I wrote about the hearing regarding the lawsuit filed by the law firm, Perkins Coie here. The Judge was clearly flabbergasted by the Executive Order targeting two big law firms. She asked at that hearing if this EO was not like something from the Joe McCarthy era? Well, Judge Howell has now issued her decision in the matter of Perkins Coie v. Dept. of Justice, No. 25-716-BAH (D.C. D.C. May 2, 2025). She has granted the two law firms’ motion for summary judgment. See her decision here.

Its is very rare for a U.S. District Judge to grant a motion for summary judgment this early in the life of a lawsuit. Summary judgment, as the name suggests, is a quick decision – one reached without benefit of a trial. In this instance, the judge issued her decision even before the discovery process has started. That is rare enough to compare to snow in July.

Kill All The Lawyers

But, it was an easy decision for the Judge. The President’s EO has so many holes in its premise and legal reasoning. It seems likely that it was not drafted by lawyers. In the very first paragraph of a 100 page opinion, the judge refers to the well-known phrase in Shakespeare’s play, Henry VI. “The first thing we do, let’s kill all the lawyers.” The speaker of that phrase is a rebel leader who wants to make himself king. As the rebel leader – and Shakespeare – knew, the first step in any rebellion is to remove those who implement the rule of law.

The judge finds that the plaintiffs, the two law firms, Perkins Coie and Wilmer Cutler Pickering Hale and Dorr, are entitled to summary judgment on all their claims: 1) First Amendment free speech protection, 2) compelled disclosure in violation of the First Amendment, 3) denial of equal protection in violation of the Fifth Amendment, 4) denial of the clients of the two firms to pick their lawyers in violation of the Fifth and Sixth Amendments, 5) denial of due process in violation of the Fifth Amendment, 6) that the EO is unconstitutionally vague.

It should be obvious that a law firm may express its political views as it wishes. Yet, the EO and Pres. Trump’s public statements made it clear that the two firms were targeted largely because they supported politicians, such as Hillary Clinton, and views, such as opposing many of the electoral lawsuits filed in 2020 regarding Trump’s failed candidacy. The court noted that all but one of those election lawsuits lost.

The EO was drafted so poorly as to approach farce. It claimed in Sec. 1 that the law firms engaged in discrimination. Yet, no hearing, no finding on that issue was ever held. The EO pointed, instead, to the support of the two firms for various EEO type initiatives. Those initiatives verbally advocated greater diversity in law firm hiring. As the court noted, even if the court could find that such actions amounted to discrimination, the EO specifically targets not implementation of diversity hiring, but public support of such hiring. That is, on its face, the EO targets public speech. The DOJ compounded this error by claiming in its pleading that these accusations were not “seriously contested.”

One frequent hallmark of the current DOJ is it’s simple poor advocacy skills. Of course, these accusations were contested. It is disingenuous to claim otherwise. The law firm surely admitted to the statements. But, it also surely disputed that such statements rendered them guilty of discrimination.

All Employees

The court noted that Pres. Trump frequently expressed in public his ire at the firm and at Marc Elias in particular. But, Elias left the firm in 2021. Yet, the EO would cause harm to all the employees of Perkins Coie, which would include some 2500 employees, of whom about 1200 were lawyers. This number included about 24 persons with security clearances. About 12 of those held their clearances from prior military or government service.

One section specifically forbade any government agency from hiring any former Perkins Coie employee from without authorization. This provision does not explain the duration of such a prohibition. Does it apply to persons going directly from Perkins Coie to the government, or some time later? This provision, said the Judge amounts to a ban on any current or former employee from the two law firms – with no hearing or process to arrive at such a draconian step.

Compelled Disclosure

The EO requires government contractors to disclose any business they do with Perkins Coie. The law firm engages in much litigation. That means its business contacts cast a wide net. Compelled disclosure on association with groups engaged in advocacy acts as a restraint on freedom of association and free speech. The government may prevail on such compelled disclosure, but only if they satisfy a high standard for that restriction. DOJ acknowledged that high bar for such restrictions. But, in its pleading, it completely disregarded that the burden to meet that high bar falls on the government, not on the law firm. It made no showing of how the perceived offenses of the two law firms required compelled disclosures.

