Our Reporter’s Notes on the April 23 WilmerHale Hearing

On the afternoon of April 23—the same day a different judge heard a similar hearing in the same courthouse relating to law firm of Perkins Coie—U.S. District Judge Richard Leon of Washington, D.C., heard arguments on outcome-determinative motions in Wilmer Cutler Pickering Hale & Dorr v. Executive Office of the President. The law firm, known as WilmerHale for short, alleges that President Trump’s executive order of March 27, denouncing the firm and imposing grave impediments on it, violates at least 11 different constitutional principles.

With the hearing starting only 25 minutes after the Perkins Coie hearing ended, many spectators who tried to squeeze in a bite of lunch between the two arrived too late. Court officers barred entry to the by then packed gallery of Courtroom 18, which can hold about 80 or 90 spectators.

At the plaintiffs table were Paul Clement—a former U.S. solicitor general under President George W. Bush—and three lawyers from his firm: Erin Murphy, Matthew Rowen, and Joseph DeMott.

At the defense table was Deputy Associate Attorney General Richard Lawson, alone. Lawson had also handled the Perkins hearing—similarly solo. The narrative that follows comes from our reporter’s notes. It is not a transcript. 

***

Judge Leon takes the bench shortly after 2 p.m. He is heavy-set, balding, soft-spoken, and understated.

Since each side has a motion before him—the plaintiff’s motion for summary judgment and the defendants’ motion to dismiss—he says he’ll give each side 20 minutes to present and 10 minutes for rebuttal on its own motion. He’ll hear first from Clement, representing the plaintiff.

In granting WilmerHale a temporary restraining order (TRO) on March 28, Clement begins, this court recognized that the retaliatory nature of the March 27 executive order is “clear from its face,” and that it threatens the firm’s “very survival” and “the justice system at large.”

Since then, he continues, the government has filed two briefs. But nothing in them undermines your twin conclusions, that the order is retaliatory and inflicts irreparable harm on WilmerHale and the adversarial system of justice more broadly.

Clement says the court should now grant permanent relief barring enforcement of the entire order. (Leon’s temporary restraining order had only barred enforcement of sections 3 and 5.)

Your position, asks Judge Leon, is that the court should analyze the order as a whole—not section by section?

Yes, Clement says, though he’s happy to go section by section if Leon likes. But the order was designed as a whole, he asserts.

Section 1 explains exactly what motivated the president’s actions, Clement asserts. It says that Wilmer’s “egregious” actions in representing people pro bono and taking certain positions makes them ineligible to hold security clearances (under section 2); have access to government contracts (in section 3); or have access to government buildings (in section 5).

Leon asks how he should approach the issue of severability—whether some sections should survive even if others are struck down.

Severability in the context of a statute is usually a question of legislative intent, Clement says. Here, it’s a question of the president’s intent. There’s no severability clause in the order. So the question is: Was it intended to operate as a whole or section by section?

I think it’s crystal clear, he proceeds, that it’s all tied together. Section 1 explains what motivated all the sections.

What happened with the law firm of Paul Weiss Rifkind Wharton & Garrison adds further support for viewing the order as a whole, he argues. Paul Weiss faced the same operative provisions in an executive order issued on March 14. But on March 21, a later executive order repealed the whole thing. It didn’t keep, say, the security clearances or restrictions on government buildings while rescinding other sections.

Clement thinks that’s particularly telling with respect to the security clearances, he says. When you look to the agreement Paul, Weiss made with the president, there wasn't anything specific mentioned about national security or the national interest or anything else. It was mostly about providing $40 million in pro bono services that were more to the president's liking.

So not only is the order structured in a way that suggests it should stand or fall together, Clement argues, but we have the Paul, Weiss experience, too, where the order was revoked in toto.

Judge Leon then invites Clement to analyze the order as a whole.

The retaliatory intent in section 1, Clement says, pervades the entire order. As the court indicated in its TRO, that’s evident on face of the order. I’m used to situations where you need discovery to suss out unconstitutional intent. Here, the president made it easy for us. He's made his intent crystal clear in Section 1, and that retaliatory intent permeates the whole order and requires the invalidation of the whole order.

But it's not just the retaliatory intent that's problematic, Clement continues. It’s the viewpoint discrimination.  Here, he turns once again, to the Paul, Weiss experience and that of the law firms that have made agreements to avoid such executive orders. If you had any doubt about the viewpoint discrimination in the order itself — and I think it would be hard to have doubts — the president was also motivated (according to Section 1) by WilmerHale's welcoming [former Special Counsel Robert Mueller III] back to the firm and applauding Bob Mueller for his career of public service.

So we have viewpoint discrimination right there. But then the actions of these other firms reinforce that because in order to get these orders lifted or obviated, they've agreed to provide legal services for some of the president's favored causes.

