The Revival of DOJ’s Assault on Law Firms Also Revives a Core Threat to Free Speech

​The Department of Justice had troubling deciding whether to defend the administration’s unprecedented campaign against disfavored law firms or retreat from it. That hesitation betrays something important, that department lawyers recognize just how constitutionally dangerous this effort is.
 
This campaign began with President Trump issuing executive orders to try to punish, if not destroy, law firms in retribution for the political activities of their past associates. When DOJ announced earlier this month that it had decided to drop its appeal of four cases brought by affected law firms, Daniel Barnes of Politico observed that doing so made good legal sense: cut your losses (0-4) and regroup.
 
Which is why it surprised Barnes and nearly everyone else when DOJ announced a day later that the appeal would proceed as originally planned. What's not surprising is the anemic logic of the appeals brief the department ultimately filed that Friday, which not even more than 90 pages of window dressing could cure. 
 
It only takes one court, however, to accept these weak arguments to render them dangerous. There are multiple constitutional threats in play here to the First Amendment. None of these threats was lost on District Judge Richard Leon, appointed by President George W. Bush, when he found for one of the four affected large-law firm plaintiffs last May. He wrote, in an exclamation-point-filled opinion in U.S. District Court in Washington, D.C.:

“The cornerstone of the American system of justice is an independent judiciary and an independent bar willing to tackle unpopular cases, however daunting. The Founding Fathers knew this!”

To let President Trump’s order stand, Leon wrote, “would be unfaithful to the judgment and vision of the Founding Fathers!”
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Here are some of the most notable flaws in the government’s case that emerged from Judge Leon’s opinion: 
 
Retaliation for Protected Speech: The First Amendment prohibits the government from punishing people for exercising their right to free speech.
 
A law firm representing clients in court is certainly a form of protected expression. Stripping security clearances and restricting access to federal buildings – simply because a president dislikes the causes and clients the firm represents – directly punishes the firm. Pulling security clearances and denying access to federal buildings, including possibly federal courts, is a death penalty for firms that do business in Washington.
 
Curtails the Right to Petition: The Constitution guarantees the right to take grievances to court to resolve disputes, whether in the District of Columbia or the Dakotas. Blocking D.C.-centric lawyers from entering federal buildings is designed to stop those firms from bringing future cases.
 
Viewpoint Discrimination: It is illegal for the government to suppress speech just because it disagrees with the specific opinion or "viewpoint" being shared. The executive orders in question unlawfully weaponize government power to target and threaten the firms specifically because of their legal advocacy and political viewpoints.  
 
Freedom of Association: The First Amendment protects the right of people and businesses to freely associate with one another. The executive orders against the law firms violate this protection by forcing federal contractors to declare if they do any business at all with the named firms, and threatening to cancel their government contracts if they do not sever ties.
 
DOJ’s do-over is more than a bad look – it is a warning. When the government claims the power to punish lawyers for their advocacy, it threatens every American’s right to speak, to associate, and to seek justice in court. The courts, always our last line of defense for constitutional rights, must make it clear – the right to speak and to petition the government is never subject to political retaliation.

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