immediately sought a temporary restraining order to halt the enforcement of certain sections of the Order, and U.S. District Court Judge Beryl Howell quickly granted it, pending litigation on the merits.
Perkins argued that the Order violated the separation of powers, the firm’s Fifth and First Amendment rights, and its clients’ Sixth Amendment right to counsel. Trump moved to dismiss the lawsuit, arguing that the Order was a legitimate exercise of executive power to manage government contracts and employment practices.
Last Friday, Judge Howell ruled in favor of Perkins Coie. She issued a 102-paged order that colorfully quoted Shakespeare’s Henry VI: “In a cringe-worthy twist on the theatrical phrase ‘Let’s kill all the lawyers,’ EO 14230 takes the approach of ‘Let’s kill the lawyers I don’t like,’ sending the clear message: lawyers must stick to the party line, or else.”
But apart from being inspired by the Bard himself, there were a lot of legal reasons the judge took issue with the Trump’s executive antics.
Judge Howell agreed with Perkins that the Order was unconstitutional on multiple grounds.
She found that the Order constituted unlawful retaliation against the firm for engaging in First Amendment protected activities (such as representing clients in litigation against Trump and his administration) and advocating for diversity and inclusion. The judge noted that the Order's purpose and actions were motivated by Trump's disapproval of Perkins Coie's political associations and speech, thus amounting to viewpoint discrimination and retaliation. Additionally, one part of the Order required government contractors to disclose any business with Perkins Coie; the judge found that this violated the rights of the firm and its clients to engage in private associations under the First Amendment.
Judge Howell also found that the Order violated both the firm's and its clients' rights by interfering with their ability to choose and consult legal counsel, infringing upon both Fifth and Sixth Amendment protections. Additionally, she found that the Order was “impermissibly vague” because it failed to provide clear standards for the conduct it deemed prohibited, leading to arbitrary enforcement. This violated due process rights.
Trump’s Taunting
Trump himself contributed to the loss. Judge Howell found evidence of retaliation in large part from the fact that Trump was boasting about his success.
The judge found that the Order treated Perkins Coie differently from other similarly situated law firms without a rational basis, violating the Fifth Amendment's guarantee of equal protection under the law. She compared how the Trump administration treated other law firms compared to how they treated Perkins. She found that firms that kowtowed to Trump’s demands were spared, either because the government withdrew their orders issued against those firms (like Paul Weiss) or never issued them in the first place.
Howell pointed to the fact that Trump boasted about this practice and its payoff last month. She quoted the president saying, “Have you noticed that lots of law firms have been signing up with Trump? $100 million, another $100 million, for damages that they’ve done…they’ve given me a lot of money considering they’ve done nothing wrong.” Although the judge admitted that although the exact terms of these deals were “somewhat fuzzy,” still, “what is clear is that the Trump White House has publicly touted the negotiated deals reached with various law firms, and equally clear is that those deal-making firms have been spared.”
Based on all these constitutional violations, Judge Howell granted Perkins Coie summary judgment. She issued a permanent injunction against the enforcement of the executive order, declaring it null and void.
Related Resources:
- What Are Law Firms Doing About Retaliation From the White House? (FindLaw's Practice of Law)
- Harvard Gathers Notable Conservative Lawyers To Battle Trump (FindLaw's Practice of Law)