The court noted the obvious: that other law firms engaged in election lawsuits, but have not been targeted,. The EO amounts to a “class of one.” It targets one law firm by name, not a class of law firms or persons who engaged in given conduct. This violates the equal protection clause of the Fifth Amendment. DOJ mentioned the Mansfield Rule, which seeks to diversify law firms. Perkins Coie and Wilmer Cutler issued public statements supporting the Mansfield goal. But, so did 358 other law firms. The government offered no explanation for targeting the two firms, but not the other 358 law firms. As the court noted, “Judges are not required to exhibit a naiveté from which ordinary citizens are free.” United States v. Stanchich, 550 F.2d 1294, 1300 (2d Cir. 1977) (Friendly, J.). Whenever a Judge points out they are not required to ignore the obvious, a litigant has truly lost.

Bills of Attainder

The court mentioned bills of attainder in a lengthy footnote. Bills of attainder were used in colonial America to target colonists who had incurred the ire of the British government. Bills of attainder are essentially an act of government finding persons guilty of some offense with no process. Bills of attainder are prohibited twice in the U.S. Constitution. Those two sections address Congressional powers. There is no similar provision regarding Presidential powers.

The court notes that this EO is similar to a bill of attainder. It finds the two law firms guilty of perceived offenses with no hearing or trial. The court does not directly address the issue since the plaintiffs did not present the issue as a claim. But, if Congress cannot pass a bill of attainder and if the President must enforce the laws passed by Congress, it would seem that neither may the President engage in bills of attainder.

In the end, the court was forced to do a lot of research and draft a book-length decision, but in the end, this was an easy decision for the Judge. And, I have to ask, what lawyer would accept defending such a case?

It is just totally weird that the Trump administration is targeting major law firms. I wrote about that odd new practice here. Pres. Trump has now targeted a handful of law firms. Two of those firms, Perkins Coie and Wilmer Cutler Pickering Hale and Dorr, have filed lawsuits seeking protection from these strange Executive Orders. Not surprisingly, the Federal judges hearing those matters are very skeptical about the President’s EOs. U.S. DistrictJudge Beryl Howell asked DOJ in one hearing:

“Is this a throwback to the McCarthy era, the Red Scare era?” 

One of the acts of retribution taken by those EO’s is suspension of security clearances. The EO’s generally suspend the security clearance for 2,000 attorneys due to the lawful actions of one person. In one hearing, Judge Howell asked the question – after reviewing a Declaration from a former Department of Defense official who oversaw security clearances. That DOD official noted that a blanket suspension of clearances “harkens” back to the days of the Red Scare when such actions were taken. The official was likely explaining that lifting clearances for hundreds of lawyers at a time is just very odd.

In a separate hearing U.S. District Judge Richard Leon, the DOJ lawyer argued that suspending security clearances is a valid exercise of the executive branch. Judge Leon, replied that it appeared to him to be “pretty clear” this was retaliation for free speech, not a valid executive function. See ABA Bar Journal report here. It is unusual for a Federal Judge to make such clear remarks during the hearing. That suggests it is indeed clear these Eos amount to retaliation.

The Above the Law blog has created a BigLaw Spine Index to track how the big firms are responding to Pres. Trump’s unheard of EOs. See that Index here.

There are many pitfalls with forced arbitration. Georgia and John McGinty of New Jersey ran into one of those harsh pitfalls. The couple was injured in a crash of an Uber car. They sustained rib and spine fractures in March, 2022. Mrs. McGinty had lumbar and spine fractures. She had many surgeries and was unable to work for more than a year. Mr. McGinty had fractures in his left arm and wrist. He still has not regained complete use of his left wrist. Mr. McGinty said they are in constant pain every day.

But, in January, 2022, two months before the Uber collision, the McGinty’s daughter ordered pizza using Uber Eats. Uber claims someone – perhaps the daughter – checked the box, “I have reviewed and agree to the Terms of Use.” The McGinty’s say their daughter checked the box, even though it was Mrs. McGinty’s Uber Eats account.

