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Law Firms

‘Is this a throwback to the McCarthy era?’ Judges consider injunction bids by firms targeted in Trump orders

By Debra Cassens Weiss

April 24, 2025, 10:57 am CDT

Two federal judges sharply questioned a government lawyer Wednesday as they considered bids by Perkins Coie and Wilmer Cutler Pickering Hale and Dorr to permanently enjoin executive orders that target them and their clients.

“Is this a throwback to the McCarthy era, the Red Scare era?” asked U.S. District Judge Beryl A. Howell of Washington, D.C., in the Perkins Coie case. Howell was questioning Department of Justice lawyer Richard Lawson, according to Law360.

Publications with coverage, in addition to Law360, include the New York Times, Reuters, Bloomberg Law and Law.com (here and here).

Lawson argued for the government in the cases before Howell and U.S. District Judge Richard J. Leon, both of whom are located in the District of Columbia.

Perkins Coie and WilmerHale are among four law firms that filed lawsuits to challenge the executive orders that typically seek the suspension of lawyers’ security clearances; restrict their access to government buildings; and call for termination of government contracts for which the firms were hired to provide services, including clients’ government contracts.

Targeted firms have represented clients and worked on causes opposed by President Donald Trump.

Howell asked the “throwback” question after noting a declaration from a former Department of Defense official who oversaw security clearances. He said a blanket suspension of clearances, as called for in the executive orders, “harkens back to the repudiated and discredited programs,” including the Red Scare.

Arguing for Perkins Coie, Dane H. Butswinkas, a partner at Williams & Connolly, said Trump’s actions stem from “the playbook of authoritarianism,” according to Bloomberg Law.

“This is exactly the kind of conduct the Constitution forbids,” Butswinkas said.

Butswinkas said the executive orders targeted lawyers who are no longer with the firms, according to Law.com.

“It sounds more like national insecurity than national security,” he said.

In the hearing before Leon, Lawson said the orders are a valid exercise of executive function rather than punishments for First Amendment activities.

Leon questioned that assertion, Law360 reports.

“It’s pretty clear it’s retaliation,” Leon said, “at least to this court.”

Arguing for WilmerHale, Paul D. Clement of Clement & Murphy said the executive orders “are a direct and lethal threat to an independent bar,” according to Law360.

“The signal it sends to the whole bar is, ‘Watch out,’” Clement said.

Nine firms have reached deals with Trump to avoid executive orders. The deals typically provide that the firms will provide pro bono services for projects mutually supported by the firms and Trump. Amounts of pro bono pledged range from $40 million to $125 million.

Above the Law has created a list of firm actions in response to the Trump administration in its “BigLaw Spine Index.”

See also:

Revoking security clearances includes due process, which is not being followed, says whistleblower lawyer

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President Donald Trump won a rare victory at the district court level on Friday when a judge in Washington, D.C., allowed the government to move full steam ahead with a series of executive orders aimed at rooting out “diversity, equity, and inclusion” (DEI) initiatives.

On Feb. 19, the National Urban League and others sued the Trump administration over several executive orders ending DEI programs in federal government contracts, barring the government from contracting with vendors who have internal DEI programs or that “promote the idea that transgender people exist,” and directing administrative agencies to only recognize “two sexes.”

In the original petition and a later-filed motion for a preliminary injunction, the plaintiffs alleged eight provisions in Trump’s anti-DEI orders ran afoul of the Fifth Amendment’s due process clause and the First Amendment’s guarantee of free speech, among other issues.

In a 58-page memorandum opinion, U.S. District Judge Timothy J. Kelly, who was appointed by Trump during his first term, rejected those claims, both procedurally and for their legal arguments.

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“For one reason or another, Plaintiffs’ claims are likely to fail,” the judge writes. “Some falter on standing—a prerequisite to success on the merits—and others on the underlying First and Fifth Amendment claims.”

The majority of the court’s opinion strikes a blow for the long-aggressive nature of Article III standing, which is widely understood by legal scholars as “conservative standing doctrine.”

This judicial theory was created in two cases from the 1920s by conservative judges who sought to restrain the use and limits of constitutional redress. In other words, standing doctrine was created – and has over time been honed and sustained – to limit citizens from suing the government over perceived violations of their rights. While technically procedural in nature, as opposed to relying on underlying arguments in a dispute, standing arguments are fact-intensive.

