Perkins Coie LLP v. U.S. Department of Justice

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

PERKINS COIE LLP,

Plaintiff,

Civil Action No. 25-716 (BAH)

v.

Judge Beryl A. Howell

U.S. DEPARTMENT OF JUSTICE, et al.,

Defendants.

MEMORANDUM OPINION

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”).

The importance of independent lawyers to ensuring the American judicial system’s fair

and impartial administration of justice has been recognized in this country since its founding era.

In 1770, John Adams made the singularly unpopular decision to represent eight British soldiers

charged with murder for their roles in the Boston Massacre and “claimed later to have suffered the

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loss of more than half his practice.” DAVID MCCULLOUGH, JOHN ADAMS 68 (2001). “I had no

hesitation,” he explained, since “Council ought to be the very last thing that an accused Person

should want in a free Country,” and “the Bar ought . . . to be independent and impartial at all Times

And in every Circumstance.” 3 DIARY AND AUTOBIOGRAPHY OF JOHN ADAMS 293 (L.H.

Butterfield et al. eds., 1961). When the Bill of Rights was ratified, these principles were codified

into the Constitution: The Sixth Amendment secured the right, in “all criminal prosecutions,” to

“have the Assistance of Counsel for . . . defence,” U.S. CONST. amend. VI, and the Fifth

Amendment protected “the right to the aid of counsel when desired and provided by the party

asserting the right,” Powell v. Alabama, 287 U.S. 45, 68 (1932). 1 This value placed on the role of

lawyers caught the attention of Alexis de Tocqueville, who in reflecting on his travels throughout

the early United States in 1831 and 1832, insightfully remarked that “the authority . . . intrusted to

members of the legal profession . . . is the most powerful existing security against the excesses of

democracy.” ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 301 (Henry Reeve trans., 2002)

(1835).

The Supreme Court, too, has recognized the importance of lawyers to the functioning of

the American judicial system, since “[a]n informed, independent judiciary presumes an informed,

independent bar.” Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 545 (2001). This is so because

Congress may legislate, the President may implement, and courts may adjudicate, “but only the

lawyers can prepare and submit the great issues of human justice under law in such manner and

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Amici law professors highlight that the right to counsel was included in the Bill of Rights in large part to

avoid “executive control of access to counsel,” which “could distort the administration of justice.” Br. of Amici

Curiae 363 Law Professors in Supp. of Pl.’s Mot. for Summ. J. & for Declaratory & Permanent Injunctive Relief

(“Law Professors’ Br.”) at 11, ECF No. 49; see also id. at 11-15 (reviewing the history of the inclusion of this right

in the Bill of Rights and collecting authorities). The historical backdrop for these provisions, as Justice Black

explained, was in direct response to the “willingness . . . of the courts of England to make ‘short shrift’ of unpopular

and uncooperative groups,” including “lawyers whose greatest crime was to dare to defend unpopular causes.”

Cohen v. Hurley, 366 U.S. 117, 139-40 (1961) (Black, J., dissenting); see also id. at 138-41 (reviewing the history

and protections adopted in response).

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form that courts, in the ultimate, may be effective.” Williams v. Beto, 354 F.2d 698, 706 (5th Cir.

1965). Absent their crucial independence, lawyers would “become nothing more than parrots of

the views of whatever group wields governmental power at the moment.” Cohen v. Hurley, 366

U.S. 117, 138 (1961) (Black, J., dissenting).

The instant case presents an unprecedented attack on these foundational principles. On

March 6, 2025, President Trump issued Executive Order 14230 (“EO 14230”), 90 Fed. Reg. 11781

(Mar. 11, 2025), entitled “Addressing Risks from Perkins Coie LLP.” 2 By its terms, this Order

stigmatizes and penalizes a particular law firm and its employees—from its partners to its associate

attorneys, secretaries, and mailroom attendants—due to the Firm’s representation, both in the past

and currently, of clients pursuing claims and taking positions with which the current President

disagrees, as well as the Firm’s own speech. 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. 3

2

See Pl.’s Mot. for Summ. J. & Declaratory & Permanent Injunctive Relief (“Pl.’s MSJ”), Ex. 4, Declaration

of Christopher N. Manning, Partner, Williams & Connolly (“Manning Decl.”), Ex. 27 (“EO 14230”), ECF No. 39-4

at 127.

