About Covington and Jack Smith – the Right to Petition Versus Viewpoint Discrimination

Special Counsel Jack Smith arrives to remarks on a recently unsealed indictment including four felony counts against former U.S. President Donald Trump on August 1, 2023 in Washington, DC. (Photo by Drew Angerer/Getty Images)

​What do we make of the recent move by President Trump to punish the lawyers who are defending former special counsel Jack Smith, now believed to be under investigation?
 
The president’s order suspends – pending a legal review – the security clearances of these lawyers and orders agencies to “review and terminate” any federal contracts of their law firm, Covington & Burling LLP, to the “maximum extent” permitted by law. Depending on how it is implemented by the Office of Management and Budget and other agencies, this order could end up violating multiple aspects of the First Amendment.
 
Before we get into why that is so, we first want to make a distinction between this order and the president’s recent revocations of the security clearances of former CIA officials. These officials used their presumed access to classified information to inject themselves into the Hunter Biden laptop controversy two weeks before the 2020 election, claiming that The New York Post story on that subject had “all the classic earmarks of a Russian information operation.”
 
Former government officials retain security clearances to help advise current government officials. Such clearances are not intended to create a false perception of secret knowledge to skew public debate and elections.
 
As it turned out, while many media outlets simply accepted the disinformation claims, The Post had done something that no other media outlet did – solid, investigatory journalism. The previous knee-jerk outlets now admit that the contents of the laptop concerning foreign dealings by the Biden family was authentic. Suspending the security clearances of those who use their access for personal or political purposes, rather than in the aid of national security, if done evenhandedly, is an acceptable narrowing of the privilege of access.
 
Unfortunately, the administration’s announcement that it seeks to punish attorneys with the law firm of Covington & Burling for representing Jack Smith is a different kettle of fish.
 
The order aims to suspend security clearances from a Covington partner and other attorneys that President Trump believes may have been a part of Jack Smith’s team as a special counsel. Law 360 reports that no Covington attorneys show up as a part of Smith’s official investigative team, though it’s possible they helped out on the side. A search of a government database fails to show any government contracts with Covington.
 
President Trump’s order has already been criticized by legal groups. For example, the New York Council of Defense Lawyers said in a statement that this order “is a brazen attack on the defense function and the rule of law.” Perhaps so – assuming Jack Smith is actually under investigation by the Justice Department (DOJ hasn’t confirmed this) and Covington is defending him in that investigation.
 
If that is true, then we would add that the order appears to be a viewpoint discriminatory punishment of the Covington firm, based on their defense of a person who (in Trump circles) is highly unpopular. Depending on how it is implemented, moreover, the order could end up slapping an unconstitutional condition on the privilege of security clearances, and an interference with the right to petition the government in the courts or before the other branches.
 
You may believe that Smith’s investigation was justified by the events of Jan. 6, 2021, or you may believe that Smith’s long inquiry weaponized the law. But Smith, like any potential defendant or public or private person, is entitled to a defense. And Covington lawyers also have a First Amendment right to provide the defense, whether they do so for $1,000 an hour or for bubble gum wrappers. Punishing particular attorneys and their firms for providing a legal defense, or assisting with a First Amendment-protected defense, strikes at the heart of the American system of justice, due process, and First Amendment freedoms.
 
Yet the president’s order is not as harsh as some media outlets have reported it to be. It doesn’t outright “strip” these lawyers’ security clearances. Instead, it “suspends” their clearances pending a review of their work, and it specifies that any punishments ultimately imposed must comply with “applicable law” – including, presumably, the First Amendment. We can hope the OMB and other agencies charged with implementing the President’s order will bear that in mind as they proceed. 
 
Ensuring the neutrality of the law, and of the powerful institutions of government, is a noble and essential goal that President Trump embraced in his executive order on free speech. Remaining true to that goal, even when it involves persons and views you deeply oppose, takes hard work and vigilance. But such is the burden of our constitutional system, and adherence to those principles builds the legacy of those who put in that work and remain vigilant even when it would be easier not to.

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