Kelly, for his part, quickly dispenses with how he views the facts in the case brought by the nonprofit organizations.

“For half the challenged provisions, Plaintiffs fail to establish a prerequisite to success on the merits: standing,” the opinion goes on. “Presidential directives to subordinates that inflict no concrete harm on private parties—or at least not on these parties—do not present a justiciable case or controversy.”

In the present case, the judge found many of the challenged provisions had to do with changing the government’s own behavior, and do not result in what, in standing doctrine legalese, is known as an “injury in fact.” This state of affairs, rather, turns the plaintiffs into “at most ‘concerned bystanders’ to internal Executive Branch processes.”

“Everything is intra-governmental,” the judge muses.

More Law&Crime coverage: ‘The opposite of diversity is segregation’: Judge castigates Trump over anti-DEI policies, but says he cannot intervene

In sum, Kelly found four of the challenged provisions asked “nothing from Plaintiffs—no compliance, no changed behavior, nothing at all” because those provisions are “not aimed at them” but instead tell “only the agencies to do something.”

For the remaining four challenged provisions, however, the court determined the plaintiffs did, in fact, have standing.

But the court still rejected their arguments as legally deficient.

“Plaintiffs have not shown that the provisions threaten a protected liberty or property interest—a threshold requirement for due process claims,” Kelly’s opinion continues. “And even if they had, Plaintiffs’ vagueness challenge fails for independent reasons. The First Amendment claim, moreover, clashes with two settled rules: the government does not abridge the right to free speech by choosing not to subsidize it, and that right does not permit Plaintiffs or anyone else to violate federal anti-discrimination law.”

One of the major problems, the court says, is that the plaintiffs argued a bit too much, resting their claims on so-called “facial rather than as-applied challenges.”

In lawsuits, government action can be challenged facially, meaning in general, or as-applied, meaning in a specific circumstance.

In the present case, Kelly suggests the plaintiffs would have been better off limiting their claims to more specific problems. Instead, they argued, as the judge framed the issues, that each of the challenged anti-DEI provisions “is unconstitutional in all its applications.”

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Law Firms

Executive orders against firms threaten rule of law, Susman Godfrey says in suit against Trump administration

By Debra Cassens Weiss

April 14, 2025, 12:39 pm CDT

Updated: Susman Godfrey has alleged in a lawsuit filed Friday that President Donald Trump’s campaign of executive orders targeting the law firm and other well-known firms is an unconstitutional threat to the rule of law.

“The president is abusing the powers of his office to wield the might of the executive branch in retaliation against organizations and people that he dislikes. Nothing in our Constitution or laws grants a president such power,” according to the April 11 suit, filed in the U.S. District Court for the District of Columbia. “If a president can with impunity seek to destroy a law firm because of the clients it represents, then the rule of law itself is in grave danger.”

If the executive orders against Susman Godfrey and other firms are allowed to stand, future presidents will face no constraint when they retaliate against different perceived enemies, the suit says.

“Put simply, this could be any of us,” the suit says.

Law360, Reuters and Bloomberg Law are among the publications with coverage.

U.S. District Judge Loren AliKhan of Washington, D.C., granted a temporary restraining order Tuesday to block sections of the executive order denying access to government property and calling for an end to government contracts in which the firm provides services.

“The executive order is based on a personal vendetta against a particular firm,” AliKhan said during the hearing, according to a report by Reuters. “And, frankly, I think the framers of our Constitution would view it as a shocking abuse of power.”

Publications covering the ruling, in addition to Reuters, include Law.com and Law360.

Three other firms that sued over executive orders have also obtained TROs.

Susman Godfrey, a firm with 235 attorneys, describes itself as “the nation’s foremost trial firm” in the suit, Susman Godfrey v. Executive Office of the President. Susman Godfrey is represented in the suit by a legal team at Munger, Tolles & Olson headed by Donald B. Verrilli Jr., who was the U.S. solicitor general in the Obama administration and also was a former Jenner & Block partner.

