Let’s face it. Lawyers and the legal profession are unlikely to win any popularity contests in the United States.
Surveys show that 22% of the American public think lawyers “are trustworthy, while 34% found them untrustworthy.” As the philosopher Sissela Bok explains, “Among the reasons for public distrust of the legal profession is a common perception that too many lawyers violate basic moral principles when it suits their purposes.”
That is why when President Donald Trump launched his attacks on some of the nation’s most prominent law firms, he knew he was going after soft targets. Despite several rousing defenses of those firms by prominent lawyers and loud protests on May 1, National Law Day, the public has hardly noticed.
One day later, though, United States District Judge Beryl Howell delivered a wake-up call, a ringing defense of the legal profession, and a stern rebuke of the president. The legal issues were, in her view, so clear that she didn’t even need to hold a hearing and issued a “summary judgment” for Perkins Coie.
Along the way, Howell offered an extended tribute to the profession and a reminder of the key role it plays in the maintenance of democracy and the rule of law. She wrote, “[T]he importance of independent lawyers to ensuring the American judicial system’s fair and impartial administration of justice has been recognized in this country since its founding era.”
She highlighted the views of Alexis de Tocqueville, a French observer of American culture who traveled to the United States in the 1830s. In Tocqueville’s view, the authority Americans “have entrusted to members of the legal profession, and the influence which these individuals exercise in the Government, is the most powerful existing security against the excesses of democracy.”
“Men,” Tocqueville said, “who have more especially devoted themselves to legal pursuits derive from those occupations certain habits of order, a taste for formalities, and a kind of instinctive regard for the regular connection of ideas, which naturally render them very hostile to the revolutionary spirit and the unreflecting passions of the multitude.”
He thought that “The government of democracy is favorable to the political power of lawyers….” And, in lines that President Trump has heeded, Tocqueville observed, “There is a far greater affinity between this class of individuals and the executive power than there is between them and the people. I am therefore convinced that the prince who, in the presence of an encroaching democracy, should endeavor to… diminish the political influence of lawyers, would commit a great mistake.”
At the start of the twentieth century, Louis Brandeis, who would later go on to serve on the United States Supreme Court, called on the lawyers of his time to play an active role in public life. He thought they were more than just well-educated professionals; they were also citizens who could and should play a vital role in the democratic process.
It is not clear whether, in the abstract, the president would agree with Brandeis. But we know that during his first 100 days in office, he targeted a group of America’s most prestigious law firms, including Perkins Coie.
On March 6, he issued an Executive Order entitled “Addressing Risks from Perkins Coie LLP.” He highlighted what he called “The dishonest and dangerous activity of the law firm Perkins Coie LLP (“Perkins Coie”) [that] has affected this country for decades.”
Among other things, his order called out the firm for “representing failed Presidential candidate Hillary Clinton” and having “manufactured a false “dossier” designed to steal an election.” The president asserted that “This egregious activity is part of a pattern. Perkins Coie has worked with activist donors including George Soros to judicially overturn popular, necessary, and democratically enacted election laws, including those requiring voter identification.”
The president suspended security clearances held by firm lawyers and “terminate[d] any contract[s]…for which Perkins Coie has been hired to perform any service.”
Five days later, Perkins Coie sued.
It claimed that the Executive Order was unconstitutional and “aims to punish it for representing clients and causes that are opposed to the administration.” The suit went on to say that the order’s “plain purpose is to bully those who advocate points of view that the President perceives as adverse to the views of his Administration.”
Judge Howell agreed. She offered a plain-spoken explanation of the purposes and dangers of President Trump’s actions.
“No American president,” her opinion began, “has ever issued executive orders like the one at issue in this lawsuit targeting a prominent law firm with adverse actions to be executed by all executive branch agencies but, in purpose and effect, this action draws from a playbook as old as Shakespeare who penned the phrase the first thing we do, let’s kill all the lawyers.”
“By its terms,” the judge explained, “this order stigmatizes and penalizes the particular law firm and its employees…due to the firm’s representation, both in the past and currently, of clients pursuing claims and taking positions with which the current president disagrees, as well as the firm’s own speech.” Howell went on to say, “in a cringe worthy twist on the theatrical phrase ‘let’s kill all the lawyers’ [the Executive Order] takes the approach of ‘let’s kill all the lawyers I don’t like,’ sending the clear message: lores must stick to the party line or else.”
The judge calls the federal government’s attempt to target Perkins Coie “an overt attempt to suppress and punish certain viewpoints.” It is “contrary to the Constitution, which requires that the government respond to dissenting or unpopular speech or ideas with ‘tolerance not coercion.’”
Tolerance, not coercion. That’s hardly the Trump administration’s mantra. But in this era of political polarization and political sectarianism, it is one all Americans should remember.
The judge documented President Trump’s intolerance of, and longstanding animus toward, Perkins Coie and one of its lawyers and the president’s fiercest critics, Marc Elias.
Judge Howell ruled that the president’s attack on the firm violated the First Amendment, the right to due process of law guaranteed by the Fifth Amendment, and the rights of the firm’s clients to counsel under the Fifth and Sixth Amendments. Moreover, it “unconstitutionally denies equal protection of the law to Perkins Coie by singling the firm out for unfair treatment.”
The judge minced no words in labeling parts of the government’s argument as to why the executive order should be upheld a “subterfuge” and a transparent effort to get her to ignore “the past and current factual context for, and the actual text and impact of, [the Executive Order], which targets plaintiff for adverse agency action…[for] representing some clients disliked by the president, engaging in some litigation seeking results disliked by the president, and operating its business, in part, in a manner disliked by the president.”
Howell concluded by reiterating the stake that all of us have in the fate of Perkins Coie.
“Plaintiff,” she said, “has demonstrated the strong interest of the firm, its employees, and clients, as well as the American legal system and the public more broadly, in issuance of an injunction to protect the independence of counsel to represent their clients vigorously and zealously, without fear of retribution from the government simply for doing the job of a lawyer.”
Let’s face it. The American public may not like lawyers, but, as Howell made clear, if we are to preserve our freedom, we need to stand up for them in this moment when it, and they, are under attack.
