Executive Overreach and the Erosion of Constitutional Safeguards
April 5, 2025

LEGAL SPOTLIGHT: Perkins Coie LLP v. U.S. Department of Justice

The case of Perkins Coie LLP v. U.S. Department of Justice warns of the grave consequences that follow when the Executive Branch retaliates against legal advocates for challenging government authority. At stake are foundational principles of the Constitution, including the separation of powers, the right to due process, and the independence of the legal profession.
 
The controversy centers on a March 2025 Executive Order issued by President Trump that targets and penalizes the Perkins Coie law firm for engaging in legal advocacy that is both lawful and constitutionally protected. The Order strips Perkins Coie attorneys of their security clearances, bars them from entering federal buildings, and compels the disclosure of confidential client relationships. These actions go far beyond political posturing—they strike at the independence of the bar and undermine the functioning of the courts, which rely on fearless legal representation to uphold justice.
 
In response, a broad coalition of eleven legal and civil liberties organizations, including The Rutherford Institute, filed an amicus brief in Perkins Coie LLP v. U.S. Department of Justice urging the court to strike down the Executive Order as unconstitutional. The coalition denounced the Administration’s attempts to suppress dissent and chill lawful First Amendment activity, arguing that the Order represents an unprecedented and unlawful encroachment on free speech, advocacy, and due process.
 
The brief warns that the Executive Order violates two bedrock principles of American constitutional law: separation of powers and due process. If such overreach is allowed to stand, it would set a dangerous precedent—one in which legal advocacy can be chilled or punished based solely on the political climate.
 
To underscore what’s at stake, the brief draws on a proud tradition of courageous legal advocacy—from John Adams defending British soldiers after the Boston Massacre, to Constance Baker Motley representing Dr. Martin Luther King Jr. It reminds us that an independent bar is essential to a functioning democracy. But if the Executive Branch can intimidate, penalize, or outright sanction law firms for representing disfavored clients or causes, then the entire legal system is imperiled.
 
Lawyers are not just advocates—they are constitutional actors, indispensable intermediaries between the individual and the state. As the brief powerfully states: “Justice would be poorly served if only the exceedingly brave or the independently wealthy were willing to take such cases.”
 
Without a truly independent bar, the courts cannot function as a check on executive abuse.
 
The Executive Order not only chills legal advocacy by threatening the financial survival of targeted firms; it also compromises the attorney-client relationship itself. By interfering with lawyers’ ability to meet with clients, access federal agencies, and review classified evidence, it undermines both the Sixth Amendment right to counsel and the Fifth Amendment guarantee of due process.
 
If this Executive Order is permitted to stand, it will not only chill advocacy—it will empower the government to silence its critics by force rather than reason. In doing so, it dismantles the foundational safeguards designed to preserve liberty and the rule of law.
 
This is authoritarianism in disguise.

Excerpt from coalition’s amicus brief in Perkins Coie LLP v. U.S. Department of Justice:

II. The Executive Order Violates Separation of Powers and Due Process.

The Executive Order’s retaliatory attack on Perkins Coie for the firm’s constitutionally protected legal advocacy is not only a textbook First Amendment violation; it also threatens to undermine the bar’s independence, violating basic separation-of-powers principles. The Framers conceived of the courts as an “impenetrable xxxxxx against every assumption of power in the Legislative or Executive.” 1 Annals of Cong. 439 (J. Madison) (Joseph Gales ed., 1834). See also Marbury v. Madison, 1 Cranch 137, 177 (1803) (“It is emphatically the province and the duty of the judicial department to say what the law is”). To play its role effectively, the bench depends on the skill and integrity of the bar. In other words, “[a]n informed, independent judiciary presumes an informed, independent bar.” Velasquez, 531 U.S. at 534. Courts cannot guard against the usurpations of the other branches without the assistance of lawyers willing to challenge those usurpations on their clients’ behalf.

The American bar has earned its reputation for independence by standing ready to challenge the government, even in the most controversial and high-profile matters. John Adams famously boasted that his representation of British soldiers in the Boston Massacre prosecution was “one of the best Pieces of Service I ever rendered my Country.” The Diary of John Adams, March 5, 1773.4 Clarence Darrow represented Eugene Debs, then the leader of the American Railway Union, in his conspiracy prosecution for encouraging workers to strike in violation of a federal court injunction. See In re Debs, 158 U.S. 564 (1895). Charles Hamilton Houston represented a Black man convicted of rape by an all-white jury. See Hollins v. Oklahoma, 295 U.S. 394 (1935). The law firm of Arnold, Fortas & Porter took on the cases of government employees accused of Communist sympathies during the Second Red Scare. See Clay Risen, At a Time When Lawyers Feared Defending Government Enemies, One Law Firm Stood Up, Politico (Mar. 26, 2025). James Donovan defended accused Soviet spy Rudolf Abel in the Hollow Nickel case. See Abel v. United States, 362 U.S. 217 (1960).6 Constance Baker Motley defended Rev. Dr. Martin Luther King, Jr. after he was arrested in Birmingham, Alabama. See Constance Baker Motley, Supreme Court Historical Society. Floyd Abrams represented the New York Times in challenging the government’s attempt to suppress the publication of the Pentagon Papers on national security grounds. See N.Y. Times Co. v. United States, 403 U.S. 713 (1971). And Edward Bennett Williams represented Senator Joe McCarthy in censure proceedings before the U.S. Senate. See Albin Krebs, Edward Bennett Williams, 68, Influential Trial Lawyer Dies; A Brilliant ‘Superlawyer,” N.Y. Times (Aug. 14. 1988).