The April 9 executive order targeting Susman Godfrey alleged that the firm “spearheads efforts to weaponize the American legal system and degrade the quality of American elections.” Susman Godfrey is one of the firms that filed a defamation suit against Fox News for false claims that voting machines made by Dominion Voting Systems were used to help former President Joe Biden win the 2020 election. The case settled for $787.5 million.

The executive order against Susman Godfrey seeks the suspension of security clearances issued to any of the firm’s lawyers; restricts access to government buildings for firm employees; bans the government from providing resources to Susman Godfrey, including compartmentalized information facilities; bans government hiring of Susman Godfrey employees; and calls for termination of government contracts for which Susman Godfrey has been hired to provide services, including clients’ government contracts.

Trump’s executive order “effectively seeks to create a new condition of government contracting—that contractors not work with Susman Godfrey,” the suit says.

That is an unconstitutional condition that interferes with a First Amendment right to associate and a due process right to counsel under the Fifth Amendment’s due process clause, according to the suit, which also cites other alleged constitutional violations.

Susman Godfrey is the fourth firm to sue over executive orders. The others are Wilmer Cutler Pickering Hale and Dorr, Jenner & Block, and Perkins Coie.

Firms that have reached agreements with Trump to avoid executive orders are Paul, Weiss, Rifkind, Wharton & Garrison; Milbank; Willkie Farr & Gallagher; Skadden, Arps, Slate, Meagher & Flom; Kirkland & Ellis; A&O Shearman; Simpson Thacher & Bartlett; Latham & Watkins; and Cadwalader, Wickersham & Taft.

The deals typically provide that the firms will provide pro bono services for projects mutually supported by the firms and Trump. Amounts of pro bono pledged range from $40 million to $125 million.

See also:

Which firms, legal groups, law profs signed briefs supporting Perkins Coie in challenge to punitive Trump order?

Updated April 16 at 8:45 a.m. to include information on the temporary restraining order.

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Fulton County District Attorney Fani Willis has lost yet another case and is now being ordered to once again pay attorneys fees for her office’s intentional violations of Peach State open records laws.

As Law&Crime previously reported, the final judgment in the matter ancillary to the district attorney’s failed racketeering (RICO) prosecution of President Donald Trump was a foregone conclusion.

In October 2024, the judge overseeing the matter said Willis would lose and be subject to a monetary penalty. On Friday, Fulton County Superior Court Judge Rachel Krause formalized her ruling.

“The law doesn’t apply to you,” the judge sarcastically said during last year’s final hearing in the case — upbraiding a government lawyer.

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U.S. Supreme Court

Expected noncompliance with court orders shouldn’t defeat standing, Kavanaugh says in DNA-test arguments

By Debra Cassens Weiss

February 25, 2025, 11:08 am CST

The U.S. Supreme Court appeared divided Monday in arguments over a death row inmate’s quest for a DNA test to show that he wasn’t inside a trailer where robbery accomplices killed an 85-year-old woman.

Justice Brett Kavanaugh was among the justices appearing sympathetic to Texas inmate Ruben Gutierrez’s bid for testing to establish that he didn’t deserve the death penalty for the 1998 murder, report Courthouse News Service, Law.com, SCOTUSblog and the New York Times.

Kavanaugh wrote the 6-3 Supreme Court decision in 2023 that allowed Texas inmate Rodney Reed to pursue a DNA test.

The issue in the Reed case was whether the statute of limitations barred his request for a DNA test in his federal civil rights lawsuit. Before reaching the issue, however, the Supreme Court said Reed had sufficiently alleged an injury that would be redressed by a finding that state DNA testing procedures violate due process.

In Gutierrez’s case, the issue is whether Gutierrez had standing to challenge Texas statute that allows postconviction DNA testing only when it could lead to an overturned conviction. The law does not allow testing when it affects only the sentence, as in Gutierrez’s case.

Texas argues that Gutierrez doesn’t have standing to bring a due process challenge to the statute because he would still be eligible for the death penalty under Texas law and wouldn’t be entitled to the test.

Texas law permits a capital murder conviction in a robbery scheme even if other accomplices killed the victim and even if the defendant didn’t anticipate the murder.

Lawyers for Gutierrez, on the other hand, argue that jurors would not have sentenced Gutierrez to death if DNA showed that he was not in the home and that he wasn’t a “major participant” in the crime. They also argue that courts don’t have to determine whether state officials would redress Gutierrez’s injury if courts were to declare the statute unconstitutional.

