The two U.S. Department of Justice court documents filed in a federal appeals court five days apart could not be more different. Both were signed by the same two high-ranking senior prosecutors.
The first document is just six pages in length and conciliatory in tone and substance, announcing that the federal government would no longer seek to enforce the executive orders signed by President Donald Trump a year ago targeting Houston-based Susman Godfrey and three other corporate firms. The EOs claim the firms are national security risks and order that their lawyers not be able to enter federal buildings or do business with clients that have federal government contracts.
The second document, filed late Friday, is 97 pages and stridently defiant. The brief states over and over that federal courts have no authority to second-guess President Trump’s executive orders, even if those orders have no supporting facts, provide no due process opportunities and were implemented as punishment against law firms that represented clients in cases against the president and his allies.
The DOJ stated that it was “a grave error” for the four separate federal judges to enjoin the president’s executive orders against Susman Godfrey, Perkins Coie, WilmerHale and Jenner & Block.
“Courts cannot tell the President what to say. Courts cannot tell the President what not to say. They cannot tell the President how to handle national security clearances,” the DOJ stated in its brief to the U.S. Court of Appeals for the D.C. Circuit. “And they cannot interfere with Presidential directives instructing agencies to investigate racial discrimination that violates federal civil rights laws. Nor can they interfere with Presidential directives instructing agencies to review contracts or regulate government building access based on those same racial-discrimination and national-security concerns — especially where such directives have not yet been implemented.
“Ignoring those constraints, the district courts below bent over backwards to facially invalidate every section of four Executive Orders without considering their plainly constitutional aspects and applications,” the DOJ argued. “This appeal of those sweeping decisions is not about the sanctity of the American law firm; it is about lower courts encroaching on the constitutional power of the President to discuss and address invidious racial discrimination, national security risks, and other problems with certain law firms.”
In its brief, the DOJ argued that President Trump’s two-page EO against Susman Godfrey addressed “significant risks, egregious conduct, and conflicts of interest associated with Susman.”
“Susman spearheads efforts to weaponize the American legal system and degrade the quality of American elections,” DOJ stated. “Susman also funds groups that engage in dangerous efforts to undermine the effectiveness of the United States military through the injection of political and radical ideology, and it supports efforts to discriminate on the basis of race. Susman itself engages in unlawful discrimination, including discrimination on the basis of race and even administers a program where it offers financial awards and employment opportunities only to ‘students of color.’”
The DOJ brief does not address why its own senior lawyer, during oral arguments at the district court, declined to defend President Trump’s allegations that Susman Godfrey’s minority law student award program was illegal or improper.
The government’s brief does not provide any specific details or examples of Susman Godfrey’s improper or illegal behalf.
In June, U.S. District Judge Loren AliKhan of Washington, D.C., ruled that the president’s executive order targeting Susman Godfrey was an illegal act of retaliation and violates the First Amendment of the U.S. Constitution.
“The Order tarnishes, without process, Susman’s reputation with salacious allegations of wrongdoing … and it brands Susman as unfit for government work, or even government interaction,” Judge AliKhan wrote. “Defendants cannot target Susman for those activities simply because it does not like them. And to the extent that defendants argue that the Order is not intended as a punitive measure, but as a legitimate exercise of the government’s discretion when it acts as a contractor, the court reiterates that the government is still required to comply with the Constitution when it acts as a contractor.”
President Trump’s ire against Susman Godfrey stems from the firm’s successful representation of Dominion Voting Systems in defamation litigation against supporters of the president, including My Pillow CEO Mike Lindell, Fox News and Newsmax, which broadcast claims that the 2020 election was fixed.
The DOJ brief filed Friday addresses none of those issues.
“It is well established that courts may not police the President’s adjudication of security clearance decisions. Such Presidential actions are plainly not justiciable,” the DOJ brief states. “Further, plaintiffs have not and could not argue that their employees should enjoy unfettered security clearance privileges even if the President determines that such privileges are contrary to the national interest.”
“Section 1 of the EOs provides background discussing how certain law firms have taken actions that threaten public safety and national security, limit constitutional freedoms, degrade the quality of American elections, and undermine bedrock American principles,” DOJ states. “This is simply the President’s speech. Plaintiffs have no First Amendment right, and the Judiciary has no authority, to silence him.”
The four lower court federal judges hearing the lawsuits brought by the four law firms all agreed that President Trump’s EOs violated the firms’ free expression rights by targeting the firms for legal or public positions they have supported in various litigation matters.
Lawyers for the four firms said the problem with DOJ’s argument that the EOs are protected by the First Amendment is that President Trump’s EOs also come with punitive measures that deprive others of their constitutional rights.
Legal experts also point out that the DOJ brief fails to address one key issue raised by the lawyers and the judges in the EO litigation: President Trump’s EOs also claimed that the corporate firm Paul Weiss was a threat to national security but the president rescinded the EO against Paul Weiss after the law firm agreed to provide tens of millions of dollars in free legal work for causes supported by the Trump administration.
Other than the “shakedown” for free legal services, the White House required Paul Weiss to make no other national security-related changes, lawyers told the federal judges last spring.
All four judges who ruled against President Trump’s EOs made it clear that their orders do not prevent the federal government from taking separate, individualized actions against specific lawyers at any of the law firms if the administration has evidence that they are a national security threat.
But that still leaves the about-face that the DOJ took last week when it filed a federal court motion on March 2 stating that it was abandoning its defense of President Trump’s EOs, only to file another motion about 15 hours later withdrawing the first motion and declining to state why.
Legal experts following the litigation tell The Texas Lawbook that there are two primary theories that offer a possible explanation. The first is that President Trump saw the headlines about his DOJ no longer defending his presidential power and ordered Attorney General Pam Bondi to reverse course.
The second is that lawyers at the White House were told that no longer defending the presidential EOs could lead to some of the corporate law firms such as Kirkland & Ellis, Latham & Watkins, Paul Weiss, Simpson Thacher and Skadden Arps to take the position that their out-of-court agreements reached last spring would no longer be valid.
The case is Susman Godfrey v. Executive Office of the President, No. 25-5310.