Federal District Court Judge Beryl Howell’s injunction prohibiting the implementation of Donald Trump’s executive order restricting the Perkins Coie law firm spoils a righteous core with judicial activism.
On March 6, Trump issued an executive order asserting that “the dishonest and dangerous activity of…Perkins Coie has affected this country for decades. Notably, in 2016 while representing failed Presidential candidate Hillary Clinton, Perkins Coie hired Fusion GPS, which then manufactured a false “dossier” designed to steal an election…. Perkins Coie has worked with activist donors including George Soros to judicially overturn popular, necessary, and democratically enacted election laws….”
The order also accused Perkins Coie of racial discrimination, citing its “publicly announced percentage quotas in 2019 for hiring and promotion on the basis of race and other categories prohibited by civil rights laws.”
The order suspended security clearances for the firm’s lawyers and barred them from federal buildings, prohibited the government from engaging the firm, directed federal contractors to disclose if they use the firm’s services, and referred the firm to be investigated for violating civil rights laws. The order was one of several similar orders issued, or contemplated, against leading law firms.
Howell, an Obama appointee, previously served as chief judge for the District of Columbia, in which capacity she was a strong supporter of Jack Smith’s Trump prosecution. Her 120-page opinion excoriated the administration for disregarding the First Amendment and failing to comply with her orders. She criticized the content and formatting of the Justice Department’s memoranda, averred that the government had no credible evidence of racial discrimination or other wrongdoing by Perkins Coie, and rejected all of its arguments.
Howell is right that the First Amendment and principles of American justice mandate that lawyers be able to deliver candid advice and zealous advocacy to their clients. But, she goes too far by ignoring the compelling case that Perkins Coie conspired with Hillary Clinton and Fusion GPS to improperly influence the 2016 election and destabilize the Trump presidency by developing the fraudulent Steele dossier (which falsely accused Trump of being a Russian agent), and then misleading government investigators about its provenance.
She began her decision by quoting Shakespeare’s admonition to “kill all the lawyers” to make it easier to seize power, and Alexis de Tocqueville, who wrote that the legal profession “is the most powerful existing security against the excesses of democracy.” Howell then held that “using the powers of the federal government to target lawyers for their representation of clients and avowed progressive employment policies in an overt attempt to suppress and punish certain viewpoints…, is contrary to the Constitution, which requires that the government respond to dissenting or unpopular speech or ideas with tolerance, not coercion…. Simply put, government officials cannot… use the power of the State to punish or suppress disfavored expression.”
Access to unvarnished legal advice is sacrosanct, but Howell goes off the rails. She never acknowledges that much of Perkins Coie’s wrongdoing had nothing to do with its legal advice, but came in its capacity as a political kingpin. She bewilderingly asserts that using the firm’s admissions of racial discrimination violates its First Amendment rights. Her related attack on the administration’s opposition to diversity programs reveals her motives for this bizarre conclusion.
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