Kavanaugh “appeared to take umbrage at the suggestion” that prosecutors might not allow DNA testing even if the Texas statute is found unconstitutional, according to Law.com.

SCOTUSblog reported on Kavanaugh’s comment.

“I just don’t see,” he said, “how we can say something’s not redressable just because the prosecutor is going to say I’m not going to comply with a court order. You know, if President Nixon said I’m not going to come turn over the tapes no matter what, you wouldn’t say, ‘Oh, I guess we don’t have standing to hear the executive privilege case.’”

Courthouse News Service points out that Kavanaugh’s comment comes following suggestions by Vice President JD Vance that presidents could ignore court orders that interfere with their lawful exercise of power.

The case is Gutierrez v. Saenz.

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Constitutional Law

DOJ nominees hedge on whether court orders must always be followed

By Debra Cassens Weiss

February 27, 2025, 3:24 pm CST

Two Department of Justice nominees refused to say whether court orders must always be followed during questioning before the Senate Judiciary Committee on Wednesday.

D. John Sauer, the U.S. solicitor general nominee, said, “Generally, if there’s a direct court order that binds a federal or state official, they should follow it,” Law.com reports.

But Sauer also said “some historians might think we’d be better off” if the 1944 U.S. Supreme Court decision Korematsu v. United States had not been followed. Korematsu upheld an executive order calling for the imprisonment of Japanese Americans during World War II.

In any event, Sauer said, the idea that President Donald Trump would defy a court order is “not a plausible scenario.”

Sauer is a former Missouri solicitor general who clerked for the late Justice Antonin Scalia. He successfully represented Trump before the Supreme Court in the 2020 election-interference case against him. The July 2024 decision held that presidents have “absolute immunity” from criminal prosecution when exercising core constitutional powers.

Other publications with Senate Judiciary Committee coverage include Bloomberg Law, Law360, the Washington Post and Politico.

Aaron Reitz, nominated to lead the DOJ’s Office of Legal Policy, told senators that it would be “too hypothetical” to comment on whether litigants can defy court orders based on a moral disagreement. Reitz is currently the chief of staff for Republican U.S. Sen. Ted Cruz of Texas.

The Washington Post highlighted two other answers given by Reitz.

The first: “There is no hard and fast rule in all instances in which a litigant must comply with all or some or various parts of a judicial decision,” Reitz said. “It is so fact-, law- and case-specific that one cannot speak generally.”

The second: “My position reflects a fairly mainstream view within right-of-center jurisprudential circles, which is simply to suggest that various Supreme Court or Court of Appeals decisions are more limited in scope than maybe our friends who share a different jurisprudential view of Supreme Court holdings would suggest.”

During the hearing, Reitz was asked about his post on X, formerly known as Twitter, after a federal judge blocked a Texas abortion ban enacted during the COVID-19 pandemic.

Reitz wrote that the judge “has made his decision. Now let him enforce it.” The social media post echoed an “apocryphal quote attributed to Andrew Jackson in response to a much earlier court ruling,” according to the Washington Post.

According to Law360, Reitz said the social media post reflects “a conservative view of Article III and the role of courts and their ability to bind parties that are not litigants to the case before it.”

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Judiciary

Could courts run out of options if federal officials defy court orders?

By Debra Cassens Weiss

February 20, 2025, 2:56 pm CST

The question was considered during President Donald Trump’s first term in office: What would happen if his administration ignored a court order? Now, news articles are considering the issue once again, and commentators are using the term “constitutional crisis” to describe worst-case scenarios.

One federal judge in Rhode Island already ruled Feb. 10 that the Trump administration partly failed to comply with a temporary restraining order to lift a freeze on some federal funds.

Then on Feb. 19, plaintiffs in another case sought to hold several administration officials in contempt for alleged “brazen defiance” of a Washington, D.C., federal judge’s TRO requiring continued funding of many foreign-aid programs.

How can courts respond? Among those considering the enforcement issue are Trevor W. Morrison and Richard H. Pildes, professors at the New York University School of Law, in a guest essay for the New York Times, Bloomberg Law, NPR and the Brennan Center for Justice at the NYU School of Law.

