DOJ Un-Drops Its Appeal Against Law Firms, Files Brief That Gets The First Amendment Exactly Backwards

from the such-a-waste-of-time dept

On Wednesday of last week, I wrote a post about how the Trump administration had quietly given up defending its unconstitutional executive orders targeting law firms. The DOJ was dropping its appeals, the firms that fought had won, and the firms that capitulated—led by Paul Weiss and their nearly $1 billion in groveling pro bono commitments—were left holding a very expensive bag.

What I did not realize, because this administration launches new absurdities faster than any human being can reasonably track them, was that the day before I published that piece (but about the time I was writing it), the DOJ had already filed a motion to take back its voluntary dismissal. And then, by Friday, the DOJ had filed a full appellate brief seeking to overturn all four district court rulings that struck down the executive orders.

So, to recap the timeline here: On Monday, the DOJ told the DC Circuit it was voluntarily dropping its appeals. All four law firms agreed. Done deal. On Tuesday, the DOJ filed a motion to withdraw its own voluntary dismissal. On Wednesday, I published an article mocking the administration for giving up. On Friday, the DOJ filed a 97-page opening brief arguing that the executive orders were “well within the Presidential prerogative.”

My only defense for coming in a day late is that covering this administration in anything close to real time is effectively impossible.

Let’s start with the procedural absurdity before we get to the substance—because the procedural absurdity is really something.

The motion to withdraw the voluntary dismissal is a remarkable document, mostly for how little it says. The entire operative section is barely over a hundred words. After all parties had agreed to the dismissal, the DOJ simply asked to take it back, offering no explanation whatsoever. The law firms’ collective response, included in the filing itself, was about as polite as you’d expect:

“Plaintiffs-Appellees oppose the government’s unexplained request to withdraw yesterday’s voluntary dismissal, to which all parties had agreed. Under no circumstances should the government’s unexplained about-face provide a basis for an extension of its brief.”

“Unexplained.” That word does a lot of heavy lifting. The DOJ’s motion doesn’t even try to explain why it changed course. There’s no “upon further reflection” or “new developments have arisen.” Just: forget what we agreed to yesterday, the court hasn’t formally granted the dismissal yet, so we’d like to un-dismiss please.

As of this writing, the court hasn’t ruled on that motion. But the DOJ apparently decided not to wait around and went ahead and filed its full appellate brief on Friday anyway.

The opening paragraph of the DOJ’s appellate brief is genuinely one of the more audacious things I’ve read in a legal filing, and I say that as someone who reads a lot of legal filings:

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. And they cannot interfere with Presidential directives instructing agencies to investigate racial discrimination that violates federal civil rights laws.

Let’s focus on those first two sentences, because they reveal something important about how the administration is framing this case—and how badly they’re getting the First Amendment backwards.

“Courts cannot tell the President what to say. Courts cannot tell the President what not to say.”

Well, sure. In the most general sense, that’s true. The president can stand at a podium and say whatever he wants. He can say mean things about law firms. He can call them names on social media. He can go on television and express his displeasure with their client choices. That’s all government speech, and it’s all fine.

But that’s… not what happened here. What happened here is that the president issued executive orders imposing concrete sanctions on specific law firms—revoking security clearances, directing the termination of government contracts, restricting access to federal buildings, banning the hiring of their employees—because those firms represented clients the president didn’t like and employed lawyers who had been involved in investigations the president found personally disagreeable.

The brief tries to frame the courts’ injunctions as an attempt to “silence” the president. But nobody is trying to silence the president. The president can talk about these law firms every day from now until the world ends. What the courts said—four separate times—is that the president cannot use the machinery of government to punish law firms for their constitutionally protected legal advocacy. There’s a rather fundamental difference between speech and sanctions, and pretending not to understand that difference is doing a lot of work in this brief.

This gets at something we talk about regularly here at Techdirt: the First Amendment is a restraint on government power. It prevents the government from using its authority to suppress or punish private speech. When the DOJ frames this as courts trying to control the president’s speech, they’ve got the vector of the First Amendment claim pointing in exactly the wrong direction. The law firms aren’t saying the president can’t talk. They’re saying the president can’t retaliate against them for their own protected speech and advocacy. Those are two wildly different things.

