A Reporter’s Notes of the April 23 Perkins Coie Hearing

On April 23, Judge Beryl A. Howell held a hearing on “dispositive motions”—a plaintiff’s motion for summary judgment and a defense motion to dismiss—in Perkins Coie v. U.S. Department of Justice. The firm is challenging President Trump’s March 6 executive order imposing crushing sanctions on the firm that threaten its ability to survive. The firm alleges that the executive order violates its First Amendment rights to free speech, free association, and to petition the government for grievances; its Fifth Amendment rights to due process; its clients’ Fifth and Sixth Amendment rights to counsel; and violates the Constitution’s separation of powers principles.

As discussed below, Perkins is one of four law firms now challenging such executive orders targeting each of them. But this hearing was the first to reach this advanced stage. It occurred at 11:00 a.m. in Courtroom 26A in the annex of the U.S. Courthouse in Washington, D.C.

At the plaintiffs’ table were six attorneys from Williams & Connolly, led by Dane Butswinkas. Six more Williams & Connolly attorneys sat inside the bar, and at least three attorneys from the client, Perkins, sat in the front row of the gallery behind them.

At the government’s table was just one lawyer: Deputy Associate Attorney General Richard Lawson. Lawson and acting Associate Attorney General Chad Mizelle—who is also Attorney General Pam Bondi’s chief of staff—have been the only government attorneys who have signed Department of Justice submissions in the case.

What follows is a partial reconstruction based on a reporter’s notes. It is not a transcript. 

Judge Beryl Howell takes the bench at about 11:05. She observes that there are three motions before her, the plaintiffs’ motion for summary judgment, the defendants’ motion to dismiss, and a government motion to reconsider the scope of her temporary restraining order (TRO), which she issued on March 12.

She then reviews the skeletal history of the case. Executive Order 14230, “Addressing risk from Perkins Coie LLP,” was issued on March 6, 2025. On March 12, at the TRO hearing, and in her resulting order issued the same day, she focused on sections 1, 3, and 5 of the order, which was all Perkins sought to stay at that time. Now, Perkins is challenging all sections, including sections 2 and 4. For that reason, she’d be focusing attention on those sections, though also asking about others for context.

Since there are two moving parties, she says, she’ll arbitrarily choose to start with the government.

Mr. Lawson, she asks, what if anything do you have to add to your papers?

Let me go section by section of the executive order, he says.

That’s confusing, Howell interrupts. Usually a motion to dismiss goes claim by claim. Why did you do that in your brief—go section by section of the executive order—instead?

It’s difficult to discern which counts apply to which sections, Lawson asserts.

The complaint is actually quite direct and clear, Howell protests. It’s pretty clear that all but one of the claims is addressing the entire order.

It was easier to go section by section, Lawson persists, and to lay out the different justifications.

Judge interrupts again. Let me just take stock, she asks. She wants to know if Lawson was present at the last hearing (where Acting Associate Attorney General Mizelle was the lead government attorney).

I was at the counsel table, Lawson clarifies.

Now the judge wants to establish the broader context for the Perkins Coie executive order. As I understand it, she says, there’s a total of six law firms named to date in either executive orders or memoranda. Is that right?

I think that’s correct, says Lawson. I’ve been involved with the four challenges.

Now Howell names the six attacks on law firms she’s aware of: Covington & Burling, which was targeted in a relatively narrow “memorandum”; and then five very similar, and much broader, executive orders targeting Perkins; Paul Weiss Rifkind Wharton & Garrison, which later struck a deal; Jenner & Block; WilmerHale; and Susman Godfrey. Am I missing anyone?

Not that I’m aware.

And Paul Weiss’s order was revoked after it made a deal, she continues. Is that the only one?

Yes.

And how many law firms have avoided executive orders through making deals, Howell asks?

There are two others that had a press announcement with the White House, Lawson says.

Howell says she’s aware of eight, not counting Paul Weiss:

Skadden Arps; Willkie Farr & Gallagher; Milbank; Kirkland & Ellis; Allen & Overy; Shearman & Sterling; Simpson Thacher; Latham & Watkins; and Cadwalader. So nine all together, she says. Is that the universe of law firms that have cut a deal, or are there others that haven’t been made public?

I’m not aware of anything beyond what the court’s mentioned, says Lawson.

Is it fair to say those firms had not made deals with the White House, they would’ve faced executive orders?

I can’t speak to that, says Lawson. I’m not privy to those conversations.

A strong likelihood?, she presses.

Lawson says he can understand the court’s perspective, but just does not know.

There’s general information about those deals that’s been publicly posted by the law firms involved and by the President, Howell observes. But are the precise terms written down and memorialized somewhere?

I’m not privy to those, Lawson responds. I can’t say more than I’ve read in the papers.

We’ll have to wait for the FOIA requests, Howell comments. Next, she draws attention to Executive Order 14244, revoking the original Paul Weiss executive order. She comments that Paul Weiss pledged $40 million in pro bono legal services to certain causes that Trump approves of, and the order specifies that the services must be provided “during my term in office.”

Do all the nine deals Trump has cut with law firms last for Trump’s term in office?, Howell asks Lawson.

I wasn’t coming briefed for these questions, Lawson responds.

It’s all context, Howell says. Do you agree, she asks, that the language about $40 million “during my term in office” makes pretty clear that it benefits this administration?

I’d rephrase that, Lawson says. The time period is during this administration.

Howell then quotes a comment by White House deputy chief of staff Steven Miller: “The numbers are adding up. We’re going to be close to a billion soon.”  Has he met that goal yet?, Howell asked.

I do not know.

She now draws Lawson’s attention to a Truth Social post in the record, in which Trump described the alleged terms of the Paul Weiss deal. It says Paul Weiss will dedicate $40 million in services for a list of causes and other “mutually agreed projects.” She asks how the White House will make known what the mutually agreed subjects are? Isn’t it opaque, she asks?

Lawson says he doesn’t know if it’s opaque. He’s simply not been briefed on it.

Now Howell explores the impact of the deals that other law firms have made on what sorts of pro bono projects those firms will accept going forward.

Perkins was targeted, she says, because it represented Trump’s opponent candidate in 2016 and handled election litigation that was opposed by Trump [according to the explicit terms of section 1 of the Executive Order 14230 and a “Fact Sheet” issued at the same time]. So if a law firm that made a deal represents a cause Trump doesn’t like, does that risk undoing its deal with the President?

I can’t say one way or the other, offers Lawson.

The Paul Weiss revocation order is explicit that millions of dollars of free legal work will be devoted to mutually agreed clients, she says. If it represents non-mutually agreed upon clients, would the president bring back the executive order?

I apologize, says Lawson. I wasn’t anticipating that the other agreements were an issue here.

There’s a lot in plaintiffs’ statement of facts that’s clearly context for understanding this executive order, she says.

I apologize for the lack of granularity of detail of my knowledge, he says.

Do you think that context is not important?

I’m not going to fault the court for asking these questions, but—

Granularity is one thing, Howell interrupts, but not even knowing if these deals are written down?

It’s not my understanding.

No information is written down in any more detail than the public posts?

I just don’t have that information.

Turn to Section 6(b) of the executive order, she says. It says: “This order shall be implemented consistent with applicable law and subject to the availability of appropriations.” Are you aware of any budget request relating to this order?

I’m not aware of any, says Lawson.

Howell continues. Focusing on 6(b), where it says “this order shall be implemented consistent with applicable law,” if Perkins prevails and I find the executive order unconstitutional, does the executive order become dead letter—null and void—under 6(b)?

That’s obviously dependent on the scope of the order, Lawson responds. I’d think that if the court struck down Section 5 totally, then I don’t think any agency could try to implement it.

Howell’s point is that, if she issues a declaration that the executive order is unconstitutional, maybe she doesn’t even need to issue an injunction, because the order collapses by its own terms.

If the plaintiff does prevail, she says, under 6(b) the order is null and void—regardless of whether the four factors ordinarily required to obtain an injunction are met. Doesn’t that do it?

Lawson admits that 6(b) would incorporate an order from this court. He thinks the answer is yes.

Do you want to think about it?, Howell asks. Let me know.

My immediate thought, he says, is that there would be a section by section analysis as to whether an injunction is appropriate. So you still need to conduct that inquiry.

Now Howell turns to a memorandum that Attorney General Pam Bondi and OPM director Russell Vought issued on March 20, ostensibly carrying their obligation, under the temporary restraining order of March 12, to notify federal agencies of the TRO.

