 |
| Pix credit here |
Mr. Trump has a long memory. That comes as no surprise. What may be more surprising is the way that this memory has been able to situate events that have deeply affected him, and those he believes responsible for their negative impacts, into matters of state. This was most recently evidenced in a 14 March directive from the President, "Addressing Risks from Paul Weiss," which focused on a well known and quite significant collective of lawyers handling many high profile matters. This is not the first law firm named in a Presidential order. On 6 March 2025, the President directed measures taken against the law firm Perkins Coie (Presidential Action here; discussion in a broader context here). The first of these actions, however, as the 25 February action against Covington and Burling. "During an Oval Office photo opportunity devoted to a series of executive actions, Trump signed a memorandum suspending the security clearances of lawyers and other personnel at Covington & Burling involved in representing Smith before he resigned from the Justice Department last month." (Politico; Presidential Order,Suspension of Security Clearances and Evaluation of Government Contracts).
What has produced some attention in all those actions has been, first that the President directed his order against individually named law firms, and second, that the effect of that naming (and shaming) has been to deprive both forms of any access to work for federal administrative organs. There is a substantial sensitivity on both counts. Both, though, touch on the same fundamental cluster of issues: whether these actions exact a penalty without process, whether the actions chill the ability of a lawyer to freely represent clents without repercussion, and the extent to which the state, as a client for legal services may at like any other client with respect to lawyers the client no longer trusts and actively and personally dislikes (and the limits of the ability to act on those feelings whether justified or not)..
These issues are already being considered as part of a lawsuit filed by Perkins Coie in the wake of the Order directed against it (Perkins Coie, law firm targeted by Trump, wins temporary restraining order).
Judge Beryl Howell said at a hearing Wednesday that she would issue a temporary restraining order to block Trump's order while the firm's lawsuit challenging it plays out."I am sure many in the legal profession are watching in horror about what Perkins Coie is going through here," she said.
In its lawsuit, the firm accused Trump of seeking to destroy it based on "a tiny sliver" of its work. "The Order is not just an attempt to constrain or weaken Perkins Coie; its objective is to destroy the Firm," the firm said in a filing. "Unless restrained, the Order realistically might succeed in that objective within days based on the weight of the federal pressure being deployed against the Firm’s clients."
The issues are quite interesting. On the one hand, the federal government is no ordinary client. And it is not merely an entity that may hire (and fore) lawyers; it it also a platform for information and action that is impossible to avoid if a firm is to adequately represent others. While it may be true enough that a private individual, or a very large and very powerful private enterprise, may choose to fire a law firm--and to try to get all of their friends and relations to avoid working with the frm for reasons personal to that entity (subject of course to the limits of libel and defamation), the federal government might both be treated as an ordinary (or even an extraordinary) client. Not may it deny access to persons or firms that current officials dislike or mistrust. It can seek to punish violations of law, and sanction rule breakers with deprivations of privileges and other punishments permitted by law (none of this is new); officials may hold opinions as individuals (though that is trickier while in office), and they can deny security clearances for those reasons and after such processes as are provided in the rules governing those matters. But is it different when it is the state through its officials that engage in these activities; ought there to be a difference between a (broad) power to dismiss one's lawyers, and a power to refuse of cooperate with lawyers (on an equal basis with other lawyers and on similar terms)?The firm also warned of far-reaching potential consequences if the order remains in place. "By punishing a law firm for its advocacy on behalf of clients whom the President disfavors, the Executive Order is designed to have a chilling effect extending far beyond Perkins Coie," the firm wrote in its request for a temporary restraining order.(Ibid.).
Those are the issues worth litigating here; and more broadly, the question of the use of official power (whether that of a President, Governor, Senator or high administrative official) to blackball a law firm which they detest (other than for reasons of loss of confidence or trust and violation of law), whether officials may hire or fire lawyers as they please, and whether there is a difference (as there ought to be) between questions of hiring and firing and questions of access and cooperation in other matters in which those lawyers represent other clients, deserve a thorough judicial airing. Mr. Trump has suggested conduct by both law firms that might be sufficient to justify replacing them with others when the federal government is seeking outside counsel. Beyond that, questions of security clearances and cooperation might require substantially more process than the declaration of Presidential mistrust and the reasons for it--though that is certainly one way to start, not end, the inquiry. Whether the State has a greater obligation to cooperate with outside lawyers than private entities is an interesting question which might tilt in favor of a higher bar to resist cooperation.