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This message has been heard and heeded by some targeted law firms, as reflected in their choice, after

reportedly direct dealings with the current White House, to agree to demand terms, perhaps viewing this choice as

the best alternative for their clients and employees. Yet, some clients may harbor reservations about the

implications of such deals for the vigorous and zealous representation to which they are entitled from ethically

responsible counsel, since at least the publicized deal terms appear only to forestall, rather than eliminate, the threat

of being targeted in an Executive Order. As amici former and current general counsel caution, a “fundamental

premise of the rule of law” is that “when parties challenge the government, their lawyers ‘oppose[] the designated

representatives of the State,’ and ‘[t]he system assumes that adversarial testing will ultimately advance the public

interest in truth and fairness.’ This safeguard against government overreach fails when attorneys cannot ‘advanc[e]

the undivided interests of [their] client[s]’ for fear of reprisal from the government.” Br. of Amici Curiae Former &

Current General Counsel Supporting Pl. Perkins Coie, LLP at 9-10, ECF No. 99 (alterations in original; internal

citation omitted) (quoting Polk County v. Dodson, 454 U.S. 312, 318-19 (1981)).

Only when lawyers make the choice to challenge rather than back down when confronted with government

action raising non-trivial constitutional issues can a case be brought to court for judicial review of the legal merits,

as was done in this case by plaintiff Perkins Coie LLP, plaintiff’s counsel Williams & Connolly, and the lawyers,

firms, organizations, and individuals who submitted amicus briefs in this case. As one amicus aptly put it, “[o]ur

judicial system is under serious threat when determining whether to file an Amicus Curiae brief could be a career

ending decision. But, when lawyers are apprehensive about retribution simply for filing a brief adverse to the

government, there is no other choice but to do so.” Amicus Curiae Br. of Pickering Legal LLC in Supp. of Pl.’s

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Using the powers of the federal government to target lawyers for their representation of

clients and avowed progressive employment policies in an overt attempt to suppress and punish

certain viewpoints, however, is contrary to the Constitution, which requires that the government

respond to dissenting or unpopular speech or ideas with “tolerance, not coercion.” 303 Creative

LLC v. Elenis, 600 U.S. 570, 603 (2023). The Supreme Court has long made clear that “no official,

high or petty, can prescribe what shall be orthodox in politics . . . or other matters of opinion.” W.

Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943). Simply put, government officials

“cannot . . . use the power of the State to punish or suppress disfavored expression.” NRA v. Vullo,

602 U.S. 175, 188 (2024).

That, however, is exactly what is happening here. For this reason, and those explained

more fully below, Executive Order 14230 is unconstitutional, and the findings and instructions to

Executive Branch agencies issued in its Sections 1 through 5 cannot be allowed to stand.

Accordingly, the government’s Renewed Motion to Dismiss and for Expedited Judgment

(“Gov’t’s MTD”), ECF No. 183, which seeks dismissal of the Amended Complaint, ECF No. 176,

pursuant to “Fed. R. Civ. P. 8” and “Rule 12(b) & 56,” Gov’t’s Mem. in Supp. of Mot. to Dismiss

& for Expedited J. (“Gov’t’s Mem.”) at 3, 4, ECF No. 43, is denied. 4 Plaintiff’s Motion for

Request for a Permanent Injunction at 6, ECF No. 93. If the founding history of this country is any guide, those who

stood up in court to vindicate constitutional rights and, by so doing, served to promote the rule of law, will be the

models lauded when this period of American history is written.

