This is Part III of a definitive article on the current state of the “Rule of Law” in the United States written by one of the country’s top jurists, J. Michael Luttig. It is a little too long for one blog, so I will publish it in five installments; that serves two purposes: The first is that it makes it palatable in size, and the second is that publishing it at least twice will have more impact on all of us.
“Amid the ocean of unconstitutional orders, Donald Trump’s executive orders targeting some of the most prestigious law firms in the country because these firms represented or employed Trump’s personal enemies in the past are the most sinister and corrupt, which is saying something.
Some of the firms—Paul Weiss; Latham & Watkins; Skadden, Arps, Slate, Meagher & Flom; Kirkland & Ellis; and Simpson Thacher & Bartlett—cut “deals” to avoid the president’s persecution.
IN DOING SO, THEY SHAMEFULLY SOLD OUT THEIR OWN LAWYERS, CLIENTS, AND THE ENTIRE LEGAL PROFESSION, INCLUDING THE HANDFUL OF COURAGEOUS LAW FIRMS—SUCH AS WILMERHALE, PERKINS COIE, JENNER & BLOCK, AND SUSMAN GODFREY—THAT RIGHTLY AND RIGHTEOUSLY DECIDED TO FIGHT THE PRESIDENT INSTEAD. (My caps, Luttig’s words).
IT IS THE SWORN DUTY OF ALL AMERICAN LAWYERS TO DENOUNCE THE PRESIDENT’S LAWLESSNESS, NOT TO INGRATIATE THEMSELVES TO HIM. (My caps, Luttig’s words).
The utter unconstitutionality of these executive orders is perfectly captured by the following remarkable paragraph from Perkins Coie’s brief filed against the Trump administration by the legendary Washington law firm Williams & Connolly. I would venture to say there has never been a paragraph like this written in a brief before a federal court in the 235 years of the federal courts’ existence, every word of the paragraph indisputably correct.
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. Because the Order compels disclosure of confidential information revealing the firm’s relationships with its clients, it violates the First Amendment. Because the Order retaliates against Perkins Coie for its diversity-related speech, it violates the First Amendment. Because the Order is vague in proscribing what is prohibited “diversity, equity and inclusion,” it violates the Due Process Clause of the Fifth Amendment. Because the Order works to brand Perkins Coie as persona non grata and bar it from federal buildings, deny it the ability to communicate with federal employees, and terminate the government contracts of its clients, the Order violates the right to counsel afforded by the Fifth and Sixth Amendments.
AND THE SAME CAN BE SAID FOR ALL OF TRUMP’S EXECUTIVE ORDERS TARGETING THE NATION’S LAW FIRMS, LAWYERS, AND LEGAL PROFESSION. THEY ARE MANIFESTLY UNCONSTITUTIONAL, AND EVERY SINGLE FEDERAL COURT TO CONSIDER THEM HAS IMMEDIATELY STAYED THEIR IMPLEMENTATION OVER THE DEFIANT, CONTEMPTUOUS ARGUMENTS MADE BY DEPARTMENT OF JUSTICE LAWYERS. (My caps, Luttig’s words).
Last month, a federal judge blocked Trump from punishing Susman Godfrey, calling the retribution campaign Trump has waged from the White House against the nation’s top law firms “a shocking abuse of power.” The judge said the order was nothing but a “personal vendetta.” Other federal judges have blocked Trump’s executive orders targeting Jenner & Block and WilmerHale.
The federal judge who initially heard the challenge to the Perkins Coie executive order said at the time that Trump’s order sent “chills down my spine.” Earlier this month, the judge finally ruled that the order is unconstitutional and permanently enjoined its enforcement, admonishing Trump and reminding the country that “eliminating lawyers as the guardians of the rule of law removes a major impediment to the path to more power” for the president. The judge praised Perkins Coie and the other firms that have challenged Trump’s corrupt abuse of power: “If the founding history of this country is any guide, those who stood up in court to vindicate constitutional rights and, by so doing, served to promote the rule of law, will be the models lauded when this period of American history is written.” In blistering criticism for the firms that sold out to Trump rather than fight him, she wrote, quoting an amicus brief from the case, that when lawyers “are apprehensive about retribution simply for filing a brief adverse to the government, there is no other choice but to do so.”
NO COURT IN THE LAND WILL EVER UPHOLD ANY OF THESE EXECUTIVE ORDERS, AND TRUMP KNOWS THAT. HE KNOWS HE NEED NOT WIN ANY OF THESE CASES IN COURT TO ACHIEVE WHAT HE WANTS. HE WILL RUIN THE LIVES AND LIVELIHOODS OF LAWYERS AND OTHER AMERICAN CITIZENS AND UPEND THESE INSTITUTIONS LONG BEFORE THE COURTS RENDER THEIR FINAL DECISIONS ON THESE ORDERS. THAT’S HIS WHOLE POINT.” (My caps, Luttig’s words).
I promised in the first part of this article that I would repeat the last two sentences of Luttig’s article at the end of each part. They are a fitting conclusion.
“After these first three tyrannical, lawless months of this presidency, surely Americans can understand now that Donald Trump is going to continue to decimate America for the next three-plus years. He will continue his assault on America, its democracy, and rule of law until the American people finally rise up and say, “No more.”
From across the ages, Frederick Douglass is crying out that we Americans never forget: “The limits of tyrants are prescribed by the endurance of those whom they oppress.”
