Oral argument in the consolidated Biglaw executive order cases was today, and if you were hoping the Trump administration had found a more constitutionally defensible position since its previous defense these orders — which has lost, four times, before four different judges across the ideological spectrum — well, I have some news for you.
The DOJ’s position, as articulated by government attorney Abhishek Kambli before Chief Judge Sri Srinivasan and Judges Cornelia Pillard and Neomi Rao, boiled down to two core claims. First: a law firm’s commercial associations, including the lawyers it hires, are not protected by the First Amendment. Second: if the president invokes national security to justify revoking security clearances, the courts have no authority to review that decision, even if the motive is nakedly improper.
“Even if it is for improper motives, it is ultimately unreviewable,” Kambli told the court, as reported by Reuters.
Oh, and one more thing worth noting about the man making that argument: Kambli announced this week that he will be departing DOJ at the end of May after roughly 15 months. He didn’t disclose where he’s heading, but said he was “thrilled for what will be coming next.” Today’s argument was, in other words, essentially his farewell performance, defending the proposition that the president’s motives are unreviewable in federal court, on his way out the door to private practice. The symmetry is something.
Which brings us to Paul Clement. The four firms that had the actual courage to fight back against Donald Trump’s retaliatory executive orders — Perkins Coie, Jenner & Block, WilmerHale, and Susman Godfrey — were repped at the appellate argument by the former Bush Solicitor General who has been in this fight since the beginning, despite his conservative bona fides. He did not leave anything on the table today.
“You’re opening the door for a president to say that, ‘I just don’t think Democrats are trustworthy’ or ‘law firms that represent Democrats are trustworthy,’ and I don’t think you want to open that door,” Clement told the panel.
He’s right. And to his credit, Chief Judge Srinivasan pressed the government on exactly this point, asking whether the president can revoke security clearances for reasons entirely unrelated to an individual’s actual trustworthiness or ability to keep secrets. Kambli’s answer was the kind of response that tends to make appellate judges visibly uncomfortable.
As the four firms have argued throughout this litigation, the retaliatory intent here isn’t a matter of inference or discovery, it’s written right into the executive orders themselves. “They were singled out because they represented clients or associated with attorneys who raised the president’s ire,” Clement told the appeals court. “While most cases alleging retaliation depend on either speculation or extensive discovery, here the executive orders lay the president’s motives bare.”
That’s the thing about these EOs that has made them so constitutionally indefensible at the district court: Trump basically wrote his own smoking gun. The orders are retaliatory, targeting firms for representing Hillary Clinton, for employing prosecutors from Robert Mueller’s investigation, and for having the temerity to sue Fox News on behalf of Dominion Voting Systems.
The DOJ’s appellate brief, you’ll recall, made the rather extraordinary argument that the EOs were constitutional because look how many firms they scared into compliance. Today, in court, that argument got its oral version: these orders aren’t about the sanctity of the American law firm, the government said, but about lower courts encroaching on core presidential power. It’s a more high-minded framing of the same basic position: the president did it, therefore it must be legal.
The four firms had support in court today beyond Clement and Abbe Lowell — the American Bar Association and a host of other legal organizations filed briefs urging the D.C. Circuit to reject the administration’s appeals. That institutional backing matters, not because it changes the legal analysis, but because it signals that the legal profession’s establishment has fully absorbed what’s at stake here. As we’ve said before: this isn’t a case about whether Biglaw survives. It’s a case about whether lawyers can represent disfavored clients without the president being able to destroy their businesses for it.
Now we wait. Two Obama appointees and one Trump judge who is, as we have previously noted, not exactly a flight risk from the administration’s preferred outcomes. The math on this panel still favors the firms. But “probably 2-1” is a less comfortable place to be than the unanimous wins these four firms racked up at the district court level. And whatever the D.C. Circuit decides, the Supreme Court — which has, per Court Accountability data, been a far more hospitable venue for this administration than the lower courts — awaits.
The door Clement warned the panel not to open today is one this Supreme Court has shown a disturbing willingness to at least crack.
Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Bluesky @Kathryn1
The post The Trump Administration’s Best Argument For Its Biglaw EOs Is That You Just Have To Trust The President appeared first on Above the Law.