So in the order itself, Clement continues, we know which viewpoints the president disfavors; and in the deals that have been made with other law firms, we’re told what viewpoints the president favors. So the viewpoint discrimination is utterly obvious here.

Now Clement shifts gears. While the First Amendment problems in the order are its most glaring flaws, he says, the most pernicious actually relate to separation of powers

This problem has two elements, he says. The first, and foremost, is essentially legislative in nature. No legislation supports this authority. If Congress passed this, it would be as plain a bill of attainder as we’ve seen in this country for decades & decades & decades.

To illustrate, he mentions a case that’s not in his brief: Ex Parte Garland, a U.S. Supreme Court case from 1866. The punishment there was that Confederates were being barred from practicing in courts of law. And the Court invalidated that, Clement explains. It said: Who gets to appear in courts is an issue for Article III courts. It’s not an issue for Congress. It’s not an issue for the executive branch.

That’s what's particularly pernicious here, Clement stresses, because the things that are the basis for the retaliation in Section 1 are almost exclusively representations before the Article III courts.

Further, he observes, it turns out that in almost every one of the firm’s representations that the president objects to in either Section 1 or a Fact Sheet that accompanied the executive order, WilmerHale prevailed in court. So there was no weaponization. In none of these cases was an Article III court sanctioning WilmerHale for misbehavior, misconduct, or misleading the court.

For the executive branch to impose punishment for those representations is a grave threat to rule of law, Article III, and the separation of powers, Clement asserts.

The problem goes even deeper, he continues, because the signal this sends to the whole bar is: Watch out. Your behavior can be punished. And there's just no way to practice law under those circumstances. If I have to stand up here and argue in front of the court today with one eye on how this is going to be perceived by the executive branch, I might as well go sit down.

Now Clement wants to address a couple points the government has made in its briefs.  Over and over again, he says, the government says that all section 5 does—the section that threatens to deny WilmerHale employees access to federal buildings and employees—is ask for agency guidance to be issued.

That gets the government nowhere, he asserts. Because there’s no guidance consistent with our Constitution that is possible.

There’s already guidance for getting into government buildings, he explains. For the post office, anybody can get in. For the Justice Department, you need an appointment. The only guidance needed here is on how Wilmer lawyers’ access will be disfavored compared to that of all other lawyers in town. So no guidance can fix the problem, which is that a handful of law firms are being singled out based on their representations for disfavored treatment.

The other problem with the government’s argument, Clement explains, is more practical. Clients can’t wait for guidance. 

Right now, today, WilmerHale is making pitches for business against other law firms who are not constrained by similar executive orders. Clients have a choice: firms that don’t have to wait for guidance, and firms that may become useless to them or hamstrung once the guidance comes out.

The same is true, says Clement, with respect to an argument the government makes about the fact that the order contains language stating that agencies should only exclude WilmerHale attorneys from access “to the extent consistent with law.”

One might say that’s window-dressing, interrupts Judge Leon.

Window-dressing at best, Clement agrees.

With about five minutes left on Clement’s clock, the judge asks him to address the expert report of J. William Leonard. Judge Leon notes that Leonard stressed, based on his 30 years of experience in security and on the individualized nature of security clearance grants, that this order flies in the face of all the experience he’s accumulated.

So your Honor has well summarized the Leonard declaration, says Clement. The individualized nature of this goes not only to the decision to grant or revoke the security clearance. It also goes to the suspension. If a security clearance holder is arrested tonight, under suspicious circumstances, the national security community doesn’t have to wait to suspend until they go through an individualized formal process. They can suspend immediately. But only based on the fact that the individual has been arrested under suspicious circumstances.

It's all individualized.

What there isn’t any room for, says Clement, is suspension across the board of everyone associated with WilmerHale.

There were about 20 lawyers at WilmerHale who’d been granted security clearances, Clement says, and each was granted clearance on the basis of the kinds of individualized investigations that Leonard details. Thirteen factors are taken into account. All 20 were flyspecked on those 13 factors and granted clearances. Some have held them for years.

And so to take something that is only granted on an individualized basis and then suspend it across the board on a non-individualized basis, I think, is really unprecedented.

Leonard actually goes further, the judge interjects. He says it can hamper national security if you start granting, suspending or revoking clearances based on class treatment rather than individualized assessment.

Exactly right, says Clement. It’s inconsistent with the statutory directives from Congress.

And that has to be the rule, Clement adds. Otherwise you could use these security clearances to get around all sorts of constitutional provisions. A new president could come in and say: Everyone who’s a Democrat is suspended. Or everyone who’s Republican is suspended. We don’t have a spoils system in our civil service.

Clement’s now finished his opening presentation, and Lawson, for the government, rises to give his. 