Permission

The lower court denied Uber’s motion to force the McGinty’s claim into arbitration. That court said the Terms of Use did not clearly distinguish between court and arbitration. But, on appeal, the court of appeals sided with Uber. The higher court said Mrs. McGinty gave her daughter permission to sign for her when she handed the daughter the phone. It said the agreement did not need to explicitly describe the difference between court and arbitration.

It is a strange decision, holding that an agreement not directly tied to the automobile crash in March had some link to ordering pizza during the prior January. Too, it is rare indeed that a 12 year old daughter could sign a binding agreement. The McGintys plan to appeal. But, the appellate decision was unanimous. See the New York Times report here for more information. Forced arbitration is an insidious and persistent intrusion on a person’s right to seek just compensation for harm sustained.

It is a strange world indeed in which we find ourselves. The Department of Justice, once the exemplar for competence and professionalism, now hires lawyers to political posts who do not respect the courts. At a recent hearing before Judge Paula Xinis regarding Kilmar Abrego Garcia, the DOJ attorney sat while speaking to the Judge. It boggles the mind that any lawyer would sit while addressing any judge. But, for a DOJ lawyer to speak on weighty matters to a U.S. District Court judge while remaining seated is unfathomable. Federal court is infamous for requiring lawyers to use the lectern when speaking to the judge, to a witness, to anyone.

Drew Ensign is a political appointee to DOJ. He has replaced Erez Reuveni on the Abrego Garcia case. Reuveni formerly served as the chief Immigration attorney for DOJ. Mr. Reuveni admitted to shortcomings in his case and was fired for it. Now, we get Mr. Ensign – who sits while speaking to a U.S. District Judge. See CNN news report here.

Disrespect

Tired of this constant disrespect for trial judges, the Fourth Circuit court of Appeals has issued a stunning decision regarding the Abrego Garcia case. In a unanimous opinion, the Fourth Circuit rightly expresses concern about the “constant intimations of illegitimacy” cast by U.S. government officials toward Judges. “The Judiciary will lose much from a public perception of its lawlessness and all of its attendant contagions,” warned the Fourth Circuit. The opinion even describes Judge Xinis as a “fine district judge.” It is very rare for a court of appeals to praise a lower court judge. The court of appeals is clearly trying to bolster her status in the eyes of a Department of Justice and government officials who do not respect the judiciary.

Stashed Away

The Fourth Circuit, one of the more conservative courts of appeals in the country, is very concerned about the Abrego Garcia case. The court notes early in the decision:

“It is difficult in some cases to get to the very heart of the matter. But in this case it is not hard at all. The government is asserting its right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundation of our constitutional order.”

The panel of three judges then notes the government then claims it can do nothing because it no longer has custody of the resident. The court is appalled: “This should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear.”

The court acknowledges that Mr. Abrego Garcia might be a member of the gang, MS-13. But, adds the court, perhaps he is not. In any event, he is entitled to some process before making such a finding. The court recalls the example of Pres. Eisenhower who was also called on to enforce a court decision with which he did not entirely agree. Regarding the Supreme Court decision in Brown v. Board of Education II, Pres. Eisenhower said he would enforce the decision. For a President to do otherwise would invite chaos. The court quoted the late President: “Unless the President did so, anarchy would result.”

The court castigated the Department’s interpretation of the Supreme Court’s order to “facilitate” the return of Mr. Abrego Garcia. The word “facilitate” is an active verb, not passive. Simply agreeing not to oppose the possible return of Mr. Abrego Garcia is not a “felicitation,” said the court.

It would reduce the rule of law to lawlessness and tarnish the very values for which Americans of diverse views and persuasions have always stood.

These are strong words indeed for a court of appeals, more accustomed to scholarly consideration of weighty, but dry issues. Indeed, for the court to issue a decision within just a couple of weeks is exceedingly unusual. In my last appeal to the Fifth Circuit, it took about a year for the court to issue its decision. The words, actions and lack of respect by U.S. government officials – not to mention its courtroom advocates – will only “facilitate” further drama and strong language from many courts. See the decision in Garcia v. Noem, No. 25-1404 (4th Cir. April 17, 2025) here.

