A federal judge delivered a beatdown to the Trump administration, in support of WilmerHale. Here’s how.
Somewhere, Joseph Welch must be smiling.
The bow-tied Boston lawyer at Hale and Dorr died in 1960 knowing he helped turn the tide against McCarthyism, by standing up to Senator Joseph McCarthy during a nationally televised hearing and berating the politician with the now-famous line “Have you no sense of decency, sir?”
This time, it’s a Washington federal judge’s turn to do the berating, on behalf of Welch’s old firm, now called WilmerHale. The target of the judge’s scorn? The Trump administration.
Welch would be pleased to see the beatdown that Judge Richard Leon delivered against the administration last week — and not just because Leon ruled in favor of Welch’s old firm. Welch would also appreciate the emphatic tone of Leon’s message, with more than 20 exclamation points across a 73-page order.
It’s not just the future of WilmerHale, based in Boston and D.C., and its roughly 2,400 employees that hangs in the balance. The fundamentals of the country’s entire legal system could be at risk.
In recent months, President Trump issued several executive orders threatening prominent law firms because of their work on behalf of immigrants and elections reform, or for hiring a lawyer or two deemed an enemy by the president, among other supposed sins. In WilmerHale’s case, it had the audacity to associate with Robert Mueller, a former FBI director who led a probe into Russian interference with the 2016 presidential election.
Trump’s threats against the various firms have been similar: no more access to federal buildings, security clearances, or working with clients who do business with the government.
Nine Big Law firms quickly caved, settling with Trump and agreeing to provide legal services to causes blessed by the president, worth around $1 billion in total.
Dozens more have stayed quiet, on the sidelines.
But four firms in Trump’s crosshairs chose to fight. And it has not gone well for the president. With Leon’s vigorous torpedoing of Trump’s executive order against WilmerHale on the books, the administration’s record is now 0-3 against Big Law in the courts — with the fate of one more firm to be decided.
Here are a few things to know about Judge Leon. He often wears a bow tie, a sartorial choice much less common now than in Welch’s day. Leon is a Natick native, went to college at Holy Cross in Worcester, and earned his law degree from Suffolk University in Boston. President George W. Bush appointed him to the bench. He has a bit of a reputation for taking on presidential administrations when he believes they’ve overreached, as well as for his plain language, and for using the occasional exclamation point for emphasis.
He did not disappoint, on any of these counts, with his May 27 decision. Right at the outset, Leon explained why he was striking down the entirety of Trump’s WilmerHale order as unconstitutional.
“The
cornerstone of the American system of justice is an independent
judiciary and an independent bar willing to tackle unpopular cases,”
Leon wrote. “Indeed, to rule otherwise would be unfaithful to the
judgment and vision of the Founding Fathers!”
On the administration’s assertion that WilmerHale’s financial injuries are speculative in nature, Leon said: “Please — that dog won’t hunt!" On whether Trump’s order improperly infringes on WilmerHale’s freedom of speech: “The Order goes on to impose a kitchen sink of severe sanctions on WilmerHale for this protected conduct!” And on whether the order violates the rights of WilmerHale clients to pick their counsel: “The intended and actual effect of the Order’s sanctions is to drive away clients from WilmerHale!”
Then there was the tasty footnote on page 14, in which Leon describes Trump’s March 27 executive order against WilmerHale as akin to a gumbo, in which all the ingredients should be considered together as one dish. “As explained in this Memorandum Opinion,” Leon concludes, “this gumbo gives the court heartburn.”
Tell us how you really feel, Judge Leon!
Both sides were far more subdued when asked for comment. After all, Leon’s decision could still be appealed. WilmerHale offered a brief statement, sans exclamation points, saying the decision “strongly affirms our foundational constitutional rights and those of our clients. We remain proud to defend our firm, our people, and our clients.”
Meanwhile, Trump is a fan of exclamation points, judging by his social media posts. But White House spokesman Harrison Fields opted against using one. Instead, he focused on one aspect of the case involving Trump’s attempt to revoke WilmerHale’s security clearances: “The decision to grant any individual access to this nation’s secrets is a sensitive judgment call entrusted to the President. Weighing these factors and implementing such decisions are core executive powers, and reviewing the President’s clearance decisions falls well outside the judiciary’s authority.”
But will law firms feel safe from future Trump attacks, free to take on clients and causes unpopular with the president, or a lawyer with ties to his enemies? Maybe not.
Boston College law professor Cheryl Bratt calls Leon’s decision necessary, but she’s not sure if it’s sufficient. Translation: It will probably take more than one judge’s opinion, or even three, to give law firms the comfort to know they won’t end up on Trump’s hit list. The reluctance is understandable. The harm is real: Some clients were already starting to reconsider WilmerHale, for example, and two of its lawyers had their security clearances suspended.
Bratt incorporated the Trump vs. Big Law saga into her classes this spring; one way to talk about the fundamental rights provided by the Constitution is to show how they can get threatened in real time.
As a WilmerHale alum, Bratt paid particular attention. The legacy of Joseph Welch looms large there; she was told about Welch’s stand against McCarthyism during her employee orientation, and the firm’s website recounts that history with pride. WilmerHale’s current fight, led by outside counsel Paul Clement, holds true to Welch’s legacy, she said, and will help distinguish the firm when law students decide where to apply.
As granddaughter Nancy Welch watches the WilmerHale-Trump fight play out from her Maryland home, she is reminded of a lesson that Welch passed along to her family: He saw the rule of law, delivered fairly and without favor, as the single most powerful antidote to fear. It was a fearful time in the 1950s for the country, she said in an email, like it is right now.
It’s a safe bet Joseph Welch would be proud to read Leon’s decision — and so, one imagines, would the Founding Fathers!