The War on Law Firms

With apologies to The War on Words

A few days ago, Greg and I published a piece in The Dispatch about the Trump administration’s executive orders targeting major law firms. Go read it, if you haven’t, but the short version is that people generally aren’t appreciating that the administration’s targeting of law firms is an attack on everyone’s ability to check governmental power, because lawyers are the mechanism by which constitutional rights get enforced, and making lawyers afraid or unable to oppose the government ultimately harms the public at large.

I’d like to go a little deeper here on some of the legal questions that are likely to come up in the argument over Trump’s targeting of law firms. Because there is an argument happening, at dinner tables and on social media. Defenders of the president say something like this: The president has broad authority over security clearances. The president can choose who the government contracts with. A government review isn’t punishment, it’s good governance. National security is a real concern.

Let’s unpack those arguments and line them up against the relevant legal doctrines. And let’s do in the style of Greg’s and Nadine Strossen’s essential handbook for defending the First Amendment to your family and friends, “The War on Words,” by showing the argument you’re likely to hear, and the response.

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Authority over security clearances isn’t unlimited

Argument: “The president has broad authority over security clearances.”

Response: The law is a bit more nuanced than that. It says the president has broad authority to make security clearance determinations on the merits. In Department of the Navy v. Egan (1988), the Supreme Court held that the president has broad, largely unreviewable authority over security clearance determinations as part of his Article II power over national security. Courts are generally reluctant to second-guess the executive’s judgment that a particular person shouldn’t have access to classified information.

But Egan is about the substance of security judgments — whether someone poses a genuine risk. That doesn’t mean that determinations made as a pretense are entitled to the same deference, particularly if an individual can produce prima facie evidence to that effect. When a security determination is made as a pretense, there is no substance to defer to.

And when it comes to targeting law firms with executive orders, the orders recite a retaliatory basis for the determinations on their face. When an executive order opens by complaining that a law firm represented Hillary Clinton in 2016, hired a veteran of the Mueller investigation, or prevailed in a defamation case on behalf of Dominion Voting Systems, it looks a lot more like a list of grievances than a national security determination.

The district courts that struck down these orders understood this. Across four separate rulings, judges found that whatever formal authority the president has over clearances, he cannot exercise that authority with the purpose of punishing firms for protected advocacy and representation.

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Discretion over government contracts isn’t unlimited

Argument: “The president can choose who the government contracts with.”

Response: Also true, as a general matter. The government is not obligated to hire any particular firm, and discretion over contracting is a real and legitimate executive function. But the government choosing not to hire someone based on their advocacy violates the First Amendment.

There’s a fundamental misunderstanding of how government power works that underpins both this and the prior question. Both presuppose that the government having the power to do something is the end of the inquiry. It isn’t, because the government can act unconstitutionally even within the scope of its legitimate authority.

What makes something unconstitutional isn’t so much the specific action being taken, but the motivation and effect of that action. If a government action is motivated by a desire to punish speech and has the intended effect of punishing, preventing, or otherwise disincentivizing that speech, then the action violates the First Amendment, whether or not that action is normally within the authority of the government to perform.

We can see this throughout all levels of government. Some examples:

• School boards normally have the power to limit who can speak at their meetings, but they violate the constitution when they use that authority to selectively silence only those parents who want to object to the content of the curriculum.

• Prosecutors have almost unreviewable discretion in their authority to charge defendants. But a DA who selectively chooses to charge only one race of defendants violates the Constitution.

• Cities have broad discretion to issue parade permits, but a city that denies permits based on the viewpoint of the marchers does so unlawfully.

• The IRS has the authority to determine who to audit, but it violates the First Amendment when it uses that authority to target groups with conservative keywords in their names.

• States have the authority to issue professional licenses (for lawyers, doctors, and so on), but can’t selectively refuse to issue licenses to people based on their speech.

This is pretty basic constitutional doctrine. The action the government takes, even when within its power, becomes unlawful with an unconstitutional motivation and a detrimental effect on the targeted speaker.