In an April 7 per curiam decision, the U.S. Supreme Court said detainees seeking to challenge their detention under the 1798 Alien Enemies Act must submit a petition for habeas corpus in the jurisdiction in which they are being held. That decision essentially overturns Judge Boasberg’s ruling that the proper venue was Washington, D.C, where the agencies are headquartered. Per curiam opinions are generally opinions which the court considers to be simple, obvious, and which do not need lengthy, complicated explanations. They are so simple that no single judge needs to sign the opinion.

All nine justices agreed on that discrete point regarding the need for due process. But, they disagreed on other issues. All nine justices agreed that the detainees are entitled to notice and due process before being deported. That was a clear rebuke to the Department of Justice.

“To the extent the government removes even one individual without affording him notice and a meaningful opportunity to file and pursue habeas relief, it does so in direct contravention of an edict by the United States Supreme Court,” Sotomayor said in her opinion.

The court did not address the underlying issue, whether the Federal government can use the nineteenth century Alien Enemies Act to deport the suspected gang members.

Habeas Corpus

Barrett, Kagan and Jackson also joined another portion of Sotomayor’s opinion which questioned the majority opinion which said the detainees needed to file a petition for habeas corpus. That is a “thorny” question, said the dissent. That is, these four justices would argue something more robust than a simple habeas corps petition would be needed. That thorny question will certainly be re-visited in full when the case is appealed on the full merits. A habeas corpus petition is a very brief motion which calls on the court to explain why a person is being held. A habeas corpus petition does not address the correctness of holding someone – it simply asks for the basis.

The Emergency Docket

In a separate dissent, Justice Jackson decried the “fly-by-night” approach to the work of the highest court in the land. She meant that resolving difficult issues this early in the process is problematic. The issues have not yet had time to develop. Justice Jackson is objecting to the majority which even accepted the government’s request for an emergency appeal. See ABA Bar Journal report here. See the court’s per curiam opinion here.

Lawyers owe a duty of candor to the court. That means they cannot lie. Lawyers may not always tell the whole truth, but they cannot lie to a Judge. Even if that was not an ethical requirement, it is a practical requirement. Lawyering is one of the places where its participants must rely on the word of another. That is why most prosecutors allow their assistants a good deal of discretion. Most district attorney offices across the country allow their assistant district attorneys to reject a case. That makes sense. Because that assistant must appear in court and tell the judge what s/he believes regarding the facts or the law.

But, AG Pam Bondi does not see it that way. A couple of weeks ago, one assistant DOJ prosecutor admitted in court the obvious, that Kilmar Abrgeo Garcia was deported to El Salvador in direct violation of a prior court order. That DOJ lawyer, Erez Reuveni, also said he did not know why or how Garcia was selected for deportation. That alone is something lawyers admit only reluctantly in court. Simply admitting you do not know why your client did something exposes that client to liability. That admission means the attorney, is not informed of the facts from his/her client’s perspective.

In court, Mr. Reuveni also said he would ask his client to retrieve Mr. Garcia. He asked the Judge for 24 hours to speak with his client.

Suspension

A day later, AG Bondi placed Mr. Reuveni on indefinite suspension. A second lawyer who supervised Mr. Reuveni was also placed on administrative leave for failing to supervise Mr. Reuveni. AG Bondi is sending a message to the lawyers in the civil division at DOJ: lie in court if necessary. Todd Blanche, a deputy AG said Mr. Reuveni engaged in conduct “prejudicial” to his client.

As lawyers, we are sometimes called on the say untrue tings to support our client in court. Most of us refuse to do so – or at least then quit that client soon afterward. It is surely a career-ending exercise to lie in court. Being called on to lie in court is an also a glaring blinking red light that this case is totally lost. Few lawyers will risk their licenses for any employer.

Alone and Overwhelmed

Yet, that is not the only instance in which DOJ lawyers have been forced to admit things that essentially harm their clients. In a matter regarding the law firm, Jenner & Block, DOJ argued that the entire law firm was a danger to national security because it formerly employed Andrew Weissmann. Weissmann was a deputy to Robert Mueller in the first Trump investigation. But, Weissmann has not worked for Jenner & Block for years. The Federal judge conducting the hearing asked a DOJ lawyer, Richard Lawson to explain how a former employee- Weissmann – at Jenner & Block was a risk to national security.