There was extra text in that memorandum, Howell points out, that was not included in an earlier version of that memorandum that had been sent out. Howell then reads the extra text:

The Executive Branch’s position is that Executive Order 14230 is permissible, and that the Court’s order was erroneous. The government reserves the right to take all necessary and legal actions in response to the “dishonest and dangerous” conduct of Perkins Coie LLP, as set forth in Executive Order 14230.

I’m interested in the purpose of that extra text, she says. Now, as I read that, it didn’t strike me as necessary. What’s your view? Is that necessary or not?

It was within their discretion, Lawson responds.

Is it necessary or not?, Howell asks.

They viewed it as necessary.

Why?

It was guidance from the attorney general and the Department of Justice and OMB, says Lawson. They viewed it was not simply relaying the order but also guidance for these individuals. The core direction from the court was included.

It was perfectly compliant?, Howell asks. Did you add that extra text?

I was certainly aware of its being added. It was guidance from both agencies.

And I know that somebody wanted to add that language, says Howell. It wasn’t necessary to comply, was it?

I’d put it this way. The court directed that communications go out with guidance. This extra language is beyond the minimum required, but would’ve been within their prerogative. The parties distributing this wanted to communicate that there was ongoing litigation.

That would’ve been in the first sentence, Howell says, expressing the opinion about the court’s order being erroneous. I’m more concerned with the second sentence, though. That sentence referred to derogatory language in Section 1 of the order. (That was one of the sections that Howell’s TRO barred the government from implementing.)

Obviously they viewed the order as giving direction. It went beyond what you directed but was certainly within their right.

I can’t read it as anything but beyond what was directed, Howell persists.

Correct. It was additional language.

It strikes me as a temper tantrum by DOJ, Howell says. Would that be correct?

The court’s entitled to its opinion, says Lawson.

Howell moves on. She turns to section 5(a) of the executive order, which discusses limiting the access of Perkins employees from federal buildings. She asks Lawson if, since she issued the TRO, any agencies had prepared guidance about how to implement this section.

As to the four executive orders being litigated, he says he doesn’t think any guidance has yet been prepared.

Now Howell turns to section 2, concerning security clearances. Section 2(a) calls for immediate suspension of all security clearances pending review as to whether they are “consistent with the national interest.” This provision affects all employees, from partners down to mail-room clerks, she says.

That’s a fair reading, Lawson says. Yes, that’s how we interpret it.

About 24 Perkins employees held security clearances at the time this order came down, Howell says. About 12 of those held the clearances from their former military background. Two held them in connection with their status as military reservists—totally unrelated to their work for Perkins. The suspension of their security clearances harms their ability to do their military service. How is that in the national interest?

I think this order does allow for flexibility, says Lawson. You can have a granular, individualized analysis. I don’t view this as a total ban.

Have all security clearances been suspended?

Lawson doesn’t know, though he says efforts are certainly under way, since this section wasn’t enjoined by the TRO.

Would it be in the national interest for Perkins employees in the military to have their security clearances suspended?

There has to be an individualized determination, Lawson says. The executive order allows for that.

Access to classified information is a not infrequent need in this court, Howell observes. There are Perkins lawyers who have clearances to perform obligations for clients. Was suspension intended to hurt the ability of Perkins attorneys to fulfill their client obligations?

No, I don’t view this as punishment, Lawson avers.

Does it hurt their ability to continue to represent clients for which they need the clearance?

It certainly would be an impediment, Lawson concedes. If you look at this from the 30,000 foot level—

Howell interrupts. She says she had been asking about broader context earlier—about this executive order in the context of all the other executive orders relating to law firms—but Lawson hadn’t been prepared to answer any of her questions.

Lawson presses on. He suggests that this is not punishment but rather simply an exercise of the inherent discretion of the executive. The section is not designed to punish, he asserts; it’s designed to address the concerns of section 1. He cites the broad discretion the U.S. Court of Appeals for the D.C. Circuit granted the executive in making security clearance decisions in Lee v. Garland. 

So it wasn’t done to force Perkins to its knees and help come up with a $1 billion legal fund?, she asks.

I don’t view it that way.

You agree that Garland requires individualized assessments by experts?, she asks.

By the executive.

