On Monday, the US Department of Justice asked the Court of Appeals for the District of Columbia Circuit to drop its appeals of lower court decisions that had ruled President Donald Trump’s executive orders against major law firms unconstitutional.
The orders targeted prominent law firms, accusing them of workplace discrimination under the guise of diversity and of “weaponizing” the justice system against Trump and his allies. The orders aimed to end their government contracts and limit their employees’ access to government buildings.
Each firm challenged the executive actions in court and won. Last year, four federal judges ruled the orders unconstitutional, saying they violated rights like free speech and due process. As the DOJ has dropped its appeals, these rulings will stand.
“This is a big win for whistleblowers,” according to Stephen M. Kohn, founding partner of whistleblower law firm Kohn, Kohn and Colapinto, LLP. “Whistleblower clients are often unpopular and targeted by the rich and powerful; the DOJ’s decision not to pursue the appeals is a victory, protecting our profession and the rights of our clients.”
In April, Kohn’s firm joined other leading law firms in filing joint amicus curiae briefs supporting Perkins Coie, Susman Godfrey, WilmerHale, and Jenner & Block. They sought a permanent injunction against the White House’s Executive Orders, which critics said were retaliatory against firms for their political work and diversity hiring efforts.
A key ruling came in May, when Judge Beryl Howell of the U.S. District Court for the District of Columbia granted summary judgment to Perkins Coie, finding that the executive order targeting the firm had unlawfully retaliated against it for constitutionally protected speech. Many called it a historic decision, as Howell found the executive order violated the firm’s due process rights and clients’ freedom to pick their legal representation.
“Judge Howell’s landmark 102-page order rejecting a Presidential attack on the independence of law firms reaffirmed the importance of people, often unpopular with those in power, including whistleblowers, having access to attorneys,” said Kohn, a leading authority on whistleblower law. “Her order should be required reading in every high school civics class. Bar associations should require it for law practice approval,” he added.
By dropping its appeals, the Justice Department has made the federal judges’ rulings, including Howell’s, permanent. These rulings, finding the executive orders targeting the firms unconstitutional, now mark the end of the litigation.
“The response of the legal profession, which included both leading defense firms and leading whistleblower firms, demonstrates the absolute importance of the legal profession standing up to any attempt to undermine the right of clients to choose their lawyers,” Kohn stressed. He noted that whistleblowers should check whether their attorneys were among those listed as amici in briefs fighting for their rights.
“The law firms that put their names on the amicus briefs challenging these orders, especially without knowing the outcome of these cases, or whether they would also become targets of retribution,” should all be thanked. Those who shied away should reconsider their failure to rally behind the independence of Bar,” said Kohn.
The lists of the firms challenging the retaliatory anti-attorney Executive Orders can be found in Appendix A of the following Amicus Briefs:
