EFF has joined the American Civil Liberties Union and other legal advocacy organizations across the ideological spectrum in filingan amicus brief asking a federal judge to strike down President Donald Trump’sexecutive order targeting law firm Perkins Coie for its past work on voting rights lawsuits and its representation of the President’s prior political opponents.
As a legal organization that has fought in court to defend the rights of technology users for almost 35 years, including numerous legal challenges to federal government overreach, EFF unequivocally supports Perkins Coie’s challenge to this shocking, vindictive, and unconstitutional executive order. In punishing the law firm for its zealous advocacy on behalf of its clients, the March 6 order offends the First Amendment, the rule of law, and the legal profession broadly in numerous ways. We commend Perkins Coie and other targeted law firms that have chosen to do so (and their legal representatives) for fighting back.
“If allowed to stand, these pressure tactics will have broad and lasting impacts on Americans' ability to retain legal counsel in important matters, to arrange their business and personal affairs as they like, and to speak their minds,” our brief says.
Lawsuits against the federal government are a vital component of the system of checks and balances that undergirds American democracy. They reflect a confidence in both the judiciary to decide such matters fairly and justly, and the executive to abide by the court’s determination. They are a backstop against autocracy and a sustaining feature of American jurisprudence since*Marbury v. Madison**, 5 U.S. 137 (1803).*
The executive order, if enforced, would upend that system and set an appalling precedent: Law firms that represent clients adverse to a given administration can and will be punished for doing their jobs.
This is a fundamental abuse of executive power.
The constitutional problems are legion, but here are a few:
The First Amendment bars the government from “distorting the legal system by altering the traditional role of attorneys” by controlling what legal arguments lawyers can make. SeeLegal Services Corp. v. Velasquez, 531 U.S. 533, 544 (2001). “An informed independent judiciary presumes an informed, independent bar.” Id. at 545.
The executive order is also unconstitutional retaliation for Perkins Coie’s engaging in constitutionally protected speech during the course of representing its clients. SeeLozman v. City of Riviera Beach, 585 U.S. 87, 90 (2018).
The executive order violates fundamental precepts of separation of powers and the Fifth and Sixth Amendment rights of litigants to select the counsel of their choice.SeeUnited States v. Gonzalez-Lopez, 548 U.S. 140, 147–48 (2006).
An independent legal profession is a fundamental component of democracy and the rule of law. As a nonprofit legal organization that frequently sues the federal government, we well understand the value of this bedrock principle and how it – and First Amendment rights more broadly – are threatened by President Trump’s executive orders targeting Perkins Coie and other law firms. It is especially important that the whole legal profession speak out against the executive orders in light of the capitulation by a few large law firms.
The order must be swiftly nullified by the U.S. District Court for the District of Columbia, and must be uniformly vilified by the entire legal profession.
The ACLU’s press release with quotes from fellow amici can be foundhere.