By experts in national security, Howell says. Here we have an expert, William Leonard, who was at the Department of Defense for 30 years. (Howell is referring to a declaration by Leonard that Perkins filed in the record.) He said that during his career, he frequently approved suspensions. But in every case he knows of, it was based on an individual’s conduct. In 30 years he was not aware of any incident where an individual’s security clearance has been rescinded for any reason other than individual conduct.

Here, Howell continues, there was suspension followed by an assessment. That puts the cart before the horse. Here you went immediately to suspension. Now you say you’ll do an individual assessment.

I’d submit that the Lee line of cases are more controlling than the statement from an expert, Lawson responds.

You’d agree this was a blanket suspension, not based on individual review, she asks? Yes or no? Was it a blanket suspension?

Lawson protests that the section requires the suspensions to be consistent with applicable law and that there is to be a review.

Mr. Leonard writes, Howell says, that “[o]ne of the fundamental hallmarks of the security-clearance review process” is that it’s always based on an individualized assessment. This was a blanket suspension. Is the administration changing the review process?

I don’t know what the expert was referring to, says Lawson. As I read the cases, there is this ability for the executive to make decisions about who is to be trusted with these secrets.

So he has complete power to say that such-and-such a law firm, such-and-such group—I’m suspending that group?, Howell asks.

I don’t concede that there’s no individualized assessment, Lawson protests. It’s calling for it. As I read the cases, limited review is allowed but the judiciary is only asking: Is there a process and did you follow it? You don’t want to be hand-tying a future executive. If they’re worried about a certain group, can they not look into that?

Howell continues reading passages from the declaration. Mr. Leonard describes this provision, she says, as an ad hoc directive harkening back to the days of the Red Scare, where there were immediate suspensions that were not for personal conduct. He says it’s “no different analytically than if a directive were issued to immediately suspend the security clearances of all Jews or Muslims, all members of the LGBTQ+ community, all women, or all registered Democrats or Republicans. These types of non-individualized, mass suspensions of security clearances targeted at groups of individuals threaten to harm our national security efforts.”

I would strongly caution against what you are arguing for, Howell continues, (because it would tie the executive’s hands). The president should have ultimate discretion.

Howell bluntly asks: Is this a throwback to the McCarthy era? The Red Scare era?

No, Lawson says. The order calls for individual review.

It puts the cart before the horse, says Howell. She talks about the energy that goes into making the original, individualized assessments that permits someone to get a clearance in the first place. What happens here is that without any more individualized assessment, the president can say: No more for you, because you’re associating with this group. That’s what happened during the Red Scare. What happened during the McCarthy era. You’re saying that’s the normal process? That the president has discretion to do whatever he wants?

I absolutely think this president and future presidents need to have the ability to move with speed, says Lawson.

Because of national security concerns?

That’s very much a part of it, Lawson says.

Here that term is not used at all, Howell points out. It says “national interest,” which is a very different term. What does “national interest” mean?

It would include national security, says Lawson

It could be broader?

Could be, he concedes.

Howell asks: Could the “national interest” include: the president doesn’t like the person or a group?

When it comes to national security, Lawson says, if the president has an active reason to distrust someone, that’s not something that’s subject to the inquiry of a court.

I’m not clear, says the judge. This is eye-popping. It talks about the clearances being consistent with “national interest”—not “national security.” You concede it’s broader. I want to know how much broader?

It’s clearly connected to national security, says Lawson, because it’s dealing with security clearances.

Why didn’t they just use the term “national security”?

I can’t speak to the drafting, Lawson responds. If the problem disappears by substituting the word “national security,” that’s a very technical reading.

Howell then asks if the findings in section 1 of the executive order—about the alleged wrongdoing of the firm or of certain former members—inform what’s in the “national interest,” as used in section 2?

With respect to national security, it would inform, yes.

And given the fact that section 1 contains derogatory descriptions of the firm’s activity—like “dishonest and dangerous”—is it fair to say that the outcome of these clearance reviews is pre-ordained?, she asks.

I wouldn’t say it’s pre-ordained at all.

Who is conducting this review?, Howell asks.

I don’t have specific names, says Lawson.

Which agencies?

A number of agencies. DOJ is one.

What can you tell me about the review process that’s under way, the judge asks.

