Although we do not opine on the position in the United States as a matter of domestic law, it would be surprising if the legal position in the United States diverged from that set out in the Basic Principles, which were unanimously welcomed by all of the UN’s member States, including the United States… To allow the appeals would appear to risk departing from that well-established position.”
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History shows that suppression of the legal profession is both a symptom and an instrument of democratic decline. And while the destruction of democratic institutions is often swift, reestablishing the rule of law and rebuilding trust in the legal system is a long and fragile process.”
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If allowed to stand, the Orders will have a chilling effect across the legal profession: by targeting major law firms and signaling that others could face similar treatment, the Executive Branch deters attorneys from representing clients who challenge government conduct or advance positions the President disfavors. In doing so, these measures would erode the judiciary’s role as a check on executive power and, in turn, undermine the rule of law.”
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Every other firm in America—big and small, for-profit and nonprofit—will be chilled by the knowledge that selecting the wrong case can bring representation-ruining presidential consequences. And that risk won’t end when this President leaves office. Upholding the orders will leave a tempting loaded weapon on the Resolute Desk for all his successors.”
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President Trump’s retribution campaign began with a single law firm and then quickly spread to others, and then to universities, media organizations, nonprofits, and more… That systematic campaign imperils all institutions that resist lawless executive power and requires our strongest condemnation.”
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This Court must strongly rebuke and permanently enjoin the Administration’s unconstitutional attempt to punish WilmerHale for its protected advocacy and to intimidate other law firms and lawyers from taking on matters adverse to the government.”
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The Order is an abrupt departure from this venerable tradition. Indeed, amici States are not aware of any historical analogue for an executive order that punishes a law firm based on its representation or employment of a political or legal adversary. That is no surprise.”
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The recent executive orders targeting law firms, including the one at issue in this case, are a serious threat to the legal profession. Whatever law firms choose to do in response, these orders interfere with the capacity of lawyers at the targeted firms to fulfill their ethical obligations. In turn, these orders threaten to undermine the adversarial system of justice and the judiciary’s capacity to check unlawful executive actions.”
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Without vigorous advocacy by lawyers independent of the executive, the judiciary is unable to fulfill its constitutional role of checking unlawful action in our system of separated powers. It erodes the strength of our adversarial system and thus diminishes the proper functioning of the judiciary on which the rule of law itself depends.”
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The looming threat posed by the Executive Order at issue in this case and the others like it is not lost on anyone practicing law in this country today: any controversial representation challenging actions of the current administration (or even causes it disfavors) now brings with it the risk of devastating retaliation. Whatever short-term advantage an administration may gain from exercising power in this way, the rule of law cannot long endure in the climate of fear that such actions create.”
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In a different context but in a disturbingly similar vein, the EO targets and punishes law firms because of who they represent and the types of matters they pursue. This direct and unabashed manipulation of the legal profession generally and the lawful services of the private bar more specifically has the same aim as the haunting violence visited upon the civil rights bar and its valiant clients: to deter the legal representation of people and causes which the government disfavors.”
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The President’s Order is a self-declared act of retribution that targets a law firm for representing clients and causes the President disfavors. In inflicting this retribution, the Order contradicts centuries of precedent safeguarding free speech, the right of association, and the right to petition.... Targeting WilmerHale for representing clients and espousing views the President dislikes is viewpoint discrimination, plain and simple.”
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In Amici’s experience, this Order is not only unprecedented, but actually defies the historical precedents on which this Country was founded—precedents which all prior Presidents have sought to honor. To allow the President to use unilateral executive orders to serially punish his domestic political opponents would defy the spirit of the Declaration of Independence, which expressly condemned the King for ‘establishing . . . an Arbitrary government,’ by inter alia,‘taking away our Charters,’ ‘depriving us in many cases, of the benefits of Trial by Jury’ and ‘destroy[ing] the lives of our people.’ U.S. Dec. of Ind. (1776). To permit such an order to stand would likewise undermine the fundamental purposes of the Constitution: to “establish Justice, . . . and secure the Blessings of Liberty.”
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As has become clear in the past month, the Order against WilmerHale is the continuation of a clear trend: The President has targeted several other major law firms, including for their pro bono work on behalf of NGOs like Amici. The Order sets a dangerous precedent that, if permitted to stand, will stifle the President’s critics through unconstitutional threats of retribution and erode the rule of law.”
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It is reckless and indecent to use the aegis of the Oval Office to smear the reputation of respected lawyers and law firms simply to punish them for having had the temerity to represent clients who promote policies that the President personally does not like.”
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Taken as a whole, the Executive Orders create a climate of intimidation where counsel must evaluate whether pursuing any given matter might cause the Administration to bring the full weight of the federal government to bear on counsel for taking a position the Administration deems adverse to its interests.”
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The EOs rely on scattershot grievances about the firms’ decisions to take on clients and causes that the President dislikes; they are devoid of specific factual findings of wrongdoing, and therefore the sanctions they impose cannot be tailored to findings of wrongdoing.”
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[The Executive Order] seeks to punish WilmerHale and its attorneys for having undertaken the very task required of them by the judiciary: zealous representation in adversarial proceedings.”
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Given media’s reliance on pro bono and low-cost counsel, the chilling effects of the Executive Order will be substantial, functionally making it impossible for many press organizations to serve as the public’s proxy and a check on government abuse.”
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Such punishment by presidential fiat seeks to erode lawyers' ethical obligations to their clients and undermine their ability to defend the rule of law. If it coerces even one lawyer into declining to represent even one client, it erodes the bedrock principles at issue in this case.”
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The Executive Order tramples on corporate independence, the right to counsel, and First Amendment rights, transforming independent business and legal judgments into political calculations about presidential favor. The Order threatens not just WilmerHale and its clients, but any corporation or law firm that might someday advocate against this or any future president’s preferred position.”
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A court cannot be confident that the facts and law relevant to a matter have been fully presented if a firm must look over its shoulder in fear of becoming the target of punitive action such as the Order. Firms willing to face such risk embody the highest ideals of the bar, but that is not a risk any lawyer should face.”
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The Sixth Amendment protects the right of the people to retain counsel of choice and to have conflict-free counsel who will not be punished for taking aggressive positions on behalf of their client. It guarantees the right to defend oneself from government accusation without fear of retribution. By contrast, the unprecedented Executive Order undercuts the Sixth Amendment and knocks away the foundational rule-of-law principle that has guided American lawyers from John Adams to John Roberts.”
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The Order does not allege misconduct, fraud, or ethical breaches. It punishes protected legal advocacy—on matters of public significance—through economic coercion, reputational attacks, and access restrictions. This weaponization of executive power is not just a threat to WilmerHale. It is a warning to every lawyer in America: represent the wrong client, and your firm could be next.”
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