The court asked about whether we should review the order as a whole or section by section, Lawson says. We’ve attacked the issues section by section in our briefs.

At a very high level, the biggest point of difference between the parties is whether the main operative sections of the order— sections 2, 3, 4, and 5— are acts of executive discretion or punishment.

As I read the cases, retaliation has to involve some level of punishment. We view sections 2, 3, 4, and 5 as not punishment, just the effort of the executive—

Leon interrupts. Isn’t the threat to the business of a law firm punishment?, he asks. The threat alone? How can that not be punishment?

Let’s take the sections individually, Lawson responds. I’m disputing that the order and its sections constitute threats or punishment. They are about exercises of executive discretion.

He ticks off the operative sections.

Section 2, regarding security clearances, he says. There is great deference given to the executive with security clearances. 

Section 3, regarding contracts. The law gives extraordinary discretion to the executive.

Section 4 is a direction to the EEOC [U.S. Equal Employment Opportunity Commission] to look into certain practices.

Section 5, regarding access to staff and offices. Could guidance be issued that prevents a Wilmer attorney from going to the Bureau of Prisons to meet a client?, he asks, rhetorically. It could turn out that way, he concedes. But no guidance has been issued that does that yet. So the issue is not ripe.

Leon interrupts again. How would clients take that response?, he asks. If Wilmer told its clients that the issue is not ripe yet, so don’t worry about it?

I can see the court’s concern, Lawson replies. But the issue there would be whether that section is actionable until we see what it says. Until we see what is actually prohibited.

Now Lawson addresses Section 4. This is a classic example of an executive having a concern on a legal issue—improper use of race, sex, and ethnicity stereotypes in private practice—and directing the EEOC to take a look.

Returning to Section 3, about cutting off WilmerHale’s government contracts and those of its clients, Lawson says: We discussed this at a prior hearing. There’s a large body of case law supporting the use of executive orders to further public policy & social policy through the procurement power.

Lawson then returns to Section 2, about security clearances. He says that clearances are suspended pending review. So review will ultimately be individualized.

The expert’s statements are what they are, he concedes. But if the court were to adopt the expert’s view, there is a risk that in an immediate emergency, the executive’s hands would be tied.

Isn’t that what a suspension is for?, protests Leon.

Yes, Lawson replies, but what if it’s a larger group—two or three or five or a hundred people the executive has a concern with? This court’s order is going to drive how future issues are dealt with.

At the 30,000-foot level, Lawson repeats, are these punishments or are these a valid exercise of executive discretion?

Lawson now asserts that Section 1—which the plaintiff is also trying to enjoin—is protected government speech. It’s almost along the lines of a press conference, he says.

Speaking of speech, says Judge Leon, address the First Amendment issues Mr. Clement outlined.

As to the First Amendment, says Lawson, the issue is: Is this retaliation or not? Is this punishment or not?

It's pretty clear it's retaliation, interjects the judge. On the face of it.

These concerns are properly within the president’s realm to have an opinion about, Lawson protests.

No one is concerned about the president’s opinions, Leon parries. They’re concerned about his actions.

Lawson goes back to his section by section analysis. They’re all within the president’s discretion, he repeats.

Comparing the WilmerHale executive order to the bill of attainder case Clement has cited, Lawson says: None of these sections bar anyone from the ability to practice law.

He acknowledges that there’s “a parade of horribles” that could theoretically occur if section 5 guidance comes out and it’s as bad as Wilmer fears. But it doesn’t have to be, he claims.

What do you mean?, asks Leon, incredulous. What does that mean?

Guidance can be consistent with the constitutional concerns, he insists. There is a way of drafting it. 

To the degree there’s a concern about this being punishment, look at the cases where punishment has been found, and it’s a person being deprived of the ability to engage in their vocation.

Now Lawson returns to his section by section analysis. There’s no right to national security clearances, he says. No right to government contracts. No right to violate Title VII. As to access to buildings, staff, and government employees, it’s within the discretion of the executive to set boundaries. So all of these can fall within executive discretion granted by Congress. Granted by the Constitution.

To the extent the court is inclined to grant any of the relief sought, Lawson continues, extraordinary care must be taken not to tie the hands of the executive.

What if the court disagrees on going section by section, Leon asks, and treats it as a whole? Which is how the court is leaning, he adds. I’ll give you a little heads-up there.

From that, says Lawson, I'm assuming the court is concerned that, as a whole, this is an attack on First Amendment rights for representing certain—

It kind of looks that way, says Leon.

Section 1 is broadly written, says Lawson. Not all of it supports each section equally. He turns to section 4 as an example (directing the EEOC to launch an inquiry of WilmerHale). What could possibly be wrong with the executive urging an agency to investigate an area of concern? It’s very hard to say that’s retaliatory.

