From the moment that Donald Trump signed an Executive Order (EO 14230) targeting Perkins Coie — one of the first Biglaw firms to be on the receiving end of this type of retaliation but far from the last — legal commentators were pointing out all the ways the EO failed to square with the Constitution. Perkins Coie certainly thought the order was problematic and immediately filed suit, alleging violations of the First, Fifth, and Sixth Amendments.
Judge Beryl Howell was assigned the case and barred the enforcement of key provisions of the EO on the same day as the temporary restraining order hearing. Today, Judge Howell made it official, enjoining the enforcement of any aspect of the EO. And she began her 102-page order (available below) on a poetic note, quoting Shakespeare.
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.” WILLIAM SHAKESPEARE, HENRY VI, PART 2, act 4, sc. 2, l. 75. When Shakespeare’s character, a rebel leader intent on becoming king, see id. l. 74, 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,” id. l. 90, 106. Eliminating lawyers as the guardians of the rule of law removes a major impediment to the path to more power. See Walters v. Nat’l Ass’n of Radiation Survivors, 473 U.S. 305, 371 n.24 (1985) (Stevens, J., dissenting) (explaining the import of the same Shakespearean statement to be “that disposing of lawyers is a step in the direction of a totalitarian form of government”).
It’s a helluva opening graph, and the opinion is being called a “tour de force” as she continues the Shakespearean analogy later: “In a cringe-worthy twist on the theatrical phrase ‘Let’s kill all the lawyers,’ EO 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.”
Howell ruled the “unprecedented” EO violates the First, Fifth, and Sixth Amendments and ordered it “null and void.” In an interesting twist, the judge felt obligated to order the DOJ to “notify all recipients that they are required to comply with this Order, under penalty of contempt.” It’s not standard boilerplate to remind everyone about the concept of contempt. But the reality is, given the history of shenanigans in the case, it’s better to make extra clear that every single government agency must actually follow the judge’s ruling.
Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Mastodon @[email protected].