Court orders are usually directed at subordinate officials, rather than a president. If the officials don’t comply, “the courts would be likely to issue further orders, with increasingly strict and specific requirements, such as a due date,” according to the guest essay.

Then there are these additional options, according to the articles:

  • Sanction the lawyers. Courts can sanction lawyers who help clients deliberately defy a court order, who file court documents for an improper purpose or who make misrepresentations to a court.

  • Order government officials to answer questions in depositions.

  • Hold administration officials in civil contempt of court. The officials and their agencies could be fined daily until they comply with a court order. Judges could also impose sanctions affecting the underlying litigation. And courts could require imprisonment until an order is followed. The problem is that the U.S. Marshals Service would likely be responsible for imprisoning the official—and the service is overseen by the Department of Justice, which could order noncompliance.

  • Hold officials in criminal contempt and refer the issue to a U.S. attorney for prosecution. Trump could direct the federal prosecutor to drop the case, however. If a judge was to instead appoint private counsel to prosecute, Trump could issue a pardon after a conviction.

“Executive branch defiance of the courts is not a simple, one-time-only decision,” Morrison and Pildes wrote in the New York Times guest essay.

Continued defiance could mean expanding the circle of federal officials who violate the law, including U.S. marshals. The confrontation could eventually reach the U.S. Supreme Court.

“For an official to stand in continued, open defiance of a court order, he might have to defy the entire judicial system,” Morrison and Pildes wrote. “At that point, there is no question we would be in a constitutional crisis, and the courts could well run out of options.”

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A federal judge on Friday blocked the Trump administration’s plans to make “diversity, equity, and inclusion” (DEI) initiatives illegal.

In late January, the 45th and 47th president signed executive orders which purported to root out DEI from federal government contracts and by barring government contractors with DEI programs of their own. Additionally, Trump directed the U.S. Attorney General to “deter” such “programs or principles” and to consider launching “civil compliance” investigations to effectuate such deterrence.

On Feb. 3, the National Association of Diversity Officers in Higher Education (NADOHE) and several other plaintiffs filed a 42-page lawsuit in Maryland federal court. The group describes itself as an organization that aims to help members “advance equity, inclusion, and the value of belonging within their campus communities.”

In their complaint, the plaintiffs alleged the Trump administration’s anti-DEI directives were unconstitutional for myriad reasons. On Friday, a federal court agreed on at least two counts.

A federal judge on Friday finally pulled out the remaining stops and ordered a quick series of depositions in a contentious defamation case involving ABC News and President-elect Donald Trump.

In a terse, two-page order, the U.S. District Court for the Southern District of Florida ordered star anchor George Stephanopoulos to sit down and answer questions under oath and in person. Notably, the judge also ordered the 45th and 47th president to do the same.

And, those depositions must occur sometime next week.

The once and future president is suing because Stephanopoulos said “more than 10 times” on “This Week” in March that Trump had been found “liable for rape” in the E. Jean Carroll civil case.

The underlying lawsuit was filed just eight days after that segment — during which the anchor interviewed Rep. Nancy Mace, a Georgia Republican, and pressed her to explain her support for Trump.

The implication was never left in doubt during the broadcast: Stephanopoulos pointed out Mace herself is a rape victim and repeatedly claimed Trump had been found “liable for rape” by a jury.

The upshot of the Carroll lawsuit, however, is unclear.

The lawsuit argues that ABC and Stephanopoulos defamed Trump in an article’s initial headline and during the broadcast with the claim — even though the jury verdict sheet specifically said “no” as to the rape allegation.

What complicated matters was some verbiage from a post-verdict opinion written by Senior U.S. District Judge Lewis Kaplan.

In a footnote, the judge wrote: “As the jury’s response to Question 2 was an implicit finding that Mr. Trump forcibly digitally penetrated Ms. Carroll’s vagina, no explicit independent finding by the Court is necessary. Nevertheless, the Court alternatively finds that he did so.”

Under New York law, forcible digital penetration does not qualify as rape, the judge explained. But, he added that “far narrower” definition conflicts with the “common modern parlance.”

