By Mike Scarcella
WASHINGTON (Reuters) – Along with its constitutional arguments, law firm Perkins Coie wielded another powerful weapon in its legal battle with President Donald Trump: his own commentary spanning eight years.
U.S. District Judge Beryl Howell on Friday struck down Trump’s executive order targeting the firm. The judge decided that Trump’s directive retaliated against Perkins Coie for its viewpoints and its past cases, violating the U.S. Constitution’s First Amendment protections against the government abridging freedom of speech.
The 102-page decision returned again and again to statements that Trump made outside the actual executive order, from social media posts and comments in the Oval Office to off-the-cuff references to other law firms that made deals with him to avoid being targeted.
Legal experts said Howell’s decision showed how Trump’s stream of internet posts and unscripted comments have hampered his defense even as three other firms seek to overturn similar presidential orders. Trump has targeted firms that have employed or represented lawyers who have participated in previous state and federal investigations of him or have had clients who are political adversaries or have challenged his policies in court.
“Trump’s online comments only make crystal clear what is pretty transparent on the face of the order – namely, that this is retaliation based on viewpoint and in violation of the First Amendment,” New York University law professor Peter Shane said.
Beginning in 2017 and continuing through last month, Trump took to social media to lambaste Perkins Coie for allegedly working to steal the 2016 U.S. election for his Democratic opponent Hillary Clinton, whose campaign that year was a client of the firm.
Howell quoted from many of the 20 Trump statements that the firm included in its lawsuit.
“If I am elected, they will be brought to JUSTICE,” Trump posted on social media during his 2024 campaign, referring to Perkins Coie.
After the Republican president returned to office in January and issued the Perkins Coie order on March 6, he came back to the same theme, Howell wrote in her decision.
“What they’ve done is, it’s just terrible. It’s weaponization, you could say, weaponization against a political opponent,” Trump said at the White House ceremony signing the order targeting Perkins Coie.
Trump’s order suspended security clearances held by Perkins Coie’s lawyers, sought to cancel federal contracts held by its clients and restricted its access by its lawyers to government officials.
Howell concluded that the directive violated the firm’s constitutional rights not only to free speech but also to due process, which requires the government to use a fair legal procedure.
The White House and Justice Department have defended Trump’s orders against Perkins Coie and other firms as lawful exercises of presidential power.
In a statement responding to Howell’s ruling, the White House said the decision to grant a lawyer a security clearance “falls well beyond the judiciary’s authority.”
A Justice Department representative did not immediately respond to a request for comment on a possible appeal. Perkins Coie did not immediately respond to a request for comment.
FREEWHEELING STYLE
Howell said she was careful not to tread on Trump’s own free speech rights and did not intend to restrict his criticism of Perkins Coie or other firms. Trump’s views are not the problem, Howell said, but rather what his administration seeks to do to the firm “based on that thinking.”
Trump’s social media habits and freewheeling style have posed challenges in court for him before.
In his first term, the U.S. Supreme Court weighed whether his inflammatory comments about Muslim immigrants during the 2016 presidential campaign showed his order restricting immigration from certain Muslim-majority countries was driven by animus rather than sound policy considerations. The court ultimately upheld Trump’s immigration order in 2018.
More recently, Washington-based U.S. District Judge James Boasberg in another case questioned the administration’s refusal to provide details about deportation flights for alleged Venezuelan gang members, noting Trump himself posted a video on Truth Social that “portrayed a host of operational details.”
Howell said Trump’s comments about Perkins Coie and lawyers formerly associated with the firm provided “probative context” that helped show his order’s retaliatory intent. The judge also pointed to statements Trump made about other firms that reached deals with him to avoid being targeted by the White House, finding that they bolstered Perkins Coie’s retaliation claims.
Nine prominent firms – including Paul Weiss, Skadden Arps, Latham & Watkins and Kirkland & Ellis – have pledged nearly $1 billion in free legal services to the White House and made other concessions.
Howell said the deals and the ways Trump described them showed “the coercive power of such targeting” by his administration. The judge quoted Trump boasting that he had obtained “damages” from the firms, and cited similar comments by senior presidential aide Stephen Miller.
“They’ve given me a lot of money considering they’ve done nothing wrong,” Trump said in an April 8 speech. “And we’ll use some of those people, some of those great firms, and they are great firms too – they just had a bad moment.”
While some critics have accused the firms of capitulating to Trump, they have defended their deals, saying they did not compromise their principles.
Yale Law School professor Harold Koh called Howell’s decision “a sweeping rejection” of the administration’s arguments, and said judges in the other cases involving law firms probably would rule similarly.
Trump’s statements may provide fodder for the judges who are expected to rule in the coming weeks on his executive order targeting the other firms, according to Shane.
“I would expect the president’s comments to similarly subvert other attempts by government lawyers to defend his overreach as somehow normal and neutrally justified,” Shane said.
(Reporting by Mike Scarcella; Editing by David Bario, Amy Stevens and Will Dunham)
