The federal government’s defense of the Executive Orders targeting Jenner & Block, WilmerHale, Perkins Coie, and Susman Godfrey is, officially, back on.
After first dropping the appeals, then un-dropping the appeals in what can only be described as litigation whiplash, the U.S. Court of Appeals for the D.C. Circuit has now officially greenlit the government’s change of heart. In a brief order Monday, the court granted DOJ’s motion to keep the appeals alive and ensures this mess is heading for a full appellate airing. In a follow-up order Thursday, it set oral argument for May 14, meaning the administration will soon have to defend, with a straight face, why issuing retaliatory Executive Orders targeting major Biglaw firms is totally normal presidential behavior.
You’ll recall last year Donald Trump went on an EO bender, issuing orders targeting Biglaw firms for a hodgepodge of perceived sins like representing disfavored clients, supporting diversity initiatives, and not sufficiently genuflecting before MAGA orthodoxy. Four firms stood up to the bullying and fought the EOs, and were rewarded with decisions from judges across ideological lines all finding that the EOs were retaliatory and unconstitutional. That led to the will they/won’t they moment of appellate litigation where the government filed a voluntary motion notifying the court it was not pursuing the appeal… and 24 hours later calling a backsies.
The DOJ filed a full-throated defense of the EOs, pointing to the yellow-bellied nine Biglaw firms (A& O Shearman; Cadwalader; Kirkland & Ellis; Latham & Watkins; Milbank; Paul, Weiss; Simpson Thacher; Skadden; and Wilkie Farr) as evidence the EOs were totally constitutional. The fighting four firms are expected to file their briefs by March 27 (the DOJ will then have until April 10 to respond). And then oral arguments are on for May and the appellate court will weigh in on whether retaliation against law firms is somehow a “core presidential power.”
Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Mastodon @Kathryn1@mastodon.social.
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