Members of the bar uphold its best traditions when they provide zealous advocacy to clients facing the full weight of the federal government. But justice would be poorly served if only the exceedingly brave or the independently wealthy were willing to take such cases. Particularly in complex, high-stakes cases, clients depend on their lawyers to orchestrate the evidence, precedents, and arguments necessary to make the best submission on their behalf. But many firms would sensibly decline to take any case, no matter how meritorious or significant, that presents even a small risk of ruinous sanctions. 

This is what makes the Executive Order so pernicious to the separation of powers. “By seeking to prohibit the analysis of certain legal issues and to truncate presentation to the courts, the enactment under review prohibits speech and expression upon which courts must depend for the proper exercise of the judicial power.” Velasquez, 531 U.S. at 545. If allowed to stand, the Administration’s retaliatory attack on Perkins Coie will chill many law firms and lawyers from taking on high-profile matters against the government—particularly pro bono matters defending the civil and constitutional rights of ordinary individuals. See Mem. in Supp. of Pl.’s Mot. for TRO Ex. 5 (noting that public interest groups are finding it increasingly difficult to convince firms to undertake such cases). And if the President can destroy even a large, international firm like Perkins Coie with the stroke of pen, the chilling effects on smaller firms and the bar at large will be even more severe. 

Even in cases where lawyers take on a representation adverse to the government, the threat of sanctions will chill them from taking positions or making arguments that offend the Administration. This fundamental conflict of interest will “distort the legal system by altering the traditional role of the attorneys” as zealous advocates for their clients. Velasquez, 531 U.S. at 544. As a result, clients will mistrust their counsel’s loyalty, courts will confront case after case where only one view—the Administration’s—is adequately and zealously represented, and the public will lose faith in the integrity of the judicial process. See id. at 546 (“The courts and the public would come to question the adequacy and fairness of professional representations when the attorney, either consciously to comply with this statute or unconsciously to continue the representation despite the statute, avoided all reference to questions of statutory validity and constitutional authority.”).

The Executive Order also infringes Fifth and Sixth Amendment process rights. In the criminal context, “[t]he right to select counsel of one’s choice . . . has been regarded as the root meaning of the constitutional guarantee” under the Sixth Amendment. See United States v. Gonzalez-Lopez, 548 U.S. 140, 147–48 (2006). This right both requires “a fair or reasonable opportunity to obtain particular counsel,” and bars “arbitrary action prohibiting the effective use of such counsel.” Cheek v. United States, 858 F.2d 1330, 1334 (8th Cir. 1988) (quoting United States ex rel. Carey v. Rundle, 409 F.2d 1210, 1215 (3d Cir. 1969)). And in the civil context, the interest in aid of counsel is a fundamental aspect of due process. See Doe v. District of Columbia, 697 F.2d 1115, 1119 (D.C. Cir. 1983) (“[E]very litigant has a powerful interest in being able to retain and consult freely with an attorney.”). There, too, the government infringes “due process in the constitutional sense” when it “arbitrarily” interferes with the attorney–client relationship. Powell v. Alabama, 287 U.S. 45, 69 (1932).

By obstructing Perkins Coie’s lawyers from entering federal buildings, using federal facilities, and interacting with federal officials—including federal prosecutors, see Burman Decl.  ¶ 26, ECF No. 2-2—the Executive Order arbitrarily prevents the firm from doing much of the work incumbent on counsel, from negotiating with government attorneys to advocacy before regulatory officials. The Executive Order’s disclosure provision requires the firm’s clients to divulge confidential relationships as a condition of receiving government contracts. And its provision stripping the firm’s lawyers of their security clearances prevents those attorneys from discharging their duties in cases involving classified materials, giving the government an unfettered veto over the selection of criminal defense counsel in such cases. If this governmental bullying goes unchecked, the bar will swiftly lose its independence—to the detriment of litigants, courts, and public trust in the judicial process. 

Source: Amicus Brief: Perkins Coie LLP v. U.S. Department of Justice 
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