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The moniker “defendants” is commonly used to refer to federal government components sued in civil

cases, just as the named government components generally refer to themselves in briefing here. See, e.g., Gov’t’s

Mem. at 4; Gov’t’s Opp’n to Pl.’s MSJ (“Gov’t’s Opp’n”) at 5, ECF No. 143. In contrast, plaintiff refers to the

named defendants in this lawsuit as “the government.” E.g., Pl.’s Mem. of L. in Supp. of Pl.’s MSJ (“Pl.’s Mem.”)

at 12, ECF No. 39-1; Pl.’s Mem. of L. in Opp’n to Gov’t’s MTD (“Pl.’s Opp’n”) at 1, ECF No. 142. Here, the

challenged action is an Executive Order, issued by the President of the United States, that directs compliance by the

entirety of the Executive Branch of the federal government. See, e.g., EO 14230 § 3(b), 90 Fed. Reg. at 11782

(directing action by “[t]he heads of all agencies”). Using “the government” to refer to defendants thus more

accurately encapsulates the circumstances of this case, where the challenge is not merely to the actions of a finite

number of Executive branch components but is to the actions of the Executive branch writ large.

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Summary Judgment and Declaratory and Permanent Injunctive Relief (“Pl.’s MSJ”), ECF No. 182,

is granted.

To aid in review of this Memorandum Opinion, given its length required to address the

multiple issues raised in the parties’ pending dispositive motions, an overview is provided. Part

I reviews the relevant factual and procedural background of this case. Part II provides the legal

standards governing consideration of plaintiff’s motion for summary judgment, under Federal Rule

of Civil Procedure 56, and the government’s motion to dismiss and cross-motion for summary

judgment, under Rules 8, 12(b)(1), 12(b)(6), and 56.

Part III then turns to the substantive issues in dispute, which are discussed in three

sections. Section A considers, and rejects, the following six arguments asserted by the government

in support of dismissal of plaintiff’s claims challenging different parts of EO 14230, namely: (1)

that the statements set out in the Order’s “Purpose” Section 1 are not contested; (2) that these same

statements merely reflect government speech and not actionable findings; (3) that plaintiff’s

challenges to the Order’s “Security Clearance Review” Section 2 are neither justiciable nor ripe;

(4) that plaintiff lacks standing to challenge the Order’s “Contracting” Section 3 due to the failure

to allege holding or performing specific work on any government contract; (5) that plaintiff lacks

standing to challenge the Order’s “Racial Discrimination” Section 4 because the investigation by

the Equal Employment Opportunity Commission (“EEOC”) is not traceable to EO 14230; and (6)

that plaintiff’s challenges to the Order’s “Personnel” Section 5 are not ripe because implementing

guidance has not yet issued.

Section B addresses, in six parts, eight of plaintiff’s nine claims set out in the Amended

Complaint, finding that plaintiff is entitled to summary judgment on the following: (1) the claims

of unconstitutional retaliation and viewpoint discrimination, in violation of the First Amendment,

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in Counts V and VII; (2) the claim of unconstitutional compelled disclosure, in violation of the

First Amendment, in Count VI; (3) the claim of unconstitutional denial of equal protection of the

law, in violation of the Fifth Amendment, in Count IV; (4) the claims that EO 14230 violates the

Fifth and Sixth Amendment right to counsel of plaintiff’s clients, in Counts VIII and IX; (5) the

claim of unconstitutional denial of due process of the law, in violation of the Fifth Amendment, in

Count II; and (6) the claim that EO 14230 is unconstitutionally vague, in violation of the Fifth

Amendment, in Count III. 5

Finally, Section C addresses plaintiff’s satisfaction of the requisite showings for the

remedy sought of a declaratory judgment and permanent injunctive relief.

Part IV provides a brief conclusion summarizing the disposition of the pending motions.

I. BACKGROUND

The relevant factual and procedural background for resolving the two pending motions is

summarized below.

A. Perkins Coie LLP

Plaintiff Perkins Coie LLP (“plaintiff” or “Firm”) is a large international law firm, founded

in 1912, that operates in the United States as a limited liability partnership. Pl.’s MSJ, Ex. 2, Pl.’s

Statement of Material Facts as to Which There is No Genuine Dispute (“Pl.’s SMF”) ¶¶ 1-2, ECF

No. 39-2 (citing Pl.’s MSJ, Ex. 3, Decl. of David J. Burman, Partner, Perkins Coie LLP, in Supp.

of MSJ (“2nd Burman Decl.”) ¶ 1, ECF No. 39-3). 6 The Firm employs approximately 2,500

