{"id":151198,"date":"2026-05-14T15:15:42","date_gmt":"2026-05-14T23:15:42","guid":{"rendered":"https:\/\/xira.com\/p\/2026\/05\/14\/the-trump-administrations-best-argument-for-its-biglaw-eos-is-that-you-just-have-to-trust-the-president\/"},"modified":"2026-05-14T15:15:42","modified_gmt":"2026-05-14T23:15:42","slug":"the-trump-administrations-best-argument-for-its-biglaw-eos-is-that-you-just-have-to-trust-the-president","status":"publish","type":"post","link":"https:\/\/xira.com\/p\/2026\/05\/14\/the-trump-administrations-best-argument-for-its-biglaw-eos-is-that-you-just-have-to-trust-the-president\/","title":{"rendered":"The Trump Administration\u2019s Best Argument For Its Biglaw EOs Is That You Just Have To Trust The President"},"content":{"rendered":"

Oral argument<\/a> 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<\/a> \u2014 which has lost, four times, before four different judges across the ideological spectrum \u2014 well, I have some news for you.<\/p>\n

The DOJ\u2019s 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\u2019s 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.<\/p>\n

\u201cEven if it is for improper motives, it is ultimately unreviewable,\u201d Kambli told the court, as reported by<\/a> Reuters.<\/p>\n

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\u2019t disclose where he\u2019s heading, but said he was \u201cthrilled for what will be coming next.\u201d Today\u2019s argument was, in other words, essentially his farewell performance, defending the proposition that the president\u2019s motives are unreviewable in federal court, on his way out the door to private practice. The symmetry is something.<\/p>\n

Which brings us to Paul Clement. The four firms that had the actual courage to\u00a0fight back against Donald Trump\u2019s retaliatory executive orders<\/a>\u00a0\u2014 Perkins Coie, Jenner & Block, WilmerHale, and Susman Godfrey \u2014 were repped at the appellate argument by the former Bush Solicitor General who has been in this fight since the beginning<\/a>, despite his conservative<\/a> bona fides.<\/a> He did not leave anything on the table today.<\/p>\n

\u201cYou\u2019re opening the door for a president to say that, \u2018I just don\u2019t think Democrats are trustworthy\u2019 or \u2018law firms that represent Democrats are trustworthy,\u2019 and I don\u2019t think you want to open that door,\u201d Clement told the panel.<\/p>\n

He\u2019s 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\u2019s actual trustworthiness or ability to keep secrets. Kambli\u2019s answer was the kind of response that tends to make appellate judges visibly uncomfortable. <\/p>\n

As the four firms have argued throughout this litigation<\/a>, the retaliatory intent here isn\u2019t a matter of inference or discovery, it\u2019s written right into the executive orders themselves. \u201cThey were singled out because they represented clients or associated with attorneys who raised the president\u2019s ire,\u201d Clement told the appeals court. \u201cWhile most cases alleging retaliation depend on either speculation or extensive discovery, here the executive orders lay the president\u2019s motives bare.\u201d<\/p>\n

That\u2019s the thing about these EOs that has made them so constitutionally indefensible at the district court: Trump basically wrote his own smoking gun<\/a>. The orders are retaliatory, targeting firms for representing Hillary Clinton, for employing prosecutors from Robert Mueller\u2019s investigation, and for having the temerity to sue Fox News on behalf of Dominion Voting Systems.<\/p>\n

The DOJ\u2019s appellate brief, you\u2019ll recall, made the rather extraordinary argument<\/a> 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\u2019t about the sanctity of the American law firm, the government said, but about lower courts encroaching on core presidential power. It\u2019s a more high-minded framing of the same basic position: the president did it, therefore it must be legal.<\/p>\n

The four firms had support in court today beyond Clement and Abbe Lowell \u2014 the American Bar Association and a host of other legal organizations filed briefs urging the D.C. Circuit to reject the administration\u2019s appeals. That institutional backing matters, not because it changes the legal analysis, but because it signals that the legal profession\u2019s establishment has fully absorbed what\u2019s at stake here. As we\u2019ve said before<\/a>: this isn\u2019t a case about whether Biglaw survives. It\u2019s a case about whether lawyers can represent disfavored clients without the president being able to destroy their businesses for it.<\/p>\n

Now we wait. Two Obama appointees and one Trump judge who is, as we have previously noted<\/a>, not exactly a flight risk from the administration\u2019s preferred outcomes. The math on this panel still favors the firms. But \u201cprobably 2-1\u201d is a less comfortable place to be than the unanimous wins these four firms racked up at the district court level<\/a>. And whatever the D.C. Circuit decides, the Supreme Court \u2014 which has, per Court Accountability data<\/a>, been a far more hospitable venue for this administration than the lower courts \u2014 awaits.<\/p>\n

The door Clement warned the panel not to open today is one this Supreme Court has shown a disturbing willingness to at least crack. <\/p>\n

\n

\"\"<\/p>\n

Kathryn Rubino is a Senior Editor at Above the Law, host of\u00a0The Jabot podcast<\/a>, and co-host of\u00a0Thinking Like A Lawyer<\/a>. AtL tipsters are the best, so please connect with her. Feel free to email\u00a0her<\/a>\u00a0with any tips, questions, or comments and follow her on Twitter\u00a0@Kathryn1<\/a>\u00a0or Bluesky\u00a0@Kathryn1<\/a><\/em><\/strong><\/p>\n

The post The Trump Administration\u2019s Best Argument For Its Biglaw EOs Is That You Just Have To Trust The President<\/a> appeared first on Above the Law<\/a>.<\/p>\n

