The Trump administration is trying to persuade a federal appeals court to restore President Donald Trump’s executive orders against Houston-based Susman Godfrey and three other law firms, arguing that a president’s power to declare the firms national security threats is “unreviewable” by the courts.
In a 68-page brief filed late Friday with the U.S. Court of Appeals for the D.C. Circuit, the Trump administration argues that the appellate judges should reverse rulings by four federal district court judges because the president should not have to prove that his actions were retaliatory against the four law firms in deciding that they are threats to national security.
The DOJ also argues that President Trump’s executive orders “address invidious racial discrimination and national security risks relating to certain law firms.”
“Only the President may decide whether ‘active security clearances’ held by plaintiffs’ employees ‘are consistent with the national interest.’ When the President decides they are not, courts may not interfere, let alone compel the President to continue giving private lawyers access to classified information,” DOJ Deputy Associate Attorney General Abhishek Kambli wrote for the government. “Nor may courts enjoin or otherwise interfere with routine directives requiring Executive Branch officials to investigate and enforce existing anti-discrimination laws.”
“The district courts’ contrary rulings not only infringe on the nation’s chief law enforcer’s unreviewable authority to set priorities, but also defy common sense given that, for years, plaintiffs publicly bragged about their racial hiring practices that were noted in the executive orders,” the DOJ states.
Last spring, President Trump issued two-page executive orders against Susman Godfrey and the three firms, claiming that the firms, their lawyers and the clients they represent “weaponized the American legal system and degrade the quality of American elections.” The president also accused the firms of illegal racial discrimination in their hiring practices.
Susman Godfrey and the other law firms sued the Trump administration in federal court. Last 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 that also violates the First Amendment of the U.S. Constitution.
Susman Godfrey served as legal counsel to Dominion Voting Systems in its defamation lawsuit against Fox News and other media outlets that broadcast claims by President Trump and his supporters that Dominion’s electronic voting machines helped rig the 2020 election. Fox News settled the lawsuit for $787.5 million instead of going to trial.
The very same day that the White House released the executive order against Susman Godfrey, lawyers for the firm won a huge court victory for Dominion in a billion-dollar defamation case against the conservative news channel Newsmax Media in another 2020 presidential election dispute.
In its brief Friday, the DOJ cites the landmark 1803 Supreme Court case Marbury v. Madison.
“The President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience,” Chief Justice John Marshall wrote.
In hearings at the district court, lawyers for the four firms argued that there was no evidence that the lawyers at those firms posed a national security threat. They pointed to identical executive orders issued by President Trump against other law firms, including Paul Weiss, stating that they were also national security threats. But the president immediately rescinded those EOs after the corporate law firms agreed to provide tens of millions of dollars in free legal services to Trump-approved causes and clients.
The DOJ brief describes the argument as “extrinsic evidence” and “wholly irrelevant.”
“The Constitution singularly vests responsibility over clearance determinations in the President as Commander in Chief,” the DOJ wrote in its brief. “The government does not have the burden of proving that the President’s determination was not pretextual.”
The Justice Department argues that the appellate court “should reverse the three district courts” because their rulings wrongly “enjoined the pure government speech.”
“The First Amendment is not a shield to prevent the government from exercising its authority to combat the unprotected conduct of racial discrimination in hiring or litigation misconduct by former government attorneys and others,” the DOJ brief states. “And beyond their First Amendment arguments, all plaintiffs muster are thin arguments based on scattershot constitutional provisions ranging from due process to separation of powers to right to counsel.”
In previous arguments, lawyers for Susman Godfrey and the other firms argued that nothing in the judicial orders prevents President Trump from saying anything — it only prevents him from using the power of the federal government to enforce his speech via the executive orders on the firms without due process.
Finally, the DOJ argues that the executive orders “do not prevent them from continuing the practice of law, and the record does not establish that anything of the sort.”
“The Executive Orders do not interfere any purported ‘property interest in contracts with clients,’” the DOJ states. “Whether a client or hypothetical client decides not to retain Susman in light of the Executive Order is an ‘independent action of some third party not before the court and therefore not a basis for standing.’”
The DOJ brief does not address an amicus brief filed last week by an organization called GCs United, which represents 800 corporate general counsel and chief legal officers, which claims that President Trump’s EOs are “impacting their ability to hire or retain the targeted law firms” and impeding “the willingness of other companies and law firms to challenge or defend against federal action.”
“Current general counsels face a significant constraint that makes public commentary difficult: speaking publicly about the orders’ impact on their companies risks inviting the very federal retaliation they are describing,” GCs United argues.
The case is Susman Godfrey v. Executive Office of the President, 25-5310.
Editor’s note:The Texas Lawbook has published more than two dozen articles on the litigation between President Trump’s administration and the four law firms. A list of those articles and a full timeline of the litigation can be found here.