Court Appears Skeptical of White House Reasoning in Jenner & Block Executive Order Fight
A U.S. District Court judge appeared to repeatedly show strong skepticism Monday toward government arguments defending the White House's executive order targeting law firm Jenner & Block. It's among multiple Big Law targets of President Donald Trump's executive orders, though it's uncertain whether those orders affect communications lawyers (see 2504170027). Jenner & Block is challenging the order (see 2504010072), with Monday's session addressing the firm's motion for a permanent injunction and DOJ's rival motion to dismiss. "Give me a break," Judge John Bates scoffed during roughly 100 minutes of oral argument as DOJ lawyer Richard Lawson was arguing that allegations of racial discrimination in Jenner's hiring were the rationale for the order to bar the firm's employees from accessing federal agencies and buildings.
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Bates repeatedly pressed and challenged Lawson, while Michael Attanasio of Cooley, representing Jenner, was interrupted and opposed substantially less. It's "common sense," Bates said of Jenner's point that clients will be dissuaded from having the firm represent them if its personnel can't access the courthouse or communicate with a federal agency representative regarding a client.
Much of the oral argument revolved around whether the court should conduct a comprehensive or section-by-section analysis of the order. Arguing for a section-by-section analysis, Lawson said the administration has concerns about the propriety of the Mueller investigation into supposed Russian interference in the 2016 election and Trump team links to Russia, as well as about issues such as Jenner's hiring practices. A significant portion of the White House's executive order cites Jenner rehiring Andrew Weissmann, who was part of the Mueller investigation, as justification.
Attanasio argued that the order is clearly meant to be a comprehensive whole, with its provisions being mutually connected and interdependent, so it must be struck down in its entirety. Lawson repeatedly cited the U.S. Supreme Court's 1968 O'Brien case to argue that the order is defensible if there's a rational basis to it, even if it also contains an impermissible basis. In that case, the court upheld a federal law against mutilating draft cards, though some members of Congress had expressed during the legislative process that the law was actually about silencing protests against the Vietnam War.
Lawson also repeatedly argued that the order isn't retaliation for First Amendment-protected activities. The operative sections of the order -- 2 through 5 -- aren't punishment but proper exercises of executive discretion, he said. When Lawson said Section 2 -- which orders agencies to suspend security clearances held by Jenner employees pending a review of whether they "are consistent with the national interest" -- wasn't a blanket suspension, Bates called it "a pretty strange reading" of the provision.
Lawson said the government disagreed with the court's reading that the order directs the Equal Employment Opportunity Commission to investigate Jenner for its hiring practices. He said it calls for a review, which is less formal.
In response to Lawson's argument that the court's second-guessing of the order would tie the hands of Trump and future presidents, Bates questioned how much of a burden it is "to have the executive realize that they shouldn't give six or eight strong personal retaliatory rationales for the actions ... along with one permissible racial discrimination justification," adding, "That's not much of a limitation."
Asked by Bates about the order's Section 5, regarding the agencies and buildings access, Lawson said it's unclear whether it will pose burdens on Jenner or its clients. Bates replied, "Why in the world would you do it?" Lawson repeatedly asked the court to allow agencies to craft guidance about limiting Jenner's access to federal buildings and agencies' staff.
Cooley's Attanasio said the order is clearly unconstitutional and called some of the government justifications "surreal." He said it was designed to punish Jenner for its affiliation with critics of the president. There have been no findings of racial bias at Jenner, he added.
Bates questioned Attanasio's assertion that the increasing number of law firms settling with the Trump administration is a growing threat, asking what the harm was. Attanasio said the regime the White House is creating, with firms choosing between advocating for clients or sacrificing First Amendment rights to escape penalty, is itself a harm.