I don’t know if that answers the court’s questions, Lawson says.

Not particularly, Leon answers. But keep trying, if you wish.

Lawson returns to his main themes: There’s no punishment here; no guidance with respect to section 5; and any relief will tie the hands of future executives.

Now it’s time for Clement’s rebuttal. But before he starts, Judge Leon comments, about Lawson: I think he’s working on a different case.

I agree with you, says Clement.

First, Clement proceeds, punishment isn’t the test. The prohibition on viewpoint discrimination is not limited to being punished. The same is true of retaliation.

The question of retaliation is whether the action would influence somebody of ordinary firmness, says Clement. Referring to the deals made by other law firms to avoid being hit with similar executive orders, Clements says they demonstrate beyond a shadow of a doubt that, whether this is punishment or not, the orders would influence the judgments of law firms of ordinary firmness. It takes, frankly, a law firm of extraordinary firmness to be in court challenging these things.

In any case, he adds, we do have punishment. The idea that this isn’t punitive is somewhat bewildering.

It's retaliatory, says Judge Leon. There's no question in my mind.

Exactly, says Clement. In the context of a law firm to say you’re not going to get the access to buildings and clearances that your competitors have, and your clients have to make disclosures to the government that are different from peers’ clients—that qualifies as punishment.

And I think even my friend from the government would agree that a $125 million fine is punishment, Clement argues. The last ones to settle were willing to pony up $125 million in pro bono services in order to avoid this kind of executive order. So those peer firms' actions speak louder than words, and they say that being subject to one of these executive orders is worse than a $125 million fine. So the punishment here, I think, is clear beyond cavil.

The second thing he wants to address is the notion that Section 1 contains protected “government speech.” Clement says that argument was rejected by the Supreme Court in National Rifle Association v. Vullo.

The Supreme Court is saying there that you can’t do what this executive order proposes to do, Clement argues. There the regulator in New York was pressuring people not to provide services to the NRA [National Rifle Association]. If the government wants to go after somebody and their speech, it’s effective to go after third parties who provide services to them because they won’t have an incentive to stand up for—in that case—gun rights. So if pressure is imposed on them, they’ll fold.

This executive order puts pressure on clients, Clement continues. Clients are skittish. They’re nervous. They want to make sure their lawyer will be there throughout the representation. That they’ll be able to get a fair hearing in a government building. That they’ll be able to get in the door of a government building.

Next, Clement turns to Lawson’s arguments about executive discretion. The discretion of the executive branch does not extend to retaliation, he says. It does not extend to viewpoint discrimination. It does not extend to providing punishment without any due process, any notice.

I’m a big believer in executive discretion, he continues. But it’s always limited by the Constitution. Our complaint shows 11 different ways that this executive order violates the Constitution.

Last, Clement addresses the remedy he seeks. If the court is inclined to look at the executive order as a whole, he says, it’s quite straightforward to say the order is unconstitutional in toto. It’s unconstitutional root and branch.

In terms of who in the government should be subject to an injunctive order from the court, he continues, that order needs to be very, very broad. Wilmer needs the relief to be comprehensive.

Judge Leon asks Clement to talk about the fact that section 2 refers to “national interest” instead of “national security.” Presumably national interest is broader than national security, Leon says.

It has to be broader, Clement agrees. No court decision in the D.C. Circuit or Supreme Court says that you have to defer to the president’s view of national interest, he says.

They can’t quite bring themselves to say that WilmerHale lawyers—all 20 who have gone through the process of getting security clearances—pose a national security risk. So they fudge and talk about national interest. It’s kind of offensive to those really concerned about national security.

Let me finish on this note, says Clement. My friend says: You don’t want to tie the hands of the executive. But there are some subjects where the executive’s hands should be tied. That gets to retaliation. To viewpoint discrimination. Interference with separation of powers and representations before Article III courts.

If the executive is inclined to interfere with the traditions that are essentially necessary to have rule of law in the adversarial system of justice, the president’s hands should be tied.

Clement’s done, and now Lawson takes his final, brief rebuttal.

First, he tries to distinguish Vullo. There, he says, the regulatory body was coercing third parties to cease doing business with another entity. That qualifies as punishment. We don’t have that here.

This is the executive determining: Who should we trust with secrets? Who should we contract with?

I understand the court’s concerns, Lawson says. But I respectfully disagree it’s retaliatory. To the extent the court is inclined to grant any relief, it will be tying the hands of the executive with consequences that could only become visible in the long term.

That completes the lawyers’ arguments.

Judge Leon remarks that there are so many issues of truly unusual, major importance here, that his ruling won’t be turned out in a matter of days. It will be more like weeks.

He adds: Hopefully, it will not be too late.

Then he calls the court into recess.