My understanding is that the agencies are administering it. Beyond that, I’m not aware.

Is there anything in writing?

Not that I’m aware of.

Does Perkins get to participate in the process?, she asks.

To the extent the rules allow it.

What rules? What agency?

This is what’s reviewed, says Lawson: Is there a process? But the merits [of the decisions reached] are not reviewable.

Let’s turn to what happened with Covington, says Howell. First, there was a February 25 memorandum. It relates to all employees of the firm who assisted Jack Smith. President Trump wasn’t happy they represented the former Special Counsel. The language is different from section 2(a) in the Perkins executive order, though. It’s much more limited in the Covington order, affecting only employees who assisted Jack Smith. Here, it’s the entire firm.

Two months have passed since the Covington memorandum, Howell continues. To the best of your knowledge, is review of security clearances still ongoing with Covington?

I don’t know, says Lawson.

The Covington memo went to eight different agencies, Howell observes. Are all the same agencies involved in the review of Perkins’ clearances?

I assume.

How long will it take? Weeks? Months?

Anything I say would be speculative, Lawson says.

Let’s turn to Executive Order 14237, Howell says. That’s the one from March 14 entitled, “Addressing Risks from Paul Weiss.” Section 2(a) of that order suspended clearances for the entire firm. Then the order was revoked on March 21. When Paul Weiss agreed to give $40 million in services to the president “during my term,” she continues, the original order was lifted. Were there any identifiable national security reasons that would warrant lifting security clearance review for Paul Weiss?

I can’t speak to Paul Weiss, Lawson said. I’d advise caution to the court on looking to other orders to analyze the appropriateness of national security determinations. We should stick to the order at issue here.

We shouldn’t take note of the fuller context of what’s going on in assessing the claim of retaliation against First Amendment protected speech?, asks Howell.

I can’t speak to the rationale of the Paul Weiss orders.

We don’t have to speculate, responds Howell. It’s in the revocation order.

Essentially, you have to have trust in the clearance holder, says Lawson.

Forty million dollars was enough to have the president trust Paul Weiss again, says Howell.

There may have been other conversations about that firm, offers Lawson, that are not reflected in the pro bono issues. Maybe there was something that did speak to the expected level of trust. But that’s not before the court.

There were other things Paul Weiss agreed to in the revocation order, Howell notes. That an outside counsel would do review of its internal employment practices. Mutually agreed upon experts would be hired to do an audit. But other than $40 million, there’s not much else.

That doesn’t mean national security wasn’t part of the conversations, Lawson says.

But it’s not written down or available to the public, says Howell.

It’s not written down and not required to be, says Lawson.

Turn to section 2(b), instructs Howell. It says:

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. [Emphasis added.]

Perkins had argued in its summary judgment brief, as Howell now notes, that this language was broad enough on its face to result in the government depriving the firm of, for instance, postal services, or the use of the S.E.C.’s EDGAR filing system, or pay.gov.

Judge Howell then quoted the government’s brief in response, asserting that “This level of hysteria is not warranted.” In thinking that that’s hysterical, what are some examples of “all government goods, property, material, and services” that need to be stopped?

I view the key portion as being about the SCIFs, Lawson says.

You could’ve just said that, Howell parries.

It’s not going to deny them post office services, insists Lawson.

In your brief, you say, don’t be so concerned, Howell continues. It doesn’t apply to the type of goods and services that are applied to the public more generally. But the text doesn’t say that.

The section is headed “security clearance review,” says Lawson. Everything is dealing with national security issues. SCIFs are tied in directly with that.

So you can’t just look at the language, she says. You look at the location and context.

Howell now turns to section 3 of the order, which aims at cutting off Perkins’ government contracts and those of its clients.

You say the government is acting there as a private party and not as a sovereign, she continues. Assuming you’re right on that, the government is still not allowed to retaliate against individuals, persons, and groups for [First Amendment] protected activity. Right?

There are some cases where termination of agreements can be subject to First Amendment analysis, Lawson concedes. But with these, the executive has a great deal of discretion. There’s inherent discretion given by Congress to the executive. It falls within a well-established body of law. (The government brief argues that the executive branch “has a long history of directing funds to its contractors based on its public policy objectives, including social policy.”)

