Above the Law: “Last week, Perkins Coie was called out by the Trump administration for retribution. They were the subject of an executive order that purported to revoke security clearances for employees of the firm, called for the termination of government contracts with the firm, and called for a review of the DEI policies of Perkins Coie (and other unnamed firms). We learned the firm lawyered up — with Williams & Connolly — and today they dropped a complaint…the filing goes for the jugular. I mean — this is from paragraph 1 of the complaint:

The Order is an affront to the Constitution and our adversarial system of justice. Its plain purpose is to bully those who advocate points of view that the President perceives as adverse to the views of his Administration, whether those views are presented on behalf of paying or pro bono clients. Perkins Coie brings this case reluctantly. The firm is comprised of lawyers who advocate for clients; its attorneys and employees are not activists or partisans. But Perkins Coie’s ability to represent the interests of its clients—and its ability to operate as a legal-services business at all—are under direct and imminent threat. Perkins Coie cannot allow its clients to be bullied. The firm is committed to a resolute defense of the rule of law, without regard to party or ideology, and therefore brings this lawsuit to declare the Order unlawful and to enjoin its implementation…

Legal filings aren’t often a fun read, but this one delivers. It goes hard on the Trump administration’s violation of separation of powers: “[T]he Order’s peculiar title betrays its oddity as an Executive Order, for its purpose is not executive in nature. Rather, the Order reflects a purpose that is judicial—to adjudicate whether a handful of lawyers at Perkins Coie LLP engaged in misconduct in the course of litigation and then to punish them.” And it just goes on — calling out the “retaliatory aim” which is “intentionally obvious to the general public and the press” and seeks “to chill future lawyers from representing particular clients.”..

Because the Order in effect adjudicates and punishes alleged misconduct by Perkins Coie, it is an unconstitutional violation of the separation of powers. Because it does so without notice and an opportunity to be heard, and because it punishes the entire firm for the purported misconduct of a handful of lawyers who are not employees of the firm, it is an unconstitutional violation of procedural due process and of the substantive due process right to practice one’s professional livelihood. Because the Order singles out Perkins Coie, it denies the firm the equal protection of the laws guaranteed by the due process clause of the Fifth Amendment. Because the Order punishes the firm for the clients with which it has been associated and the legal positions it has taken on matters of election law, the Order constitutes retaliatory viewpoint discrimination and, therefore, violates the First Amendment rights of free expression and association, and the right to petition the government for redress.