In issuing a permanent injunction halting the enforcement of President Donald Trump’s executive order targeting the law firm Perkins Coie, U.S. Judge Beryl Howell ruled that the order singled out Perkins Coie based on the content of its speech and actions. To conclude that the order infringed upon the First Amendment rights of Perkins Coie and its clients, Howell unsurprisingly relied upon the text of the president’s order and the accompanying “fact sheet” from his administration. But she also did something else far more unusual: Howell used Trump’s subsequent agreements with other firms — and his boasts about them — as evidence against his administration.
Trump’s order limited Perkins Coie’s lawyers access to government buildings, revoked their security clearances and ordered federal agencies to terminate contracts with the firm. One of Perkins Coie’s claims in its lawsuit was that this punishment was in retaliation for stances that the firm has taken over the years, including its representation of Hillary Clinton and her 2016 campaign for president. The firm showed that it already had lost clients as a result of the order and that it was likely to lose many more if the judge did not permanently halt the enforcement of the order.
It wasn’t just the deals that caught the judge’s eye, but the president and his staff’s bragging about the agreements.
In determining whether Trump’s order was “unconstitutional retaliation for plaintiff’s First Amendment protected activity,” Howell accepted the firm’s allegations that it had lost business — which the administration did not contest. But she also went further, turning to the administration’s deals with other law firms.
For Howell, a critical element in her assessment of whether the administration’s actions were punitive and retaliatory was the fact that those who entered into agreements with the administration were spared similar harms, with the administration either refraining from issuing orders punishing those firms or even withdrawing orders previously issued.
It wasn’t just the deals that caught the judge’s eye, but the president and his staff’s bragging about the agreements. For Howell, this made it evident that the punishment was the very point of the White House’s actions in the first place.
In addition to noting the White House’s promotion of the agreements with these other firms, Howell also referenced the president’s own statements on the issue. She quoted, for example, his remarks at an event in early April: Have you noticed that lots of law firms have been signing up with Trump? $100 million, another $100 million, for damages that they’ve done. But they give you $100 million and then they announce, ‘We have done nothing wrong.’ And I agree, they’ve done nothing wrong. But what the hell, they’ve given me a lot of money considering they’ve done nothing wrong. Powell also cited Trump and adviser Stephen Miller’s remarks during the signing of an order targeting the law firm Susman Godfrey. At the event, Trump asked Miller to share the value of free legal work secured from the deals with other law firms. “The numbers are adding up. We’re going to be close to a billion soon,” Miller replied. “As to the Susman EO he had just signed,” Howell wrote, “President Trump then said, ‘this one, we’re just starting the process with this one.’” Although the “precise terms of these deals” are “somewhat fuzzy,” Howell wrote, “what is clear is that the Trump White House has publicly touted the negotiated deals reached with various law firms, and equally clear is that those deal-making firms have been spared, or had revoked, an Executive Order targeting them.” The government’s promotion of those deals provided Howell with further evidence that President Trump was clearly singling out firms for retribution based on whether they entered agreements with the administration or not. Perhaps Judge Howell’s decision would have been the same had Trump not trumpeted certain firms bending the knee to him. But this president and this administration could not help themselves. They just had to brag — and Howell used their own words against them.
Ray Brescia
Ray Brescia is a professor of law at Albany Law School and author of the book “The Private Is Political: Identity and Democracy in the Age of Surveillance Capitalism.” 