Howell moves to section 4(a), which directs the chair of the E.E.O.C. to review practices of “representative large, influential, or industry leading law firms.”  How many firms is that?, she asks.

About 20, Lawson suggests.

What metric is used to identify whether a law firm qualifies as representative or “influential”?

I believe it’s an AmLaw 100 list.

So it’s by revenue, she asks? Number of partners? Number of offices?

I think it’s revenue, says Lawson. I may be over my skis.

If you’re going after $1 billion, revenue would be the most [sensible], Howell suggests.

Judge Howell now wants to explore the word “influential.”

I’d say that law firms that have Trump’s trust would be quite influential, she remarks. Are the firms the president turned to for legal advice in the past deemed “influential”? Are they covered by section 4(a)? How many of those firms received EEOC letters?

I can’t speak to that, says Lawson.

Any?

At least one of these probably did some work for him. I can’t speak to that. The larger point—

Howell interrupts. Section 4 says law firms should be investigated for a number of things. One is whether they “permit client access on a discriminatory basis; or provide access to events, trainings, or travel on a discriminatory basis.” Do you know what’s meant there?

I can’t speak to that, says Lawson. I can offer a hypothesis. I know of firms that send racially, ethnically, or gender-based delegations to meet clients.

Is that illegal?

It’s detrimental to the excluded lawyers, who do not get a chance to bolster their client-building, says Lawson.

Would that warrant an EEOC investigation?

I’d have to re-read Title VII (of the Civil Rights Act), he says.

In your brief, Howell says, the administration treats DEI—diversity, equity, and inclusion—as similar to dirty words. It’s quite jarring and ugly. How is the administration defining those words? Why are they so dirty?

I’m not sure I can speak to that, says Lawson. I can flesh out a bit. I think if you look at the history. The important change in the case law is the Students for Fair Admission v. Harvard ruling on 2023. In light of the Harvard decision, anything that stereotypes on the basis of race or sex is verboten in an academic setting. That’s applied in private sector as well.

The 2023 Harvard College case made DEI programs illegal?, Howell asks, skeptically.

I would not go that far, responds Lawson. There had been an academic exception for considering stereotypes. That is over. Viewpoint diversity isn’t the problem. The problem is stereotyping.

Diversity programs mean a lot of different things to a lot of different people. . . . Does plaintiff have a right to say “we support DEI programs” or does that require an investigation? ... The executive order says discriminatory employment activities are hidden through deceptive language. What is the deceptive language the executive order is referring to?

Diversity is not necessarily illegal, Lawson explains. But to call it “diversity” when it’s just applying unlawful targets for hiring or opportunities to build clients—that’s deceptive.

Howell and Lawson then get into a discussion of the “Mansfield rule,” which the government says Perkins uses and which it regards as illegal. According to a government brief, the rule involves setting “formal, measurable targets for increasing diversity in recruitment, retention, promotion, and/or leadership.”

Is the government saying the Mansfield Rule is unconstitutional?, asks Howell.

Yes, says Lawson.

Three hundred sixty law firms are signatories to a statement committing to use the Mansfield rule, Howell points out. Why was Perkins plucked out?

I don’t know.

Do I need to reach a conclusion about the constitutionality of the Mansfield Rule, she asks?

The core point is that targeted results show proof of a process than runs afoul of the Fourteenth Amendment, he says. You’re promoting based on considerations that are improper. It measures success as percentage increases.

This is not a Title VII case, Howell says. I haven’t gotten a ton of briefing on this. It’s a very complicated, murky jurisprudence. Is the government urging me to make that decision here?

To be direct, says Lawson, the inquiry is: Is section 4 a valid provision? Tasking EEOC with the inquiry. Is it plausible EEOC could look at the Mansfield Project? You don’t have to do a full bore analysis. You can leave that to the EEOC.

She returns to her question about why was Perkins, of 360 signatories to the Mansfield Project, plucked out. Twenty have gotten EEOC letters, she says.  Why was Perkins plucked out?

I can’t speak to that.

In your brief, you say that the plaintiff seeks immunity from Title VII. That sounds like an overstatement. Even if the plaintiff prevails, are you reading an injunction as barring EEOC from investigating a complaint concerning discrimination law? If EEOC follows normal processes—filing a charge first—those are the normal processes. Is a presidential “finding” sufficient to trigger a heavy investigation like this?