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Plaintiff additionally claims, in Count I of the Amended Complaint, that Sections 1, 2(b), 3, and 5 of EO

14230 violate the Constitution’s inherent separation of powers through the “Unconstitutional Exercise of Judicial

Authority,” Am. Compl. at 81 (Count I header); see also Pl.’s Mem. at 34 (arguing these provisions of the Order

“invade[] the Judiciary’s authority”). Since resolution of plaintiff’s claims alleging violations of the First, Fifth, and

Sixth Amendments entitles plaintiff to summary judgment and the full relief sought in this case, see generally infra

Parts III.B., C., the separation of powers claim asserted in Count I need not be considered.

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Unless otherwise noted, cited facts submitted by the parties are undisputed. See Pl.’s SMF; Gov’t’s Opp’n,

Ex. 1, Gov’t’s Resp. to Pl.’s SMF (“Gov’t’s Resp. to Pl.’s SMF”), ECF No. 143-1.

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lawyers and business professionals, including roughly 1,200 lawyers, id. ¶¶ 3, 10 (citing 2nd

Burman Decl. ¶¶ 4, 8), and represents clients of all types, including large, medium, and small

businesses, individuals, and other organizations, in federal and state courts around the country and

in different tribunals around the world, id. ¶¶ 5, 7 (citing 2nd Burman Decl. ¶¶ 5-6). The Firm has

consistently been named as one of the 50 largest law firms in the United States, and the Firm and

its attorneys have received regular recognition for excellence from various legal organizations. Id.

¶ 8 (citing 2nd Burman Decl. ¶ 7). Current attorneys and alumni of the Firm come from all sides

of the political spectrum and have worked in the government under administrations of both parties

and reflect both major political party affiliations. Id. ¶¶ 12-14 (citing 2nd Burman Decl. ¶ 9). Most

Perkins Coie attorneys are not politically active. Id. ¶ 12 (citing 2nd Burman Decl. ¶ 9).

At the time EO 14230 was issued, “approximately” 24 Perkins Coie employees held active

security clearances, including “a dozen persons with former military or other public service

backgrounds,” id. ¶ 89 (citing 2nd Burman Decl. ¶ 36) and two who held clearances “in connection

with their duties as military reservists,” id. ¶ 97 (citing 2nd Burman Decl. ¶ 38). Some also received

clearances in connection with legal representations of clients. Id. ¶ 89 (citing 2nd Burman Decl. ¶

36). Four of these individuals were not attorneys. Id. ¶ 98 (citing 2nd Burman Decl. ¶ 38).

As part of their legal practice, Perkins Coie lawyers “necessarily interact with the federal

government on behalf of their clients.” Id. ¶ 24 (citing 2nd Burman Decl. ¶ 19). All nine of the

Firm’s practice groups “intersect with the federal government in some way and include clients

with business before the federal government,” id. ¶ 29 (citing 2nd Burman Decl. ¶ 21); see also id.

¶¶ 36-56 (describing business before the federal government in each practice area); id. ¶¶ 57-59,

62-66 (describing pro bono work involving the government), and a “significant majority of the

firm’s clients have matters that require Perkins Coie lawyers to interact with federal agencies,” id.

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¶ 33 (citing 2nd Burman Decl. ¶ 22). All of Perkins Coie’s top fifteen clients by revenue

(representing collectively “almost a quarter of the firm’s revenue”), and many of the Firm’s other

large clients currently hold contracts or subcontracts with the federal government and compete for

such contracts. Id. ¶ 147 (citing 2nd Burman Decl. ¶ 47). Perkins Coie also represents many of

these companies “for legal matters completely unrelated to” government contracts. Id.

In addition to its legal work, Perkins Coie “has a longstanding and demonstrable

commitment to fostering diversity and inclusion . . . within the firm, the legal profession and its

community.” Id. ¶ 18 (citing 2nd Burman Decl., Ex. 1 at 1, ECF No. 39-3 at 29). The Firm runs a

“Diversity & Inclusion Fellowship program” to which all first-year law students may apply. Id.

