The Trump administration on Friday asked a federal appeals court to restore punishments imposed by President Donald Trump on several prominent law firms, saying that judges who had blocked the sanctions infringed on his authority.
Trump last year waged a campaign against firms that had taken on cases or hired people whom he disliked. In the early months of his second term, the president issued executive orders directing that these firms lose government contracts and their employees be blocked from government jobs and stripped of security clearances.
While several law firms struck deals with Trump to avoid such sanctions, four businesses he targeted — WilmerHale, Jenner & Block, Perkins Coie and Susman Godfrey — sued to challenge his actions. All swiftly found success in court. Federal judges sided with them across the board, blocking Trump’s orders and admonishing him in the process.
The administration made its argument that the rulings should be overturned by the appeals court only days after appearing ready to abandon its challenge. Earlier this week, the administration said in a filing that it planned to drop the appeals, only to backpedal less than 24 hours later. Officials have not publicly explained either move.
In a filing Friday evening with the U.S. Court of Appeals for the D.C. Circuit, the Justice Department assailed what it called “sweeping decisions” by lower court judges. The agency said these judges were “encroaching on the constitutional power of the President to discuss and address invidious racial discrimination, national security risks, and other problems with certain law firms.”
The firms involved in the case have condemned Trump’s actions as blithely unconstitutional and retaliatory. In its court filings last year, Susman Godfrey said if Trump’s orders against firms were “allowed to stand, future presidents will face no constraint when they seek to retaliate against a different set of perceived foes.”
Judges have been similarly critical. U.S. District Judge John D. Bates, striking down Trump’s order aimed at Jenner & Block, called it “an unconstitutional act of retaliation” that would “strangle Jenner’s ability to attract and retain clients and personnel.”
The administration said Friday in its filing that Trump’s orders, which criticized the firms for their legal work and called out people they hired by name, included protected speech. These firms “have no First Amendment right, and the Judiciary has no authority, to silence him,” the Justice Department wrote.
“Courts cannot tell the President what to say,” the agency said. “Courts cannot tell the President what not to say.”
The firms have continued to express outrage at the executive orders, with some calling them unconstitutional in statements this week.
The case was thrown into some uncertainty earlier this week, when the Trump administration took contradictory positions on whether it still wanted to defend the executive orders.
On Monday, the government wrote in a court filing that it wanted to drop its push to revive sanctions for the law firms. The following day, the administration abruptly reversed itself, telling the court in another filing that it had changed its mind.
The contradictory motions were submitted days before the government’s opening brief was due in the case. The government’s second filing included a statement from the law firms saying that they opposed the request to reverse course and continue the appeal. The statement added: “Under no circumstances should the government’s unexplained about-face provide a basis for an extension of its brief.”
The D.C. Circuit has consolidated the four law firm cases and said oral arguments in the matter would happen the same day as those in a similar case involving Trump’s effort to strip a security clearance from Mark Zaid, a national security attorney. During Trump’s first term, Zaid represented a government whistleblower who accused Trump of pressuring Ukraine for political reasons, sparking Trump’s first impeachment.
The court did not immediately schedule oral arguments or say who would be on the panel hearing both cases. The law firms’ briefs are due March 27.
Trump’s sanctioning of law firms sparked fear and anger throughout the legal industry, feelings that were magnified when some firms began making deals with his administration last year.
Nine firms, most of which had not been sanctioned by Trump, pledged hundreds of millions in pro bono legal work for causes the administration said it supports, prompting outrage within those law offices and nationwide.
The firms that made deals said they were needed to keep their businesses alive, but a wave of attorneys quit in protest, with some sharply criticizing their employers on their way out the door.
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