“You’re not going to tell me that having someone employed four years ago poses some kind of national security threat?” After a long pause, Lawson replied, “not per se, no.”

A remark which prompted some laughter in the court room. Mr. Lawson then had to rush from that court room to another court for yet another hearing. The civil division at DOJ has lost about half of its normal 100 lawyers. It is way under-staffed for the current workload. The office is strained by so many lawsuits against so many baseless Executive Orders. At the other court room, Judge Bates noticed that Lawson appeared by himself, with no career prosecutor with him. Lawson is a political appointee. Judge Bates, an alumnus of the same civil division at DOJ, asked why he was by himself. Mr. Lawson replied:

“I, frankly, was supposed to be in Florida, but here I am.” Judge Bates replied, “I don’t find that much of an answer.”

In other words, Judge Bates was hoping for a more forthright answer. Soon afterward, Judge Bates ruled against Mr. Lawson and his ultimate client, Pres. Trump. A large part of what we lawyers do in court is presentation. I tell folks we do marketing in the court room. If you look unprepared, or of your client looks chaotic, you chances of winning go way down. If we appear to lack candor on some issue about which the Judge is concerned, we start with a large deficit. See New York Times report here for more information.

A Travis County district judge awarded the four whistleblowers $6.6 million in damages. The four former Attorney General employees blew the whistle on AG Ken Paxton. I previously wrote abut this whistleblower complains here and here. AG Paxton did not contest liability. So, the main issue at trial was damages. Each of the four whistleblowers received $1 or $2 million. The four plaintiffs included Blake Brickman, Mark Penley, David Maxwell and Ryan Vassar. The judge found they had shown by a preponderance of the evidence that Paxton had violated the Texas Whistleblower Act.

AG Paxton admitted to liability, so as to avoid being deposed. Even though Paxton admitted to being liable for the claims, he said he would appeal the finding. See Texas Tribune report for more information.

Among the many strange practices of the Trump administration, perhaps the strangest is publishing Executive Orders that target specific law firms. The latest such EO targets the Big law firm of Jenner & Block. Among the firm’s many supposed sins: 1) re-hiring the former lead prosecutor, Andrew Weissmann, who served in the Mueller investigation of Pres. Trump, 2) engaging in diversity practices (Oh no!), 3) “abusing” its pro bono practice by engaging in cases that “undermine” justice and U.S. interests, and 4) engaging in cases that involve immigration and transgender issues. I think no. 3 and 4 are related, but who can be sure?

In a statement, the firm noted they have been named in an EO similar to one which has already been found unconstitutional. Mr. Weissmann was re-hired in 2020. He then left in 2021. There was, of course, nothing wrong or improper with the Mueller investigation. That investigation led to a conviction by a jury and eight guilty pleas. Even so, does it make sense to punish some 2500 lawyers and perhaps 3,000 support personnel because the firm re-hired one lawyer for about a year?

Security Clearances

The EO refers to the firm’s supposed politics in representing persons seeking transgender care and representing immigrants. The order clearly violates Jenner & Block’s First Amendment rights. See ABA Bar Journal news report here. This order removes security clearances for all of Jenner & Block’s attorneys and prohibits their access to government buildings. Losing those clearances makes it very difficult, perhaps impossible to represent their clients in many government actions.

Jenner & Block has filed suit over this unconstitutional order. Unfortunately, some law firms may now seek to steal Jenner & Block’s clients and lawyers. No President should be allowed this sort of power. The harm to our adversary system is obvious. These actions, as Judge Michael Luttig notes, amount to an attack on the rule of law. The American Bar Association and more than 50 other bar associations have condemned the administration’s efforts to undermine the courts and the legal profession. See ABA Bar Journal report here.

The Trump legal world is simply bizarro. Judge Boasberg has asked for more definitive information regarding when immigration flights took off from Harlingen, Texas airport on March 15. The question is critical to whether the Trump administration deliberately violated Judge Boasberg’s orders. Judge Boasberg’s request came after a hearing on March 17 in which DOJ obfuscated that very question.