An order asking for the EEOC chair to review this isn’t a full investigation, Lawson responds.

Is it normal for EEOC to institute an investigation by sending out a multi-page letter asking for data going back decades?

Lawson says he’s not aware of the normal practices.

An EEOC letter sent 11 days after the executive order and six days after the plaintiff sued—not bending the knee—why shouldn’t that temporal chronology be considered highly probative?, Howell asks.

Certainly the order called for it, Lawson acknowledges.

Look at Paul Weiss, Howell says. After it offered $40 million in legal services, no EEOC investigation of it took place.

I don’t want to speculate, says Lawson. The issue is whether this is improper.

Do you agree that it’s retaliatory because the shakedown didn’t work here?, asks Howell.

This section is proper, Lawson insists, whatever context is in play.

Now Howell asks Lawson about the government’s motion to reconsider the scope of her TRO. It revolves around a technical issue of enforcement that could arise if she issues a preliminary injunction. Only eight specific agencies and their chief officers are named as defendants, but Perkins wants to ensure that all federal agencies with which it sometimes works—of which there may be close to 90—will be bound by the injunction. For that reason, it also named “the United States” as a defendant. Lawson has protested that that won’t work, and only the eight named agencies would be bound by an injunction.

Howell asks, what if, right now, she invites an oral motion from Perkins to add all the agencies as formal defendant parties. Lawson argues that that would create a standing issue for the new parties. He won’t consent to an oral motion.

Anything else you want to add?, she asks him. He has nothing more.

At about 1:05 p.m., Perkins’ lead counsel, Butswinkas of Williams & Connolly, finally rises to speak. It’s the first time since he identified himself and his colleagues for the record two hours earlier.

Howell wants him to start with the technical question about the motion to reconsider.

Start with the government’s argument, she says, that having the United States as a named defendant isn’t good enough to have all the agencies be subject to the injunction.

I think the government’s wrong, he says. But I move to amend the caption to add all the agencies. There will be zero prejudice to the government.

Howell says she’ll give Lawson till noon the next day to respond to the oral motion.

Then she asks Butswinkas about how things have changed since he spoke at the March 12 TRO hearing. Since last time, she says, President Trump has issued four additional executive orders and made deals with nine firms. How should that context be taken and inform my analysis?

It is relevant. Without criticizing the law firms that entered into them—

You can, Howell interrupts.

Without going into the potential illegality and disciplinary rules implicated, Butswinkas resumes, they prove our allegation that neither discrimination perceived or real is behind these orders. The orders have targeted some of the most talented lawyers in the world. Those law firms chose silence. That’s objective proof that [that the executive orders impose enormous, firm-threatening burdens]. It’s evidentiary proof. We’re here to decide whether you need to have a trial. The government has given you zero. You’ve heard Mr. Lawson’s “I don’t know” answers. That’s not evidence. We submitted declarations, expert reports, documents.

The deals with other law firms provide a super important contextual point. It proves these artificial explanations for the orders are a complete ruse. First and foremost, look at “national security.” The settlements prove [the executive orders were not prompted by national security concerns]. If so, the settlements would’ve required remedial action to mitigate these national security risks. Not a single one does. The White House explanation of the deals is often different from the law firms’. We don’t know if there are documents. There is no report any place in the record that there was some corrective action taken to prove national security wasn’t a pretext.

Paul Weiss is the best evidence, says Howell, referring to the published revocation order. 

That is the best evidence, Butswinkas agrees.

He then resumes his line of argument: We were waiting to see affidavits or documents that would show what led them to find that 24 people—or 2,400 people—were a risk to national security. There was nothing at all.

The record is undisputed. The executive order was retaliatory. The best piece of evidence is from March 2023: “I am your retribution.” The government questioned the authenticity of none of that evidence.

The executive order and fact sheet—it’s clear on its face—punish the law firm for its representation of clients the president doesn’t like or for bringing litigations the president doesn’t like. All show the executive order is retaliatory.

The government goes section by section, Butswinkas continues, but the entire executive order is retaliatory. The entire executive order is driven by section 1. You are told in section 1 that there’s a finding of racial discrimination. A finding of violation of laws. Public distrust.

We’re told there will be investigations and guidance issued. They’re a sham. It’s all dictated by section 1.

