Explained: Perkins Coie's lawsuit against Trump's order targeting it

As I wrote in my earlier post today, Donald Trump has escalated his attack on rule of law and U.S. constitutional democracy by issuing an executive order targeting Perkins Coie, a law firm he dislikes and fears. Now, Perkins Coie, represented by Williams & Connolly, has commenced a lawsuit to invalidate and quash Trump's order. The complaint, filed in the District Court of DC, is excellent. It is a lesson in both basic constitutional law and civil rights law. You can download a copy of the complaint, annotated by me below. Here's a link to the complaint on the web. In this post, I will describe and explain Perkins Coie's claims and arguments.

The facts giving rise to the lawsuit

First, a review of the facts that gave rise to the lawsuit. On March 6, President Trump issued an executive order titled "Addressing Risks from Perkins Coie LLP." This order and an accompanying "Fact Sheet" falsely declare that Perkins Coie has engaged in "dishonest and dangerous activity" affecting the United States for decades. The main specific activities noted are Perkins Coie's representation of Hillary Clinton's 2016 presidential campaign and the firm's retention of Fusion GPS in the course of that representation. Other activities cited by the order as "egregious" and "part of pattern" include the firm's litigation against questionably legal election statutes, which the order characterizes as the firm's efforts "to judicially overturn popular, necessary, and democratically enacted election laws." The order also declares, falsely, that Perkins Coie "racially discriminates against its own attorneys and staff," by sponsoring programs to promote diversity and inclusion among the attorneys at the firm. The order commands the Chair of the Equal Employment Opportunity Commission and the Attorney General to target law firms such as Perkins Coie for investigation.

The lawyer most responsible for Perkins Coie's representation of the Clinton campaign and its work challenging election laws for being invalid is Marc Elias. Elias, along with 50 other attorneys, left Perkins Coie in 2021 to form a new, separate firm, the Elias Law Group. Trump has a longstanding, public hatred of Marc Elias and his colleagues. Trump personally sued Perkins Coie after the 2016 election, a lawsuit dismissed by a Florida federal district court as entirely groundless.

The attorneys and employees of Perkins Coie now primarily practice in the areas of commercial litigation, business, and intellectual property. There is a small group that still practices political law and another group that specializes in white collar criminal defense. According to the complaint, "Every single one of the firm’s nine main client-facing practice groups intersects with the federal government and each includes clients with business before the federal government." The firm's work for its clients calls for Perkins Coie lawyers to interact with more than 90 different federal agencies, particularly in the context of patent, trademark, and copyright matters.

Perkins Coie's largest clients have or compete for contracts with the federal government. That these clients receive legal advice from Perkins Coie is not necessarily public knowledge; the relationships between the firm and these clients are confidential.

Trump's executive order goes after all of Perkins Coie's business involving any work that involves the federal government. It requires Perkins Coie clients who work for the federal government to disclose to the government "any business they do with Perkins Coie" and then stipulates that federal agency heads should "terminate any contract... for which Perkins Coie has been hired to provide any service." The "Fact Sheet" accompanying the order announces that the "Federal Government will prohibit funding contractors that use Perkins Coie LLP." Making clear the retaliatory, punitive intent of the order, the Fact Sheet gives as the purpose of this prohibition "ensur[ing] taxpayer dollars no longer go to contractors whose earning subsidize partisan lawsuits against the United States [.]" These measures have already deterred clients from hiring Perkins Coie and have caused some clients to withdraw business from the firm, not only because the order will penalize businesses that use Perkins Coie's legal services but because the order requires some clients to reveal confidential working relationships with the firm.

The executive order directs the head of all federal agencies to limit the access of Perkins Coie attorneys and employees to federal buildings– a command that seemingly includes federal courthouses – and also sharply restrains government employees from engaging with Perkins Coie employees. Obviously, these dictates severely impede Perkins Coie's efforts to represent clients with business before federal agencies.

Finally, the order suspends any security clearances held by Perkins Coie attorneys. Such clearances are obtained by lawyers who represent clients who interact with the Departments of Defense and Homeland Security so that these attorneys can review relevant materials. Without the clearances, Perkins Coie lawyers cannot easily serve such clients, some of whom have already severed ties with the firm and others who deciding what to do and are seeking constant updates from Perkins Coie on the status of the firm’s ability to receive and review sensitive information.

As a result of the interference with its practice areas and with its bottom line, Perkins Coie anticipates difficulty retaining and hiring attorneys as well as in getting and keeping clients.

Perkins Coie's claims

The firm has a number of legal grievances arising from the foregoing facts. Here are the ones I will focus on:

1. The order is an unconstitutional exercise of judicial authority by the president, and thus violates the Constitutional requirement of a separation of powers among the three branches of the federal government.
2. The order deprives Perkins Coie of the procedural due process guaranteed by the Fifth Amendment, which states that "no person shall be deprived of life, liberty, or property, without due process of law."
3. The order denies Perkins Coie equal protection of the laws, which is guaranteed by the Fifth Amendment.
4. The order abridges Perkins Coie's First Amendment rights of free speech and free association.
5. The order violates Perkins Coie's clients' right to counsel, guaranteed by the Sixth Amendment.
6. The order denies the reciprocal right of clients to choose Perkins Coie as their lawyer and Perkins Coie's right to choose its clients and thereby infringes contract interests protected by the Fifth Amendment.

