EFF Stands with Perkins Coie and the Rule of Law

As a legal organization that has fought in court to defend the rights of technology users for almost 35 years, including numerous legal challenges to federal government overreach, Electronic Frontier Foundation unequivocally supports Perkins Coie’s challenge to the Trump administration’s shocking, vindictive, and unconstitutional Executive Order. In punishing the law firm for its zealous advocacy on behalf of its clients, the order offends the First Amendment, the rule of law, and the legal profession broadly in numerous ways. We commend Perkins Coie (and its legal representatives) for fighting back. 

Lawsuits against the federal government are a vital component of the system of checks and balances that undergirds American democracy. They reflect a confidence in both the judiciary to decide such matters fairly and justly, and the executive to abide by the court’s determination. They are a backstop against autocracy and a sustaining feature of American jurisprudence since Marbury v. Madison, 5 U.S. 137 (1803).  

The Executive Order, if enforced, would upend that system and set an appalling precedent: Law firms that represent clients adverse to a given administration can and will be punished for doing their jobs.  

This is a fundamental abuse of executive power. 

The constitutional problems are legion, but here are a few:  

• The First Amendment bars the government from “distorting the legal system by altering the traditional role of attorneys” by controlling what legal arguments lawyers can make. See Legal Services Corp. v. Velasquez, 531 U.S. 533, 544 (2001). “An informed independent judiciary presumes an informed, independent bar.” Id. at 545. 
• The Executive Order is also unconstitutional retaliation for Perkins Coie’s engaging in constitutionally protected speech during the course of representing its clients. See Nieves v. Bartlett, 587 U.S. 391, 398 (2019).  
• And the Executive Order functions as an illegal loyalty oath for the entire legal profession, conditioning access to federal courthouses or client relationships with government contractors on fealty to the executive branch, including forswearing protected speech in opposition to it. That condition is blatantly unlawful:  The government cannot require that those it works with or hires embrace certain political beliefs or promise that they have “not engaged, or will not engage, in protected speech activities such as … criticizing institutions of government.”  See Cole v. Richardson, 405 U.S. 676, 680 (1972). 

Civil liberties advocates such as EFF rely on the rule of law and access to the courts to vindicate their clients’, and the public’s, fundamental rights. From this vantage point, we can see that this Executive Order is nothing less than an attack on the foundational principles of American democracy.  

The Executive Order must be swiftly nullified by the court and uniformly vilified by the entire legal profession.