President Trump – Defending the First Amendment Is a Better Look Than Eviscerating It

​When a federal judge this week struck down President Trump’s executive order targeting the WilmerHale law firm, ruling the order unconstitutional, it was the third recent slap-down of his efforts to punish individual firms. It also brought into stark relief how rapidly this administration is moving in two radically different directions on the First Amendment.
 
On the positive side, the president issued on day one an executive order reaffirming this administration’s commitment to the First Amendment. That order fairly criticized the Biden administration for “exerting substantial coercive pressure on third parties, such as social media companies, to moderate, deplatform, or otherwise suppress speech that the Federal Government did not approve.”
 
Following up on that order, Secretary of State Marco Rubio pledged to “close the book” on “the weaponization of America’s own government to silence, censor, and suppress the free speech of ordinary Americans.” He fulfilled this promise by shuttering the agency’s Global Engagement Center, which secretly tried to kill conservative publications and served as a Trojan horse for filtering content moderation requests to social media platforms.
 
On the other hand, Trump has repeatedly used executive orders to go after past political opponents, putting law firms they had been associated with in the crosshairs for their political leanings.
 
This week, Senior Judge Richard Leon of the U.S. District Court for the District of Columbia essentially said “enough.” He granted summary judgment in favor of WilmerHale, finding the president’s order violated key First Amendment protections and constituted an improper attempt to punish WilmerHale for its legal advocacy.
 
As with other executive orders, this one had barred WilmerHale lawyers from federal buildings, ordered a review of client contracts, and suspended the firm’s security clearances. Any of these measures alone would have been enough to make it impossible for WilmerHale’s 1,100 lawyers to represent many of their clients, hobbling the careers of those lawyers and the cases of their clients.
 
Judge Leon found these measures retaliatory, noting they stemmed from the firm’s representation of clients and causes President Trump dislikes, especially WilmerHale’s long association with former special counsel Robert Mueller.
 
Judge Leon rejected the administration’s effort to defend its order piece by piece, but instead compared it to “gumbo” with the opening section condemning the firm for the hiring of Robert Mueller to justify the later “meaty ingredients – e.g., the Andouille, the okra, the tomatoes, the crab, the oysters.” But, Judge Leon wrote, it is the opening section that vents on Robert Mueller, “the roux” which “holds everything together. A gumbo is served and eaten with the ingredients together, and so too must the sections of the Order be addressed together … this gumbo gives the Court heartburn.” 
 
One doesn’t have to be a fan of the lengthy Mueller “Russian collusion” investigation to share Judge Leon’s heartburn. Leon warned that upholding the order would betray the vision of the Founders. Judge Leon’s opinion finds the executive order to be a grand tour of violated First Amendment rights – from retaliation for speech, to viewpoint discrimination, interference with petition rights, and infringement of free association. The judge wrote: “The Order shouts through a bullhorn: If you take on causes disfavored by President Trump, you will be punished!”
 
The parallels to the administration’s enjoined orders against Perkins Coie and Covington & Burling are equally clear. Judge John Bates, in blocking an action against law firm Jenner & Block, quoted the Supreme Court in a major precedent, National Rifle Association of America v. Vullo (2024), one that ought to make it clear to conservatives what it would feel like if the shoe were on the other foot. Judge Bates wrote:
 
“More subtle but perhaps more pernicious is the message the order sends to the lawyers whose unalloyed advocacy protects against governmental viewpoint becoming government-imposed orthodoxy. This order, like the others, seeks to chill legal representation the administration doesn’t like, thereby insulating the Executive Branch from the judicial check fundamental to the separation of powers. It thus violates the Constitution, and the Court will enjoin its operation in full.”
 
Especially concerning to these jurists was the orders’ use of federal contracts to coerce firms and clients. As Judge Leon wrote, that is coercion, not policy. The adversarial system depends on lawyers being free to take on controversial cases without fear of retribution. Nine firms settled to avoid similar orders. WilmerHale chose to fight – and won a sweeping ruling for the First Amendment and for the principle that legal advocacy must remain free from political interference.
 
With these precedents in place, we hope it is clear to President Trump that attacks on law firms are going to continue to hit a brick wall, one that likely extends all the way to the Supreme Court if necessary.
 
A better way forward is to drop this fruitless campaign of harassment and return to what worked so well for President Trump early on – defending the First Amendment.

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