The three memorandum and orders are reproduced below.
By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered:
Section 1. Background.
Global law firms have for years played an outsized role in undermining
the judicial process and in the destruction of bedrock American
principles. Many have engaged in activities that make our communities
less safe, increase burdens on local businesses, limit constitutional
freedoms, and degrade the quality of American elections. Additionally,
they have sometimes done so on behalf of clients, pro bono, or
ostensibly “for the public good” — potentially depriving those who
cannot otherwise afford the benefit of top legal talent the access to
justice deserved by all. My Administration will no longer support
taxpayer funds sponsoring such harm.
My Administration has already
taken action to address some of the significant risks and egregious
conduct associated with law firms, and I have determined that similar
action is necessary to end Government sponsorship of harmful activity by
an additional law firm: Paul, Weiss, Rifkind, Wharton & Garrison
LLP (Paul Weiss). In 2021, a Paul Weiss partner and former leading
prosecutor in the office of Special Counsel Robert Mueller brought a pro
bono suit against individuals alleged to have participated in the
events that occurred at or near the United States Capitol on January 6,
2021, on behalf of the District of Columbia Attorney General.
In
2022, Paul Weiss hired unethical attorney Mark Pomerantz, who had
previously left Paul Weiss to join the Manhattan District Attorney’s
office solely to manufacture a prosecution against me and who, according
to his co-workers, unethically led witnesses in ways designed to
implicate me. After being unable to convince even Manhattan District
Attorney Alvin Bragg that a fraud case was feasible, Pomerantz engaged
in a media campaign to gin up support for this unwarranted prosecution.
Additionally,
Paul Weiss discriminates against its own employees on the basis of race
and other categories prohibited by civil rights laws. Paul Weiss,
along with nearly every other large, influential, or industry leading
law firm, makes decisions around “targets” based on race and sex.
My Administration is committed to ending such unlawful discrimination
perpetrated in the name of “diversity, equity, and inclusion” policies
and ensuring that Federal benefits support the laws and policies of the
United States, including those laws and policies promoting our national
security and respecting the democratic process. Those who engage in
blatant discrimination and other activities inconsistent with the
interests of the United States should not have access to our Nation’s
secrets nor be deemed responsible stewards of any Federal funds.
Sec. 2. Security Clearance Review.
(a) The Attorney General, the Director of National Intelligence, and
all other relevant heads of executive departments and agencies
(agencies) shall immediately take steps consistent with applicable law
to suspend any active security clearances held by individuals at Paul
Weiss and Mark Pomerantz, pending a review of whether such clearances
are consistent with the national interest.
(b) The Office of
Management and Budget shall identify all Government goods, property,
material, and services, including Sensitive Compartmented Information
Facilities, provided for the benefit of Paul Weiss. The heads of all
agencies providing such material or services shall, to the extent
permitted by law, expeditiously cease such provision.
Sec. 3. Contracting.
(a) To prevent the transfer of taxpayer dollars to Federal contractors
whose earnings subsidize, among other things, activities that are not
aligned with American interests, including racial discrimination,
Government contracting agencies shall, to the extent permissible by law,
require Government contractors to disclose any business they do with
Paul Weiss and whether that business is related to the subject of the
Government contract.
(b) The heads of all agencies shall review all
contracts with Paul Weiss or with entities that disclose doing business
with Paul Weiss under subsection (a) of this section. To the extent
permitted by law, the heads of agencies shall:
(i) take appropriate
steps to terminate any contract, to the maximum extent permitted by
applicable law, including the Federal Acquisition Regulation, for which
Paul Weiss has been hired to perform any service;
(ii) otherwise
align their agency funding decisions with the interests of the citizens
of the United States; with the goals and priorities of my Administration
as expressed in executive actions, especially Executive Order 14147 of
January 20, 2025 (Ending the Weaponization of the Federal Government);
and as heads of agencies deem appropriate. Within 30 days of the date
of this order, all agencies shall submit to the Director of the Office
of Management and Budget an assessment of contracts with Paul Weiss or
with entities that do business with Paul Weiss effective as of the date
of this order and any actions taken with respect to those contracts in
accordance with this order.