<\/em><\/strong><\/p>\n

Oral argument<\/a> 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<\/a> \u2014 which has lost, four times, before four different judges across the ideological spectrum \u2014 well, I have some news for you.<\/p>\n

The DOJ\u2019s 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\u2019s 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.<\/p>\n

\u201cEven if it is for improper motives, it is ultimately unreviewable,\u201d Kambli told the court, as reported by<\/a> Reuters.<\/p>\n

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\u2019t disclose where he\u2019s heading, but said he was \u201cthrilled for what will be coming next.\u201d Today\u2019s argument was, in other words, essentially his farewell performance, defending the proposition that the president\u2019s motives are unreviewable in federal court, on his way out the door to private practice. The symmetry is something.<\/p>\n

Which brings us to Paul Clement. The four firms that had the actual courage to\u00a0fight back against Donald Trump\u2019s retaliatory executive orders<\/a>\u00a0\u2014 Perkins Coie, Jenner & Block, WilmerHale, and Susman Godfrey \u2014 were repped at the appellate argument by the former Bush Solicitor General who has been in this fight since the beginning<\/a>, despite his conservative<\/a> bona fides.<\/a> He did not leave anything on the table today.<\/p>\n

\u201cYou\u2019re opening the door for a president to say that, \u2018I just don\u2019t think Democrats are trustworthy\u2019 or \u2018law firms that represent Democrats are trustworthy,\u2019 and I don\u2019t think you want to open that door,\u201d Clement told the panel.<\/p>\n

He\u2019s 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\u2019s actual trustworthiness or ability to keep secrets. Kambli\u2019s answer was the kind of response that tends to make appellate judges visibly uncomfortable. <\/p>\n

As the four firms have argued throughout this litigation<\/a>, the retaliatory intent here isn\u2019t a matter of inference or discovery, it\u2019s written right into the executive orders themselves. \u201cThey were singled out because they represented clients or associated with attorneys who raised the president\u2019s ire,\u201d Clement told the appeals court. \u201cWhile most cases alleging retaliation depend on either speculation or extensive discovery, here the executive orders lay the president\u2019s motives bare.\u201d<\/p>\n

That\u2019s the thing about these EOs that has made them so constitutionally indefensible at the district court: Trump basically wrote his own smoking gun<\/a>. The orders are retaliatory, targeting firms for representing Hillary Clinton, for employing prosecutors from Robert Mueller\u2019s investigation, and for having the temerity to sue Fox News on behalf of Dominion Voting Systems.<\/p>\n

The DOJ\u2019s appellate brief, you\u2019ll recall, made the rather extraordinary argument<\/a> 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\u2019t about the sanctity of the American law firm, the government said, but about lower courts encroaching on core presidential power. It\u2019s a more high-minded framing of the same basic position: the president did it, therefore it must be legal.<\/p>\n

The four firms had support in court today beyond Clement and Abbe Lowell \u2014 the American Bar Association and a host of other legal organizations filed briefs urging the D.C. Circuit to reject the administration\u2019s appeals. That institutional backing matters, not because it changes the legal analysis, but because it signals that the legal profession\u2019s establishment has fully absorbed what\u2019s at stake here. As we\u2019ve said before<\/a>: this isn\u2019t a case about whether Biglaw survives. It\u2019s a case about whether lawyers can represent disfavored clients without the president being able to destroy their businesses for it.<\/p>\n

Now we wait. Two Obama appointees and one Trump judge who is, as we have previously noted<\/a>, not exactly a flight risk from the administration\u2019s preferred outcomes. The math on this panel still favors the firms. But \u201cprobably 2-1\u201d is a less comfortable place to be than the unanimous wins these four firms racked up at the district court level<\/a>. And whatever the D.C. Circuit decides, the Supreme Court \u2014 which has, per Court Accountability data<\/a>, been a far more hospitable venue for this administration than the lower courts \u2014 awaits.<\/p>\n

The door Clement warned the panel not to open today is one this Supreme Court has shown a disturbing willingness to at least crack. <\/p>\n

\n

\"\"<\/p>\n

Kathryn Rubino is a Senior Editor at Above the Law, host of\u00a0The Jabot podcast<\/a>, and co-host of\u00a0Thinking Like A Lawyer<\/a>. AtL tipsters are the best, so please connect with her. Feel free to email\u00a0her<\/a>\u00a0with any tips, questions, or comments and follow her on Twitter\u00a0@Kathryn1<\/a>\u00a0or Bluesky\u00a0@Kathryn1<\/a><\/em><\/strong><\/p>\n

The post The Trump Administration\u2019s Best Argument For Its Biglaw EOs Is That You Just Have To Trust The President<\/a> appeared first on Above the Law<\/a>.<\/p>\n

<\/em><\/strong><\/p>\n","protected":false},"excerpt":{"rendered":"

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 \u2014 which has lost, four times, before four different judges across the ideological spectrum \u2014 well, I have some news for you. The […]<\/p>\n","protected":false},"author":3,"featured_media":151199,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"","_et_pb_old_content":"","_et_gb_content_width":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16],"tags":[],"class_list":["post-151198","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-above_the_law"],"jetpack_featured_media_url":"https:\/\/i0.wp.com\/xira.com\/p\/wp-content\/uploads\/2026\/05\/IMG_5243-1-scaled-e1623338814705-620x568-FhG8lj.jpg?fit=620%2C568&ssl=1","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/151198","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/comments?post=151198"}],"version-history":[{"count":0,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/151198\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media\/151199"}],"wp:attachment":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media?parent=151198"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/categories?post=151198"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/tags?post=151198"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}