At this point Judge Howell interrupts to ask whether, if she grants a declaratory judgment finding that the executive order is unconstitutional, the language of section 6(b) would cause it to collapse on its own, obviating the need for an injunction.

I think you’re right, says Butswinkas. That’s a great point. But I think you need an injunction. What an injunction gives you is enforceability. [He means that if the government violates her order, it’s easier to enforce an existing injunction than to file a new lawsuit.]

He then moves to section 2(a), about security clearances. We have two arguments why 2(a) should be covered by the permanent injunction. The first is a trial lawyer argument. The second is an appellate lawyer argument.

The trial lawyer argument is: National security here is a complete pretense. If it’s not a national security decision—if it’s a pretext—Lee v. Garland is irrelevant. Then you need to look and see if there’s evidence.

Howell has a question: The government’s position, she says, is that the president has absolute discretion. It’s a nonjusticiable issue. He gets complete deference.

You have an evidentiary record to weigh the credibility of the national security claim, Bustwinkas responds. You have a set of comments by the administration, before and after the order, that do not attribute their retaliation to national security (but to other factors, like who the firm represented). It’s added after the fact. They just sprinkled it in.

Section 2 doesn’t even mention the words “national security.” It says “national interest.”

Who are the 24 people (whose clearances were suspended)?, Butswinkas asks rhetorically. I’ll bet you [Lawson] can’t even tell you their names. In addition, the executive order doesn’t target the alleged offending parties (who, for instance, represented the Hillary Clinton campaign in 2016 or litigated election cases in 2020). Those people are not in the law firm anymore. Don’t you think they’d be a similar order going after them?

Also, Butswinkas adds, the allegations are very old—going back to 2016. The president had four years in office after that (during his first term) yet never raised a national security issue. It took nine years to implicate national security.

This sounds more like national insecurity than national security.

Second, says Butswinkas—moving to his “appellate lawyer” argument—you can’t do blanket objections to security clearances. There was nothing individualized here.

For both reasons, section 2(a) should go.

You referenced the Red Scare, Butswinkas continues. This is exactly that. It’s worse. It’s even more punitive. It’s exactly the kind of conduct the Constitution forbids.

Now Butswinkas turns to section 2(b), the section with broad language about denying Perkins employees “government goods, property, material, and services.” There’s an old saying, Butswinkas says: Just ‘cause you’re paranoid doesn’t mean they’re not out to get you.

You’re guess is as good as mine about what that means. Postal services? Pay.gov? Amtrak?

[Lawson’s] trying to say it must be national security related, Butswinkas continues. But it doesn’t say that. The government’s reasoning on 2(a) and 2(b) is inconsistent. [Lawson] claims 2(a) is individualized. But 2(b) is sweeping. It doesn’t follow.

That’s what I have on section 2, Butswinkas says, unless your Honor has questions.

No, she says decisively, as if she’s encountered few questions in her career as crystal clear as this one.

Butswinkas then moves to section 4. He argues that the EEOC would have no authority to investigate the firm but for section 4. Congress required an EEOC investigation to begin with issuance of a charge. But the executive order jumps over that step. So the order isn’t using congressional authority, Butswinkas argues. Congress also required confidentiality at the early stage of an inquiry. The government posted this inquiry on the EEOC web site.

There was also no due process, Butswinkas adds. Notice, right to be heard, evidentiary submissions. To know what the charge is. All those things are absent.

The EEOC carried out this directive, which is retaliatory for viewpoint discrimination. The process is irretrievably tainted by the purpose section (section 1), which has already concluded that Perkins has violated the law.

It gives you the answer in paragraph 1, and then tells you to investigate in paragraph 4. It’s a complete sham.

It’s attack on DEI is classic viewpoint discrimination, he adds.

The only other things, he says, are some threshold technical arguments, like standing, that the government has raised in its motion to dismiss. He runs through those quickly.

He closes by arguing that this case is not about politics. It’s about what his mother called p-all-itics. It’s about what everyone should want. Democracy may get bruised, but it won’t break. It will again pass the test of time.

He’s done. Howell offers Lawson rebuttal, but he passes. He agrees to submit his written response to Butswinkas’s oral motion to amend the caption by noon the next day.

At about 1:35 p.m., the hearing ends.