Sec. 4. Racial Discrimination. Nothing in this order shall be construed to limit the action authorized by section 4 of Executive Order 14230 of March 6, 2025 (Addressing Risks from Perkins Coie LLP).
Sec. 5. Personnel.
(a) The heads of all agencies shall, to the extent permitted by law,
provide guidance limiting official access from Federal Government
buildings to employees of Paul Weiss when such access would threaten the
national security of or otherwise be inconsistent with the interests of
the United States. In addition, the heads of all agencies shall
provide guidance limiting Government employees acting in their official
capacity from engaging with Paul Weiss employees to ensure consistency
with the national security and other interests of the United States.
(b) Agency officials shall, to the extent permitted by law, refrain
from hiring employees of Paul Weiss, absent a waiver from the head of
the agency, made in consultation with the Director of the Office of
Personnel Management, that such hire will not threaten the national
security of the United States.
Sec. 6. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii)
the functions of the Director of the Office of Management and Budget
relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c)
This order is not intended to, and does not, create any right or
benefit, substantive or procedural, enforceable at law or in equity by
any party against the United States, its departments, agencies, or
entities, its officers, employees, or agents, or any other person.
DONALD J. TRUMP
THE WHITE HOUSE,
March 14, 2025.
By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered:
Section 1. Purpose.
The dishonest and dangerous activity of the law firm Perkins Coie LLP
(“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. This egregious activity is part of a
pattern. Perkins Coie has worked with activist donors including George
Soros to judicially overturn popular, necessary, and democratically
enacted election laws, including those requiring voter identification.
In one such case, a court was forced to sanction Perkins Coie attorneys
for an unethical lack of candor before the court.
In addition to undermining democratic
elections, the integrity of our courts, and honest law enforcement,
Perkins Coie racially discriminates against its own attorneys and staff,
and against applicants. Perkins Coie publicly announced percentage
quotas in 2019 for hiring and promotion on the basis of race and other
categories prohibited by civil rights laws. It proudly excluded
applicants on the basis of race for its fellowships, and it maintained
these discriminatory practices until applicants harmed by them finally
sued to enforce change.
My Administration is committed to
ending discrimination under “diversity, equity, and inclusion” policies
and ensuring that Federal benefits support the laws and policies of the
United States, including those laws and policies promoting our national
security and respecting the democratic process. Those who engage in
blatant race-based and sex-based discrimination, including quotas, but
purposefully hide the nature of such discrimination through deceiving
language, have engaged in a serious violation of the public trust. Their
disrespect for the bedrock principle of equality represents good cause
to conclude that they neither have access to our Nation’s secrets nor be
deemed responsible stewards of any Federal funds.
Sec. 2. Security Clearance Review.
(a) The Attorney General, the Director of National Intelligence, and
all other relevant heads of executive departments and agencies
(agencies) shall immediately take steps consistent with applicable law
to suspend any active security clearances held by individuals at Perkins
Coie, pending a review of whether such clearances are consistent with
the national interest.
(b) The Office of Management and
Budget shall identify all Government goods, property, material, and
services, including Sensitive Compartmented Information Facilities,
provided for the benefit of Perkins Coie. The heads of all agencies
providing such material or services shall, to the extent permitted by
law, expeditiously cease such provision.
Sec. 3. Contracting.
(a) To prevent the transfer of taxpayer dollars to Federal contractors
whose earnings subsidize, among other things, racial discrimination,
falsified documents designed to weaponize the Government against
candidates for office, and anti-democratic election changes that invite
fraud and distrust, Government contracting agencies shall, to the extent
permissible by law, require Government contractors to disclose any
business they do with Perkins Coie and whether that business is related
to the subject of the Government contract.
(b) The heads of all agencies shall
review all contracts with Perkins Coie or with entities that disclose
doing business with Perkins Coie under subsection (a) of this section.
To the extent permitted by law, the heads of agencies shall:
(i) take appropriate steps to
terminate any contract, to the maximum extent permitted by applicable
law, including the Federal Acquisition Regulation, for which Perkins
Coie has been hired to perform any service;
(ii) otherwise align their agency
funding decisions with the interests of the citizens of the United
States; with the goals and priorities of my Administration as expressed
in executive actions, especially Executive Order 14147 of January 20,
2025 (Ending the Weaponization of the Federal Government); and as heads
of agencies deem appropriate. Within 30 days of the date of this order,
all agencies shall submit to the Director of the Office of Management
and Budget an assessment of contracts with Perkins Coie or with entities
that do business with Perkins Coie effective as of the date of this
order and any actions taken with respect to those contracts in
accordance with this order.
