Amicus Brief in Perkins Coie LLP v. U.S. Department of Justice et al.

WASHINGTON – On March 6, the Trump administration issued an executive order placing sanctions on law firm Perkins Coie for their past work on voting rights lawsuits and their representation of President Trump’s prior political opponents. This morning, 11 legal advocacy organizations filed an amicus brief asking the court to strike down the executive order, including: ACLU ACLU of D.C. Cato Institute Electronic Frontier Foundation Foundation for Individual Rights and Expression Institute for Justice Knight First Amendment Institute at Columbia University National Coalition Against Censorship Reporters Committee for the Freedom of the Press The Rutherford Institute Society for the Rule of Law Institute Among the key arguments within the brief include: “The executive order unconstitutionally retaliates against Perkins Coie for its constitutionally protected advocacy.” Both the speech and petition clauses of the First Amendment protect the firm’s legal advocacy on behalf of its clients, and prohibit the Trump administration from punishing advocacy it disapproves. “The executive order violates separation of powers and due process.” In the adversarial legal system, the judiciary relies on the assistance of lawyers willing to challenge the government, in order to adjudicate whether the government’s actions violate the Constitution. The order intends to chill lawyers from taking positions or making arguments that are adverse to the government, a fundamental attack on the people’s right to due process, ability to arrange personal interests, or speak their minds. The president has issued a series of directives and executive orders expressly intended to tamp down on lawsuits against his administration’s policies. Since February, the president has issued nearly identical executive orders against Perkins Coie, Paul Weiss, Jenner & Block, and WilmerHale – all for similar reasons, namely the former employment of political opponents or those who have sued the president or his administration in the past. A broader directive issued on Friday, March 21 directed the secretary of Homeland Security and attorney general to investigate and seek sanctions against any attorneys or law firms that challenge the president’s actions. Three law firms – Perkins Coie, Jenner & Block, and WilmerHale – have filed lawsuits against the illegal executive orders targeting them. “President Trump has issued unconstitutional fiats to chill the legal profession from taking on causes and clients the president dislikes.” said Cecillia Wang, national legal director of the ACLU. “The orders against law firms are part of Trump’s broader efforts to stamp out legal challenges to unlawful executive actions. The ACLU stands with other civil liberties organizations and the legal profession in standing for the rule of law and supporting those who push back against these illegal executive orders.” “For centuries, lawyers in this country have defended clients without fear of retaliation from the government. It’s a cornerstone of our legal system. Today, President Trump is trying to undermine that tradition," said Arthur Spitzer, senior counsel at ACLU-D.C. “It is now up to our courts to prove that our legal system can withstand this threat. We have confidence that they will.” “The fundamental rights to free speech and legal counsel transcend political ideology and partisan politics,” said Director of Constitutional Studies Tommy Berry and Senior Vice President Clark Neily at the Cato Institute. “That is why Cato has joined a broad cross-ideological coalition standing firm against these unconstitutional orders.” “An independent legal profession is a fundamental component of democracy and the rule of law,” said David Greene, civil liberties director at the Electronic Frontier Foundation. “As a nonprofit legal organization that frequently sues the federal government, we well understand the value of this bedrock principle and how it, and First Amendment rights more broadly, are threatened by President Trump’s executive orders. It is especially important that the whole legal profession speak out against the executive orders in light of the capitulation by a few large law firms.” “The president’s effort to bully firms into submission for daring to represent his opponents betrays America’s centuries-old commitment to justice and individual rights,” said Will Creeley, legal director of the Foundation for Individual Rights and Expression. “An America where people are unable to find a lawyer willing to defend them against prosecution for criticizing the party in power is no longer America.” “The government's position is that it can punish law firms when it doesn't like their advocacy, which should terrify any lawyer who, like us, often angers government officials,” said Anya Bidwell, senior attorney at the Institute for Justice. “We join this brief to protect the basic principle that lawyers have the right to sue the government, even when the government doesn't like it." “One of the proudest traditions in our legal system is that of lawyers standing up to oppose unlawful acts by the government,” said Alex Abdo, litigation director of the Knight First Amendment Institute at Columbia University. “President Trump’s executive orders are an unconstitutional attack on that tradition and on the rule of law.” “The protection of our First Amendment rights requires access to counsel who can represent clients even when — perhaps especially when — those clients hold views disfavored by the government,” said Lee Rowland, executive director of the National Coalition Against Censorship. “The ability of lawyers to zealously represent controversial clients without fear of government reprisal is essential for our individual liberty, and central to American history, values, and our very democracy.” "Efforts to chill the legal profession from representing clients perceived as critical of the administration are a direct threat to journalists, who rely on lawyers to vindicate their First Amendment rights,” said Gabe Rottman, vice president of policy at the Reporters Committee for Freedom of the Press. “Not only are these executive orders unconstitutional, if allowed to stand they could serve to hinder public interest newsgathering." “That the Trump administration is weaponizing the government to wage a war against dissent, should be a warning to all Americans,” said John W. Whitehead, president of The Rutherford Institute. “History shows that when governments claim the power to silence dissent—whether in the name of national security, border protection, or law and order—that power rarely remains limited. These threats against the legal community and ‘we the people’ are merely the first round of the Trump administration’s effort to turn the Bill of Rights into a Bill of Conditional Privileges.” "The administration's unconstitutional actions against law firms are part of a broader effort to corruptly abuse government power to reward perceived friends and punish perceived enemies,” said Gregg Nunziata, executive director of the Society for the Rule of Law Institute. “An independent judiciary, an indispensable pillar of our constitutional system, cannot function without a legal profession able to bring claims without fear of retaliation. The Society for the Rule of Law Institute is proud to partner across the ideological spectrum in defense of the rule of law and the Constitution upon which our liberty depends.”