Oral argument in the consolidated Biglaw executive order cases was today, and if you were hoping the Trump administration had found a more constitutionally defensible position since its previous defense these orders — which has lost, four times, before four different judges across the ideological spectrum — well, I have some news for you.
The DOJ’s position, as articulated by government attorney Abhishek Kambli before Chief Judge Sri Srinivasan and Judges Cornelia Pillard and Neomi Rao, boiled down to two core claims. First: a law firm’s commercial associations, including the lawyers it hires, are not protected by the First Amendment. Second: if the president invokes national security to justify revoking security clearances, the courts have no authority to review that decision, even if the motive is nakedly improper.
“Even if it is for improper motives, it is ultimately unreviewable,” Kambli told the court, as reported by Reuters.
Oh, and one more thing worth noting about the man making that argument: Kambli announced this week that he will be departing DOJ at the end of May after roughly 15 months. He didn’t disclose where he’s heading, but said he was “thrilled for what will be coming next.” Today’s argument was, in other words, essentially his farewell performance, defending the proposition that the president’s motives are unreviewable in federal court, on his way out the door to private practice. The symmetry is something.
Which brings us to Paul Clement. The four firms that had the actual courage to fight back against Donald Trump’s retaliatory executive orders — Perkins Coie, Jenner & Block, WilmerHale, and Susman Godfrey — were repped at the appellate argument by the former Bush Solicitor General who has been in this fight since the beginning, despite his conservative bona fides. He did not leave anything on the table today.
“You’re opening the door for a president to say that, ‘I just don’t think Democrats are trustworthy’ or ‘law firms that represent Democrats are trustworthy,’ and I don’t think you want to open that door,” Clement told the panel.
He’s right. And to his credit, Chief Judge Srinivasan pressed the government on exactly this point, asking whether the president can revoke security clearances for reasons entirely unrelated to an individual’s actual trustworthiness or ability to keep secrets. Kambli’s answer was the kind of response that tends to make appellate judges visibly uncomfortable.
As the four firms have argued throughout this litigation, the retaliatory intent here isn’t a matter of inference or discovery, it’s written right into the executive orders themselves. “They were singled out because they represented clients or associated with attorneys who raised the president’s ire,” Clement told the appeals court. “While most cases alleging retaliation depend on either speculation or extensive discovery, here the executive orders lay the president’s motives bare.”
That’s the thing about these EOs that has made them so constitutionally indefensible at the district court: Trump basically wrote his own smoking gun. The orders are retaliatory, targeting firms for representing Hillary Clinton, for employing prosecutors from Robert Mueller’s investigation, and for having the temerity to sue Fox News on behalf of Dominion Voting Systems.
The DOJ’s appellate brief, you’ll recall, made the rather extraordinary argument that the EOs were constitutional because look how many firms they scared into compliance. Today, in court, that argument got its oral version: these orders aren’t about the sanctity of the American law firm, the government said, but about lower courts encroaching on core presidential power. It’s a more high-minded framing of the same basic position: the president did it, therefore it must be legal.
The four firms had support in court today beyond Clement and Abbe Lowell — the American Bar Association and a host of other legal organizations filed briefs urging the D.C. Circuit to reject the administration’s appeals. That institutional backing matters, not because it changes the legal analysis, but because it signals that the legal profession’s establishment has fully absorbed what’s at stake here. As we’ve said before: this isn’t a case about whether Biglaw survives. It’s a case about whether lawyers can represent disfavored clients without the president being able to destroy their businesses for it.
Now we wait. Two Obama appointees and one Trump judge who is, as we have previously noted, not exactly a flight risk from the administration’s preferred outcomes. The math on this panel still favors the firms. But “probably 2-1” is a less comfortable place to be than the unanimous wins these four firms racked up at the district court level. And whatever the D.C. Circuit decides, the Supreme Court — which has, per Court Accountability data, been a far more hospitable venue for this administration than the lower courts — awaits.
The door Clement warned the panel not to open today is one this Supreme Court has shown a disturbing willingness to at least crack.
Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Bluesky @Kathryn1
The post The Trump Administration’s Best Argument For Its Biglaw EOs Is That You Just Have To Trust The President appeared first on Above the Law.