Sec. 4. Racial Discrimination.
(a) The Chair of the Equal Employment Opportunity Commission shall
review the practices of representative large, influential, or industry
leading law firms for consistency with Title VII of the Civil Rights Act
of 1964, including whether large law firms: reserve certain positions,
such as summer associate spots, for individuals of preferred races;
promote individuals on a discriminatory basis; permit client access on a
discriminatory basis; or provide access to events, trainings, or travel
on a discriminatory basis.
(b) The Attorney General, in
coordination with the Chair of the Equal Employment Opportunity
Commission and in consultation with State Attorneys General as
appropriate, shall investigate the practices of large law firms as
described in subsection (a) of this section who do business with Federal
entities for compliance with race-based and sex-based
non-discrimination laws and take any additional actions the Attorney
General deems appropriate in light of the evidence uncovered.
Sec. 5. Personnel. (a) The heads of all agencies shall, to the extent permitted by law, provide guidance limiting official access from Federal Government buildings to employees of Perkins Coie when such access would threaten the national security of or otherwise be inconsistent with the interests of the United States. In addition, the heads of all agencies shall provide guidance limiting Government employees acting in their official capacity from engaging with Perkins Coie employees to ensure consistency with the national security and other interests of the United States.
(b) Agency officials shall, to the
extent permitted by law, refrain from hiring employees of Perkins Coie,
absent a waiver from the head of the agency, made in consultation with
the Director of the Office of Personnel Management, that such hire will
not threaten the national security of the United States.
Sec. 6. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of
the Office of Management and Budget relating to budgetary,
administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to,
and does not, create any right or benefit, substantive or procedural,
enforceable at law or in equity by any party against the United States,
its departments, agencies, or entities, its officers, employees, or
agents, or any other person.
DONALD J. TRUMPTHE WHITE HOUSE,
March 6, 2025.
MEMORANDUM FOR THE SECRETARY OF STATE
THE SECRETARY OF DEFENSE
THE ATTORNEY GENERAL
THE SECRETARY OF ENERGY
THE DIRECTOR OF THE OFFICE OF MANAGEMENT AND
BUDGET
THE DIRECTOR OF NATIONAL INTELLIGENCE
THE DIRECTOR OF THE CENTRAL INTELLIGENCE AGENCY
THE DIRECTOR OF THE OFFICE OF PERSONNEL
MANAGEMENT
SUBJECT: Suspension of Security Clearances and Evaluation
of Government Contracts
I
hereby direct the Attorney General and all other relevant heads of
executive departments and agencies (agencies) to immediately take steps
consistent with applicable law to suspend any active security clearances
held by Peter Koski and all members, partners, and employees of
Covington & Burling LLP who assisted former Special Counsel Jack
Smith during his time as Special Counsel, pending a review and
determination of their roles and responsibilities, if any, in the
weaponization of the judicial process. I also direct the Attorney
General and heads of agencies to take such actions as are necessary to
terminate any engagement of Covington & Burling LLP by any agency to
the maximum extent permitted by law and consistent with the memorandum
that shall be issued by the Director of the Office of Management and
Budget.
Additionally, if any of the covered Covington &
Burling LLP members, partners, and employees referenced in this
memorandum obtained a security clearance from an agency not included as
an addressee of this memorandum, the Director of the Office of Personnel
Management shall provide this memorandum to the appropriate
clearance-granting agency to ensure compliance.
I further
direct the Director of the Office of Management and Budget to issue a
memorandum to all agencies to review all Government contracts with
Covington & Burling LLP. To the extent permitted by applicable law,
heads of agencies shall align their agency funding decisions with the
interests of the citizens of the United States; with the goals and
priorities of my Administration as expressed in executive actions,
especially Executive Order 14147 of January 20, 2025 (Ending the
Weaponization of the Federal Government); and as heads of agencies deem
appropriate.
This memorandum is not intended to, and does not,
create any right or benefit, substantive or procedural, enforceable at
law or in equity by any party against the United States, its
departments, agencies, or entities, its officers, employees, or agents,
or any other person.
No comments:
Post a Comment