These first two rhetorical defenses of the executive orders targeting law firms — “the president has authority over national security determinations” and “the government has authority over contracting decisions” — fail because they address only the action, not the motivation or effect. No one is questioning whether this authority exists; of course it does, just like the school board’s authority exists, the DA’s authority exists, and the IRS’ authority exists. But just like all of those determinations, we need to then consider the motivation and effect of these particular exercises of discretion. And when we do, the executive orders look a lot like unconstitutional retaliation.

You could also look at these orders through the lens of unconstitutional conditions doctrine. That says, roughly, that the government cannot condition a benefit on the recipient’s willingness to surrender a constitutional right. The executive orders are packages of incentives and threats designed to change behavior; to make it costly to represent unfavorable clients, employ unfavorable people, or prevail in unfavorable litigation. That creates an unconstitutional conditions problem, and presidential authority over access and contracts is the mechanism of the constitutional problem, not the resolution of it.

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Government process as punishment

Argument: “A government review isn’t punishment, it’s good governance.”

Response: Process is punishment, particularly when the process is imposed out of the blue and states a retaliatory motive in the preamble. FIRE in particular has seen process-as-punishment for years in the higher education context, where professors would be subjected to months-long reviews to chill their speech over clearly protected expression. And the executive orders were slightly worse, because those suspended clearances pending review, meaning that, functionally, the punishment started before the review did. Query how long those “reviews” would have taken if the law firms had decided to meekly accept the process.

The Supreme Court addressed this directly last term in NRA v. Vullo. Maria Vullo ran New York’s financial services industry regulator. She didn’t even subject insurance companies to a process, exactly; she just told them that the state might be looking closely at any insurer with NRA ties in the future, and might at that point subject them to some kind of a process. The Court unanimously held this was unconstitutional.

If the threat of a potential future process was unconstitutional in Vullo, an immediate process, like the one instituted in the executive orders, is surely worse. Government officials cannot use their regulatory power to coerce private parties into suppressing disfavored speakers or associations, and the coercion doesn’t have to be explicit or direct to violate the First Amendment.

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The National Security concern

Argument: “National security is a real concern.”

Response: Of course it is. And you’re right, that as we mentioned above, the government is entitled to a great deal of deference in its national security determinations. The question is whether the specific government action actually reflects a national security determination, or whether it is a political grievance cosplaying as such a determination.

The executive orders here don’t primarily argue that these firms pose security risks because of their access to classified material. They argue the firms should be punished because of who they represented or hired. Perkins Coie’s order brings up representing Hillary Clinton in 2016. The Jenner & Block order mentions Andrew Weissmann’s work on the Muller investigation. The Susman Godfrey order literally complains about a case Susman won.

National security is a real concern. So is the use of government power to punish critics and opponents. Which one does this look like to you?

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What Happens Next

The four district court cases have been consolidated at the D.C. Circuit, and oral argument is set for May 14. At that point, our hypothetical dinner table conversation is going to need real answers from the court.

The answers to these questions will determine whether the machinery used against these law firms can be used against any law firm — indeed, any organization — that takes the wrong case, wins the wrong verdict, or hires the wrong person, in the eyes of whoever happens to have won the last election cycle.

Greg and I said in the Dispatch piece that this is the administration’s most structurally dangerous campaign, and the least appreciated. Perhaps it is most dangerous precisely because, to the non-lawyer, the other side sounds reasonable at first. The president does have authority over clearances. He does have discretion over contracts. National security is a real thing. None of that is wrong.

What’s wrong is that the Constitution doesn’t let you use legitimate powers as instruments of retaliation for protected speech and association. That principle was hard-won over the 20th century by innumerable speakers who risked their freedom to see if the First Amendment did what it promised to do. This summer, the D.C. Circuit will tell us if it still holds true.

Shot for the Road

Join us in Philadelphia this November to celebrate America’s 250th at Soapbox, FIRE’s premier free speech conference. From November 4–6, hear from leading voices like Nadine Strossen, David Goldberger, Aryeh Neier, Matt Taibbi, John McWhorter, and keep an eye out for more big names to be announced in the coming weeks. Hope to see you there!