“The finding that Ms. Carroll failed to prove that she was ‘raped’ within the meaning of the New York Penal Law does not mean that she failed to prove that Mr. Trump ‘raped’ her as many people commonly understand the word ‘rape,”” Kaplan wrote. “Indeed, as the evidence at trial recounted below makes clear, the jury found that Mr. Trump in fact did exactly that.”

More Law&Crime coverage: ‘No reason for any further delay’: Fed-up judge in Trump defamation case against ABC News, George Stephanopoulos refuses demand to push back trial date

Still, law thrives on definitional precision.

Trump’s lawsuit argues Stephanopoulos must have known his statements were false because he has “vast experience as a journalist” and once “specifically” asked E. Jean Carroll how she felt that Trump “was not found liable for rape.” The plaintiff further alleged ABC rebuffed a retraction demand and did not apologize, only changing an article headline from “Nancy Mace defends her support Trump after he was found liable for rape” to “Nancy Mace defends her support Trump after he was found liable for sexual assault.”

The parties have battled it out in motions practice for months. Last month, Chief U.S. District Judge Cecilia M. Altonaga got fed up with the state of play and declined to reschedule deadlines related to expert witnesses, discovery, mediation, and various pretrial motions.

Currently, the trial is slated to begin on April 7, 2025, and is anticipated to last between three to five days.

In her latest order, the judge ordered depositions for both men “be scheduled to take place the week of December 16, 2024.”

Each deposition will be limited to four hours.

Additionally, the court ordered ABC News to provide “all remaining documents (if any) related to Plaintiff’s damages, for review by Plaintiff’s damages expert” by Dec. 15.

Altonaga warned ABC News and Trump that she would not countenance any further efforts at pushing things back from either side.

“The parties are reminded that the Court ‘has already granted a lengthy discovery period . . . and, with Election Day now behind us, there is no reason for any further delay,’” the order concludes — quoting her own November order. “The parties shall continue to meet and confer regarding their remaining discovery disputes.”

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Trials & Litigation

Kirkland partner can’t present argument or evidence because he ‘crossed the lines’ of court orders, judge says

By Debra Cassens Weiss

October 31, 2024, 8:45 am CDT

A Missouri judge has sanctioned a Kirkland & Ellis partner after finding the lawyer “acted in bad faith on several occasions” and tried to inflame the jury during a civil trial targeting the makers of baby formula.

As a sanction, Kirkland partner James F. Hurst can’t argue about or object to evidence, and he can’t question witnesses, said Judge Michael Noble of the 22nd Judicial Circuit Court of Missouri in an Oct. 24 order.

Law.com and Bloomberg Law have coverage.

Noble said it appeared that Hurst was trying to elicit a mistrial when he “either attempted to violate or overtly crossed the lines of the court’s orders related to evidence and arguments before the jury.” In one recent direct examination, Noble said, Hurst “specifically admitted on the record to eliciting testimony and introducing evidence to intentionally inflame and prejudice the jury” in a manner banned by the court.

Hurst is defending Abbott Laboratories in a lawsuit filed by plaintiff Elizabeth Whitfield, who alleges that her baby developed an intestinal illness called necrotizing enterocolitis and suffered brain damage from drinking formula made by Abbott Laboratories. A second formula company, Mead Johnson, and the St. Louis Children’s Hospital are also defendants.

Whitfield’s lawyer, Tim Cronin, has argued that the makers of the formula didn’t disclose the full risk that their product poses for premature babies, according to past coverage by Reuters. Hurst has argued that the formula doesn’t cause necrotizing enterocolitis but that a mother’s breast milk protects against the illness.

Nearly a thousand cases similar to Whitfield’s suit are pending, according to Reuters. One case resulted in a $495 million verdict against Abbott Laboratories. In another, Mead Johnson was found liable for $60 million.

Bloomberg Law described Hurst as “a star litigator,” while Law.com said he is regularly featured in the Litigation Daily’s Litigators of the Week column.

A Kirkland spokesperson told Law.com and Bloomberg Law that Hurst is “a world-class trial lawyer” who “has successfully led cases for 30 years in jurisdictions around the country with supreme professionalism. His impeccable trial record speaks for itself.”

An Abbott Laboratories spokesperson told Law.com and Bloomberg Law that Hurst “is a terrific trial lawyer and has acted professionally, ethically and in good faith throughout the case.”