Putting Trump’s threats in writing doesn’t make them law

A judge demolishes Trump’s assault on law firms

U.S. District Judge for the District of Columbia Beryl Howell on Friday wrote an opinion for the ages regarding Donald Trump’s tyrannical attempt to punish the Perkins, Coie law firm. Howell began:

“No American President has ever before issued executive orders like the one at issue in this lawsuit targeting a prominent law firm with adverse actions to be executed by all Executive branch agencies but, in purpose and effect, this action draws from a playbook as old as Shakespeare, who penned the phrase: ‘The first thing we do, let’s kill all the lawyers.’…. When Shakespeare’s character, a rebel leader intent on becoming king … hears this suggestion, he promptly incorporates this tactic as part of his plan to assume power, leading in the same scene to the rebel leader demanding ‘[a]way with him,’ referring to an educated clerk, who ‘can make obligations and write court hand’… Eliminating lawyers as the guardians of the rule of law removes a major impediment to the path to more power.”

In 102 pages, Howell meticulously analyzed Trump’s unconstitutional and tyrannical edict, striking it down in its entirety. (She even invalidated Trump’s revocation of security clearances, which many experts considered a long shot, given the deference usually afforded to presidents on national security.)

“By its terms, this Order stigmatizes and penalizes a particular law firm and its employees—from its partners to its associate attorneys, secretaries, and mailroom attendants—due to the Firm’s representation, both in the past and currently, of clients pursuing claims and taking positions with which the current President disagrees, as well as the Firm’s own speech,” Howell explained. “In a cringe-worthy twist on the theatrical phrase ‘Let’s kill all the lawyers,’ [Executive Order] 14230 takes the approach of ‘Let’s kill the lawyers I don’t like,’ sending the clear message: lawyers must stick to the party line, or else.”

She also castigated law firms that crumbled while praising the firms that have stood up to Trump. “Only when lawyers make the choice to challenge rather than back down when confronted with government action raising non-trivial constitutional issues can a case be brought to court for judicial review of the legal merits, as was done in this case by plaintiff Perkins Coie LLP, plaintiff’s counsel Williams & Connolly, and the lawyers, firms, organizations, and individuals who submitted amicus briefs in this case.”

Howell quashed on First and Fifth Amendment grounds one of the most cynical edicts ever issued by a U.S. president, foiling his scheme “to target lawyers for their representation of clients and avowed progressive employment policies in an overt attempt to suppress and punish certain viewpoints.” (Noteworthy: her ruling was on a summary judgment motion, meaning that the government had no facts that could possibly lead to a decision upholding the order.)

The decision powerfully illustrates how far out of constitutional bounds Trump has ventured, how irresponsible, weak (and silly) the firms were that settled, and how critical the courts are in halting a dangerous bully’s quest for dictatorial powers.

Howell’s handiwork should also underscore that a great many executive edicts are utterly, obviously ineffective. Some are blatantly unconstitutional; others are beyond the powers of any official (e.g., renaming the Gulf of Mexico). Still others are absurd attempts to contradict statutes (e.g., recasting Veterans Day). Reducing Trump’s autocratic fantasies to writing does not necessarily change the law, let alone the Constitution or objective reality.

Trump, for example, again bloviated about pulling Harvard’s tax-exempt status last week, violating the centuries-old principle of academic freedom. The common media framing—“Trump moves to end Harvard’s tax status”—affords Trump far too much credibility. The Washington Post, for example, pronounced: “President Trump on Friday said he would be ‘taking away’ the university’s status, renewing a threat he made last month.” Readers might never know this was a constitutional farce that cannot undo tax law and defies constitutional limits.

Harvard’s President Alan Garber took a stab at analyzing the Constitution in remarks to the Wall Street Journal, providing a smidgen of context. Still, his explanation could have a tad more information, as I indicate in brackets:

If the government goes through with a plan [it’s very possible no one will act on Trump’s blather] to revoke our tax-exempt status, it would…be highly illegal unless there is some reasoning that we have not been exposed to that would justify this dramatic move. Tax exempt status is granted [in statutes that Trump’s diatribe cannot erase] to educational institutions to enable them to successfully carry out their mission of education and (for research universities) of enabling crucial research.

It certainly should not be too much to expect journalists to refuse to afford Trump the patina of legitimacy when he spouts unconstitutional nonsense. Each time Trump coughs up one of these executive furballs, the media should reiterate that his “orders” do not change the Constitution, statues, or reality; and could very well be struck down. He has lost over 75 times, according to legal scholar and The Contrarian contributor Steve Vladeck and Ryan Goodman, editor of Just Security. Vladeck adds that the losses came from 64 different judges in 19 districts spread over 10 circuits. Moreover, news consumers should understand that no president has attempted to govern this way.

Trump’s gusher of executive decrees cannot conceal that he has been spectacularly inept in effectuating many of his objectives, nor can they mask Congress’s fecklessness. It has passed only 5 bills this year, several of which merely express disapproval of regulations.

We have a do-nothing Congress, a president claiming bizarre, unlimited powers to pursue revenge, but—thank goodness—judges across the country who appear determined to protect our constitutional system from Trump’s predations. If it rediscovers its constitutional responsibilities, Congress might tip the balance in favor of the rule of law.