¶ 22 (citing 2nd Burman Decl., Ex. 2 at 3, ECF No. 39-3 at 38). In 2019, the Firm also adopted the

“Mansfield Rule,” “which aims to diversify the leadership of large law firms by broadening the

candidate pool for senior management positions.” Gov’t’s Opp’n to Pl.’s MSJ (“Gov’t’s Opp’n”),

Ex. 1, Decl. of Richard Lawson, Deputy Associate Attorney General (“Lawson Decl.”), Ex. 3,

Press Release, Perkins Coie, Perkins Coie Adopts Mansfield Rule to Boost Leadership Diversity

(“Pl.’s 2019 Mansfield Press Release”) (Sept. 6, 2019), ECF No. 143-2 at 100 (page number refers

to ECF header). To do so, the Mansfield Rule requires that participating firms “certify that women,

lawyers of color, LGBTQ+ lawyers and lawyers with disabilities comprise at least 30 percent of

the candidate pool for significant leadership roles, senior lateral openings and promotions.” Id.

B. Perkins Coie’s Representation of Various Clients Cited in EO 14230

In 2016, Marc Elias and other former members of a practice group within Perkins Coie,

called the Political Law group, represented Hillary Clinton “in connection with her presidential

campaign,” against Donald J. Trump. Pl.’s SMF ¶ 75 (citing 2nd Burman Decl. ¶ 60); see also id.

¶ 71 (citing 2nd Burman Decl. ¶ 21). As part of this representation, these former Perkins Coie

attorneys engaged the services of opposition research firm Fusion GPS. Pl.’s SMF ¶ 75 (citing 2nd

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Burman Decl. ¶ 60). Elias left Perkins Coie in 2021, Pl.’s SMF ¶¶ 71, 75 (citing 2nd Burman Decl.

¶¶ 21, 60), and none of the Firm’s attorneys involved in the engagement of Fusion GPS have been

employed by the law firm for at least the past three years, id. ¶ 75; see also id. ¶ 95 (stating that no

Perkins Coie employee who held a security clearance at the time EO 14230 was issued “had any

involvement in the Fusion GPS matter” (citing 2nd Burman Decl. ¶ 41)). Another former Perkins

Coie attorney, Michael Sussmann, who was not part of the Political Law group, had been retained,

due to his cybersecurity experience, by the Clinton campaign after the campaign’s emails were

hacked. Id. ¶ 76. After being indicted in 2021 by a Special Counsel, appointed during the first

Trump Administration, Sussmann was acquitted, on May 31, 2022, of the charge “of lying to the

FBI about links between the Trump Organization and Russia.” Id. (citation omitted). Sussmann

also left Perkins Coie in 2021. Id.

In the 2020 presidential election, Perkins Coie “represented a number of clients opposing

then-candidate Trump’s challenges” to the results of the election. Id. ¶ 77 (citing 2nd Burman Decl.

¶ 33). The firm’s clients “prevailed in all but one of the challenges” brought by President Trump’s

campaign. Id. During that same election cycle, Perkins Coie also represented a number of clients

in voting rights cases, including cases in which the firm’s clients “were successful in defending

existing laws against various legal challenges.” Id. ¶ 78 (citing 2nd Burman Decl. ¶ 33). In general,

Perkins Coie “has represented both party-affiliated and non-partisan clients in litigation over

election laws,” much of which was defending state election procedures and actions taken by state

officials. Id. ¶ 79; see also Gov’t’s Opp’n, Ex. 1, Gov’t’s Resp. to Pl.’s SMF (“Gov’t’s Resp. to

Pl.’s SMF”) at 3, ECF No. 143-1 (noting that Pl.’s SMF ¶ 79 is undisputed). In 2021, three former

Perkins Coie attorneys were sanctioned a total of $8,700 “in connection with a single duplicative

motion to supplement the record in a Fifth Circuit appeal in a voting-rights case.” Pl.’s SMF ¶ 83

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(citing Court Order, Tex. All. for Retired Ams. v. Hughs, No. 20-40643, ECF No. 127-1 (5th Cir.

June 30, 2021)).

