The act known as “bills of attainder” is old. It goes back to pre-1776 England. A bill of attainder occurred when Parliament would pass a bill that settled a legal dispute. A bill of attainder could find that certain creditors were not in fact owed money, or that certain heirs cannot in fact inherit. It was a way around the judicial process, a path available only to the well-connected. So, in the days after 1776, many state legislatures prohibited bills of attainder. The U.S. Constitution adopted in 1787 specifically prohibited bills of attainder and its evil twin, ex post facto laws. U.S. Const., Art. Sec. 9.

The Trump administration right at the start of its current term issued several Executive Orders targeting certain big law firms. Four courts blocked those EOs, in part because they acted like bills of attainder. Those EOs specifically found those big law firms guilty of perceived offenses with no process. Yet, despite losing all the four challenges to those Executive Orders, the Trump administration has essentially issued another bill of attainder like decision. It decided that Anthropic, the AI company, was a threat to the U.S. supply chain. That designation has in the past only been applied to companies selling goods to China.

I previously talked about bills of attainder here.

Anthropic has filed suit against the U.S. government regarding this designation. It hired one of the four big law firms who won their suits regarding the Executive Orders, Wilmer Cutler Pickering Hale & Dorr. Just based on the timing of the government’s designation, it is clear the U.S. government is retaliating against Anthropic over its refusal to allow its AI engine to be used for domestic surveillance and fully autonomous weapons. It is a suit that Anthropic is very likely to win. But, for today’s U.S. government, it is never about winning. See ABA Bar Journal report here for more information.