The brief actually cites NRA v. Vullo, the 2024 Supreme Court case that we’ve written about a few times. For those unfamiliar, that case involved New York’s former superintendent of financial services, who was accused of using her regulatory power to coerce financial institutions into cutting ties with the NRA because she disagreed with the NRA’s advocacy. The Supreme Court held—unanimously—that government officials using their regulatory authority to punish or suppress disfavored private speech can violate the First Amendment, even if the official frames their actions in terms of legitimate regulatory interests.

The DOJ cites Vullo in the context of arguing that the district courts went too far in enjoining “future actions” based on Section 1 of the executive orders, quoting the district court’s ruling in favor of one of the law firms (Jenner & Block) favorably:

Significantly, even the district court in Jenner recognized this. That court declined to “enjoin future actions taken pursuant to Section 1,” because “Section 1 does not direct any action.” JA2205–06. But “shorn of its enforcement mechanisms, Section 1 is nothing more than the Executive Branch ‘saying what it wishes.’” Id. (quoting Nat’l Rifle Ass’n of Am. v. Vullo, 602 U.S. 175, 187 (2024)). “Jenner has no more right to silence the Executive Branch than the Executive Branch has to silence Jenner.” Id. That is because Section 1 is “government speech.” Id. Despite Jenner’s repeated request to enjoin Section 1 in the abstract, the district court correctly recognized that “[n]either standing doctrine nor equity generally permits such judicial prophylaxis.” JA2207. Thus, “[w]hether best viewed as a shortcoming of standing, ripeness, or” the lack of any basis in equity, “the guesswork entailed in enjoining all future uses of the sentiments expressed in Section 1 would exceed the Court’s proper role.”

The problem is that Vullo actually undercuts their entire argument. The point of the Vullo framework is that when government speech is coupled with government action designed to punish disfavored private expression, the combination can be unconstitutional coercion. The administration wants to unbundle its speech from its sanctions and defend each in isolation—”Section 1 is just government speech.” That’s precisely the move Vullo says you can’t get away with.

Meanwhile, I have to call out that the same people who argued in the Murthy v. Missouri case that any government speech criticizing private companies constituted a de facto First Amendment violation are now arguing “well, this paragraph was just speech, not retaliatory, so leave it alone.”

The brief also contains a line that should make Paul Weiss and others in the capitulation crowd feel especially great about their choices:

In recognition of those problems, many law firms agreed to address their practices and commit to providing pro bono work in the public interest.

The brief then helpfully lists them in a footnote in case anyone forgot which capitulating law firms to shun:

Allen Overy Shearman Sterling, Cadwalader, Kirkland & Ellis, Latham & Watkins, Milbank, Paul Weiss, Simpson Thacher, Skadden, and Wilkie Farr & Gallagher.

The DOJ is literally using the capitulation of those firms as evidence that the executive orders were reasonable and justified. “See? These firms agreed with us!” The firms that folded bought themselves a supporting role in the government’s brief arguing for the constitutionality of retaliating against law firms. Congratulations! Great job lawyering, guys.

Meanwhile, the four firms named in the brief who fought—Perkins Coie, Jenner & Block, WilmerHale, and Susman Godfrey—are named as parties who “instead filed suit.” See? Capitulating is the only proper move to this DOJ. Standing up for your own constitutional rights deserves punishment.

The heart of the filing is that opening framing. “Courts cannot tell the President what to say.” And the response to that is simple: nobody’s trying to. What courts can do—what they’re required to do under the First Amendment—is tell the president he cannot use executive power to punish private parties for their constitutionally protected advocacy. The fact that the DOJ appears unable or unwilling to understand this distinction tells you everything about the strength of their legal position.

As I noted last week, the administration’s decision to initially drop these appeals suggested that even a DOJ willing to argue almost anything looked at these cases and concluded it couldn’t win. The un-dropping and subsequent brief don’t change that calculus. While the DOJ offered no explanation for its reversal, the timing strongly suggests someone higher up didn’t like the press coverage of them folding and decided the political upside of continuing to threaten the legal profession outweighed the legal downside of losing again. Which, if you think about it, proves exactly what the law firms argued from the start: this was always about intimidation, never about law.

The firms that folded will keep being cited in government briefs as proof that the intimidation campaign was justified.

That’s the tax you pay for cowardice: your surrender becomes someone else’s evidence.

Filed Under: 1st amendment, doj, free speech, law firms, vullo

Companies: jenner and block, kirkland & ellis, latham and watkins, milbank, paul weiss, perkins coie, skadden, susman godfrey, wilkie farr, wilmerhale