Undaunted: Judge Beryl Howell holds the line

She not only reaches the indisputably right results but also educates other lawyers and the public at large about Trump’s authoritarian actions.

Let’s face it: Our democracy is hanging by a thread. President in Name Only Donald Trump has unleashed acting president Elon Musk to usurp the power of the purse. Trump and his minions have opened a war on the First Amendment (attempting to blackball law firms, intimidate members of Congress, and deport a green card holder for the content of his speech). They have chased out or fired conscientious attorneys at the Department of “Justice.” And they have openly displayed the sort of financial corruption and cringeworthy cronyism usually reserved for tin pot dictatorships. However, in federal district courtrooms around the country, judges appointed by presidents of both parties are holding the line, pushing back and warning the public that authoritarianism must not be allowed to stand.

Judge Beryl A. Howell, who recently took senior status on the D.C. district court after seven years as chief judge, has been among the most impressive. In her opinion granting Perkins Coie’s request for a temporary restraining order halting implementation of a vindictive executive order barring the firm’s lawyers from government buildings and prohibiting the federal government from hiring the firm or from using contractors who work with it. “To the extent that this executive order appears to be an instance of President Trump using taxpayer dollars in government resources to pursue what is a wholly personal vendetta, advancing such political payback is not something which the government has a cognizable interest,” she wrote.

She added, “Regardless of whether the president dislikes the firm’s clients, dislikes the litigation positions the law firm takes in vigorous representation of those clients or dislikes the results Perkins Coie achieved for its clients, issuing an executive order targeting the firm based on the president’s dislike of the political positions of the firm’s clients or the firm’s litigation positions is retaliatory and runs head-on into the role of First Amendment protection.” And, adding zing to her ruling, she wrote: “This may be amusing in ‘Alice in Wonderland’ where the Queen of Hearts yells, ‘Off with their heads!’ at annoying subjects and announces a sentence before a verdict. But this cannot be the reality we are living under.”

Howell also commended Williams & Connolly, Perkins’s counsel. “I have enormous respect for Williams & Connolly and enormous respect for them taking this case when not every law firm would.” She left no doubt this was about more than one law firm. “Our justice system is based on the fundamental belief that justice works best when all parties have zealous advocates," she said. "That fundamental promise extends to all parties, even those with unpopular ideas or beliefs or causes disliked by President Trump."

In short, she not only reached the indisputably right result but, in defiant tones, helped educate other lawyers and the public at large about Trump’s authoritarian actions. And it’s not the only time she has taken Trump to the woodshed recently.

On March 6, Howell ordered the government to reinstate Gwynn Wilcox to an independent agency, the National Labor Relations Board (NLRB), to complete her five-year term. Upholding the statute that protects such officials from termination absent “cause,” Howell ruled, “The President does not have the authority to terminate members of the National Labor Relations Board at will, and his attempt to fire plaintiff from her position on the Board was a blatant violation of the law.” She added in a meticulous opinion, “Defendants concede that removal of plaintiff as a Board Member violates the terms of the [NLRA], … and because this statute is a valid exercise of congressional power, the President’s excuse for his illegal act cannot be sustained.”

Howell rejected the notion that Article II gives the president authority to fire anyone he pleases for any reason. “NLRB Board members’ removal protections … consistent with the text and historical understandings of Article II, as well as the Supreme Court’s most recent pronouncements,” she wrote. “That Congress can exert a check on the President by imposing for-cause restrictions on the removal of leaders of multimember boards or commissions is a stalwart principle in our separation of powers jurisprudence.”

I quote at length Howell’s opinions to highlight the clarity, forcefulness and common sense they evidence. Judges have three audiences: the litigants, the appeals courts, and the public. She consistently delivers opinions that address the issue before her but also provide the ironclad rationale to uphold her decisions on appeal. Most important, she speaks to the threat to democracy we face on multiple fronts.

Contrarian contributor and former FBI general counsel Andrew Weissmann tells me, “No one should be surprised by what we are seeing coming from Judge Howell’s chambers. As she has done throughout her career, she continues to be razor sharp, no-nonsense, and fearless in the face of what she determines to be an unconstitutional assault on democracy.”

Recall, Howell also left her imprint on the order dismissing the case against Proud Boys Nicholas Ochs and Nicholas DeCarlo, whom Trump pardoned. She refused to dismiss with prejudice. And she let the election deniers have it:

The prosecutions in this case and others charging defendants for their criminal conduct at the U.S. Capitol on January 6, 2021, present no injustice, but instead reflect the diligent work of conscientious public servants, including prosecutors and law enforcement officials, and dedicated defense attorneys, to defend our democracy and rights and preserve our long tradition of peaceful transfers of power — which, until January 6, 2021, served as a model to the world — all while affording those charged every protection guaranteed by our Constitution and the criminal justice system.

There are many fine federal court judges who have consistently rebuked the Trump regime’s illegal and unconstitutional actions. Constitutional scholar Larry Tribe tells me, “Judge Beryl Howell is the epitome of the judicial profession, combining indisputable fairness and integrity with an unmatched mastery of the law and meticulous attention to the facts and blending them all with a passionate devotion to the constitutional democracy that all judges are sworn to serve but that sadly few uphold with her uncompromising vigor even in the darkest of times.”

But few write with as much verve and force, providing critical context for Americans to understand the democratic crisis we face. She remains a courageous, undaunted defender of our constitutional system, worthy of our recognition and gratitude.

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