Now, Attorney General Pam Bondi has publicly stated that the Judge is seeking “immaterial” facts. See CBS news report here. “Immaterial” refers to factual matters which do not make a difference. AG Bondi is lecturing the Judge on what he thinks is important. This is the bizarro Trump legal world in which we find ourselves. The perceived needs of the Judge no longer carry any weight. It is simply bizarre that the concerns of the Judge who must decide the matter do not count. After 30 years of litigation, I have just never heard a responsible lawyer lecture a Judge on what he ought to consider important.

The Department of Justice essentially refused to provide the Judge’s requested information by the deadline on March 19. So, Judge Boasberg has given DOJ an additional day to provide that information in a sealed pleading. There is no apparent reason why the administration would refuse to provide that information. A sealed pleading is just that – sealed. No one would see it other than the Judge.

The Attorney General sounds more like a campaign spokesman than an AG. The proper recourse for disagreement with a judge is appeal. Campaign propaganda does not serve her purpose.

There are few things a lawyer can say in court more offensive than “your verbal orders” do not matter. Yet, that is essentially what a DOJ lawyer, Abhishek Kambli, told Judge Boasberg in court. On Saturday, two or more planes left the U.S. with alleged Venezuelan refugees. The planes left about 5:30 p.m. just as the hearing with Judge Boasberg was starting. (It is exceedingly rare for a Judge to hold a hearing on a Saturday). In his ruling from the bench on Saturday, March 15, the Judge specifically told DOJ that any planes in the air should turn around and come back. But, the planes that were in the air did not turn around and come back. They landed in El Salvador well after the Judge ruled from the bench. See CBS news report here for more information.

Minute Entry

So, the Judge scheduled a hearing for Monday, March 17. At that hearing, Judge Boasberg asked Mr. Kambli what happened. Apparently with a straight face, Deputy AG Kambli said the Judge’s verbal order to turn around any planes did not appear in the Judge’s written order. Incredulous, the Judge asked:

“You’re telling me your first argument is when I said those things, because I didn’t say it in a minute order that the plaintiffs didn’t have to turn around, you didn’t have to comply?” Boasberg said. “You’re saying that you felt you could disregard it because it wasn’t in a written order?”

The Judge was referring to the minute entry entered by the District Clerk. The minute entry is prepared by the Judge’s clerk. It is never anything more than the clerk’s summary of what occurred during a particular hearing. Any first year lawyer would know the minute entry is a summary and not intended to be a verbatim citation of what the judge said. Even so, if a lawyer does not understand a verbal order and how it comports with the minute entry, ignoring them is not the preferred response.

The Judge asked a good question, by about 8:00 a.m., the lawyers for both sides knew a hearing had been scheduled for later that day on March 15. Yet, DOJ scheduled these two flights for later that day at about the time of the hearing. Why?

Tense Hearing

Not surprisingly, the March 17 hearing was tense. The DOJ lawyer was clearly obfuscating. He said he could not discuss operational details about the flights. But, the Judge holds CISA hearings. He has access to a secure facility to hear classified information. Still, Mr. Kambli demurred and declined the offer. The Judge also asked whether information about the flights were classified. It does not strike me that such information ought to be classified. But, even so, the Judge has access to a secure facility.

Judge Boasberg noted, of course, that the appropriate response to a judge over-stepping his authority is an appeal. He concluded the hearing with a request for a sworn statement from a witness by noon, the next day explaining when the flights left and what happened.

Karoline Leavitt, the Press Secretary, posted on X/Twitter that there was some question whether a verbal order carried the same weight as a written order. No,. there is not. And, everyone in that courtroom on March 15 knew that a Judge’s verbal order must be obeyed.

There are few things I can think of that compare to a lawyer in court telling a Judge to his face that his verbal orders did not matter. Mr. Kambli could not have offended the Judge more if he had told Judge Boasberg to go jump in the lake. It is an unbelievable thing to say in court. That Mr. Kambli is also a Deputy Attorney General makes this series of events all the more incredible. It is fair to ask if the current Department of Justice supports the rule of law.