Note the progression of these claims. They start with a foundational challenge to the President's order, arguing that the order functions as a judicial determination of legal wrongdoing by Perkins Coie and then as a judicial imposition of punishment. These functions are assigned by the Constitution to the courts. So Trump, once again, is usurping the province of the federal judiciary. Moreover, in his attack on Perkins Coie's representation of the 2016 Hillary Clinton presidential campaign, he's purporting to cover the same ground a federal court has already ruled provided no basis for any sort of legal claim against the firm.

Next, the complaint highlights the way the executive order interferes with protections from the Bill of Rights, the original ten protections from the federal government the Constitution guaranteed to individuals. Of the first ten amendments to the U.S. Constitution, the Fifth Amendment, guaranteeing due process and equal protection, has the lengthiest lineage in Anglo-American law, going back at least to England's Magna Carta of 1215. The Fifth Amendment acknowledges and constrains the government's power. The government may deprive an individual of life, liberty, or property but not without following a proper legal process and not in a way that discriminatorily singles out an individual for such deprivations. To put this more colloquially, the government may affect and even end a person's life or liberty or possession of property but it cannot do so unfairly. Perkins Coie's complaint argues that a presidential decree that a particular law firm has acted in such a way that the federal government should shun it is a governmental deprivation of the firm's ability to do business – a property interest – without any proper proceeding determining that the government had a legitimate reason to do so. Furthermore, because the executive order and accompanying material specifically state that the government is punishing Perkins Coie for representing the Clinton campaign, the government is, by presidential fiat, depriving the firm of its liberty to represent any client it chooses. Finally, because the order singles out Perkins Coie, which is like virtually all other law firms in its business practices, for retaliation and penalties, the order violates the requirement that the government treat similarly situated people similarly, according everybody equal protection of the laws.

By focusing on rights of speech and association, the First Amendment sharpens the protection of liberty guaranteed by the Fifth Amendment, making it clear that freedom of speech and freedom of association are important, discrete components of individual liberty. When an executive order penalizes a law firm for speaking on behalf of a client and for even accepting that client, the government violates both free speech and free association rights the firm enjoys. It is, according to the complaint, a transgression of the First Amendment for the government to sanction Perkins Coie for its representation of the Clinton campaign. Another, separate violation of the firm's speech and association rights arises from the executive order's treatment of Perkins Coie's efforts to diversify its workforce. So long as the firm's diversity and inclusion programs do not involve racially discriminatory practices, which Perkins Coie adamantly contends they do not, preventing the firm from taking a position in favor of diversity and inclusion and acting on it is another violation of the First Amendment's guarantees of free speech and free association. In short, the government may not, without a legitimate and very strong reason, tell a law firm who to represent or to hire or what to say or not say on behalf of a client or what to say about diversity and inclusion at the firm. Since Trump's stated reasons for punishing Perkins Coie's representation of certain clients and its diversity and inclusion practices are either unlawful, specious, or both, the executive order violates the First Amendment.

The Sixth Amendment focuses on a particular liberty guaranteed to those the government accuses of crime, "the assistance of counsel." Protecting this liberty is a protection of the due process guaranteed by the Fifth Amendment: it ensures that government treats fairly targets of criminal investigations and those accused of crimes and prosecuted. Courts have long permitted lawyers to assert the Sixth Amendment rights of their clients. This is what Perkins Coie is doing on behalf of its white collar criminal defense clients. Because the executive order instructs federal agencies, some of whom, e.g. the Department of Justice, are pursuing criminal investigations and prosecutions, not to interact with Perkins Coie attorneys, the order wrongfully impedes the assistance of counsel Perkins Coie provides its clients who are being investigated and prosecuted.

Finally, the relationship between law firm and client is a contractual one, an agreement to do business with one another. Such an agreement is a matter of both liberty and property, involving personal choice and material reward. When the government wrongfully interferes with contractual arrangements between two private parties, it deprives them of the Fifth Amendment protections of liberty and property. This applies to all of Perkins Coie's clients, civil and criminal. This Fifth Amendment claim is particularly important because the right to decide who to contract with is an old civil liberty, predating state and federal bills of rights. Requiring the government to leave it up to individuals who to create legally enforceable agreements with is a cornerstone of a market that reflects individual preferences, not governmentally imposed outcomes. Apart from the economic efficiency of a market responsive to individual preferences, such markets are one component of a civil society meaningfully separated from state control.

What Perkins Coie wants next

The firm is seeking first a temporary restraining order (TRO) preventing all federal agencies from enforcing or implementing Trump's executive order. After that they want a more durable order that will prevent enforcement and implementation while the case is fully litigated. Judge Beryl A. Howell of the District Court of DC has scheduled an emergency hearing on the TRO for 2:00 pm tomorrow, March 12, 2025.