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?