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Read more Becoming Justice Gorsuch
On Thursday, the U.S. Court of Appeals for the District of Columbia Circuit heard argument in two cases about when the president can target private attorneys. The cases stemmed from President Donald Trump’s executive orders last year singling out specific law firms and lawyers that the president claimed posed a national security risk. But the arguments revealed how Trump’s actions were nothing more than retaliation and censorship for anyone who dares to represent Democrats in court or challenge the administration’s policies. During the oral arguments, the Department of Justice even conceded that its position would allow the government to single out any law firm, nonprofit, or individual in the country—for not just politics but even religion or race. This is plainly unconstitutional, and the D.C. Circuit judges were having none of it.
It’s no secret that candidate Trump came into the office with an eye toward using the government’s power to attack his political enemies. By some counts, he made hundreds of threats against everyone from rival politicians to reporters to judges. But one lesser-covered target of his ire have been the lawyers who have represented those political opponents. In March 2025, the White House released a series of executive orders with ominous and targeted titles, like “Addressing Risks From WilmerHale.” The orders zeroed in on specific law firms that engaged in activity the president claimed was unfair to him. For example, WilmerHale, a large law firm on the East Coast, had hired Bush-nominated FBI director Robert Mueller, whom Trump despises for his work as special counsel investigating Russian interference in the 2016 presidential election. Mueller’s associate Andrew Weissmann went on to a position at a different law firm, Jenner & Block, which also got hit with an executive order.
The orders against these firms imposed similar punishments. They revoked security clearances for their attorneys. Although many people with security clearances are government employees, millions of private citizens also need clearances to work on military matters or to represent criminal defendants charged with crimes that implicate sensitive information. Thus, these firms’ businesses would be seriously affected by a lack of clearance. The orders also reduced access to government buildings, threatened the cancellation of contracts associated with the firms, and triggered the launching of employment discrimination investigations into some of the firms’ diversity, equity, and inclusion programs.
Or at least the orders tried to do all those things. Lawsuits challenging the orders arrived quickly in the D.C. federal district court. And the illegality of these orders was pretty obvious, even by Trump standards. They raised clear First Amendment issues because they amounted to government retaliation over the statements of the firms, due process issues because they ignored the typical process for revoking security clearances, and Sixth Amendment issues because they infringed on the right of Americans to have legal counsel. The administration’s losses stacked up quickly. By June, four separate judges had issued rulings declaring that the respective law firm–targeting orders were illegal.
This all led to Thursday’s arguments, when the government appealed its four lost cases. To give another clue as to the weakness of the government’s case, the law firms had Paul Clement argue on their behalf; Clement is a conservative superlawyer who was solicitor general under George W. Bush, and he regularly pushes and wins on conservative legal issues at the Supreme Court. Clement and the law firms walloped the government. They showed what the court panel already suspected: that the executive orders were unconstitutional government retaliation, plain and simple.
But what was shocking was the breadth of the legal rationale used to justify the orders. The government didn’t even try to defend the reasoning behind the decision to target the firms. Instead, its argument was that challenges to the orders were completely unreviewable. No matter the reason and no matter the context, a denial of a security clearance was completely within the president’s discretion and could not be challenged in court. The court pressed the government on the implications of this theory. What if a president were to say that every Asian person was a threat to the national interest and that therefore they needed their security clearances revoked? Or that anyone of a certain religion should be targeted in the same way? The attorney for the government shrugged and said these questions weren’t for the court to decide, wildly asserting that Congress in such cases could pass a statute regulating security clearances or just impeach the president. The court was not impressed.
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Now, at first glance, you might not care too much about whether a multibillion-dollar law firm has its life made easier or harder. But consider just three consequences that are already happening in the real world as a result of government actions like those challenged Thursday.
First, following Trump’s orders against the four firms, other law firms reached sweetheart deals to provide free legal services on behalf of the federal government, and those firms are currently doing the administration’s bidding. For instance, the massive law firm Paul Weiss agreed to invest over $40 million in pro bono legal services “to support the Administration’s initiatives,” in exchange for the president rescinding an order attacking the firm. About half a dozen other firms reached similar deals to avoid getting targeted. In a legal environment in which more than 1,000 attorneys (including the author of this piece) have left the DOJ, these firms are effectively picking up the slack in a concerning privation of public service.
Second, the wide discretion the government asserts poses ongoing national security risks. If the president’s argument is right, the government could easily revoke the security clearance of every defense contractor who is a person of color, or who is Muslim, or who simply wants to investigate the Pentagon for its abuses of power. Take the Department of Defense’s efforts last year to strip Sen. Mark Kelly of his military title and pension. Secretary of Defense Pete Hegseth has recently questioned his security clearance too. Kelly’s pension case is being litigated, and a panel from the same D.C. Court of Appeals seems likely to rule in his favor. But at a time when international conflicts are a dime a dozen, the notion that a president can flip the on and off switch on what information sitting senators can hold is deeply dangerous.
Third, the legal basis for the government’s arguments here is similar to the one that inspired the Supreme Court’s awful Callais voting rights decision last month. The government in both cases has tried to leverage the political question doctrine, an obscure constitutional test that asserts that some constitutional rights exist but are meant only for the executive and legislature to regulate. As I explained in an article about Texas’ midterm gerrymandering, this is the same doctrine that the court used in Rucho v. Common Cause to rule that political gerrymandering issues are outside the federal court’s review authority. And we see how well that’s working out, as the rise of extreme partisanship continues to threaten democracy. If the government can hide behind the political question doctrine to attack law firms while avoiding judicial oversight, there is little limit to who it can’t target.
It’s for all these reasons that a coalition of nonprofits from across the political spectrum has come together in support of the law firms’ suits. Groups from the ACLU to the Cato Institute signed on to the same brief, in which they made clear just how much of a threat executive orders like these pose to nonprofits and the rule of law. Hopefully the Court of Appeals agrees—otherwise, it will have added yet another tool to the president’s toolbox in the attempt to wield kingly power.
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