Perkins Coie’s representation of President Trump’s political opponent in the 2016

presidential campaign and representation of other clients in connection with election litigation has

drawn President Trump’s attention and ire, as reflected in his public statements and his filing of a

lawsuit against the Firm. Specifically, on March 24, 2022, then-former President Trump filed a

lawsuit against 31 individuals and entities, including Perkins Coie, “alleging that [they]

‘maliciously conspired to weave a false narrative’” that the Trump campaign was colluding with

Russia, including by “falsifying evidence, deceiving law enforcement, and exploiting access to

highly-sensitive data sources,” among other allegations, and seeking over $24 million in damages.

Pl.’s SMF ¶ 80 (quoting Compl., Trump v. Clinton et al., 2:22-cv-14102, ECF No. 1 (S.D. Fla.)

(filed Mar. 24, 2022)). The lawsuit was dismissed with prejudice, less than six months later, on

September 8, 2022, with the court finding that the lawsuit had “no merit.” Id. ¶ 81 (quoting Trump

v. Clinton, 626 F. Supp. 3d 1264, 1284 (S.D. Fla. 2022)). As a result of this lawsuit, President

Trump and one of his attorneys were sanctioned over $900,000 “for, among other things, bringing

a frivolous case ‘in order to dishonestly advance a political narrative.’” Id. ¶ 82 (quoting Order,

Trump v. Clinton et al., 2:22-cv-14102, ECF No. 302 (S.D. Fla. Jan. 19, 2023)). 7

Plaintiff has provided copies of approximately twenty statements made by President Trump

since the 2016 election—the authenticity of which are undisputed by the government—critically

referencing the work of Perkins Coie and its former employees involved in the representation of

his political opponent in the 2016 presidential campaign. See id. ¶¶ 100-18, 124-25, 138; see also

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As of the date of this Memorandum Opinion, an appeal of this sanctions order against President Trump and

his counsel remains pending in the Eleventh Circuit. Trump et al. v. Clinton et al., No. 23-10387 (11th Cir.) (appeal

docketed Feb. 6, 2023).

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Pl.’s MSJ, Ex. 4, Declaration of Christopher N. Manning, Partner, Williams & Connolly

(“Manning Decl.”), Exs. 2-22, ECF No. 39-4. For instance, on October 19, 2017, Trump tweeted,

“Workers of firm involved with the discredited and Fake Dossier take the 5th. Who paid for it,

Russia, the FBI, or the Dems (or all)?” Manning Decl., Ex. 2, ECF No. 39-4 at 14. In two tweets

posted on August 6, 2018, Trump stated:

“Collusion with Russia was very real. Hillary Clinton and her team 100%

colluded with the Russians, and so did Adam Schiff who is on tape trying

to collude with what he thought was Russians to obtain compromising

material on DJT. We also know that Hillary Clinton paid through . . . a law

firm, eventually Kremlin connected sources, to gather info on Donald

Trump. Collusion is very real with Russia, but only with Hillary Clinton

and the Democrats, and we should demand a full investigation.” Dan

Bongino on @foxandfriends Looking forward to the new IG Report!

Id., Ex. 3 (“August 6, 2018, Trump Tweets”), ECF No. 39-4 at 16 (ellipsis in original, denoting

break between two tweets). The demand for a “full investigation” could be read to cover plaintiff,

among others.

President Trump’s statements and social media posts critical of Perkins Coie and its former

lawyers, including Elias and Sussmann, continued in 2018. For instance, on November 9, 2018,

Trump, speaking about an ongoing recount in a U.S. Senate election in Florida, told reporters:

[A]ll of a sudden, they’re finding votes out of nowhere. And Rick Scott,

who won by – you know, it was close, but he won by a comfortable margin

– every couple of hours it goes down a little bit. And then you see the

people, and they were involved with that fraud of the fake dossier, the phony

dossier. And I guess I hear they were somehow involved or worked with

the GPS Fusion people, who have committed – I mean, if you look at what

they’ve done, you look at the dishonesty.

Id., Ex. 4, Remarks by President Trump Before Marine One Departure (“November 9, 2018, Trump

Remarks”) at 5, ECF No. 39-4 at 19. 8 The same day, he tweeted: “As soon as Democrats sent their

8

For relevant context, Elias represented Democrat Bill Nelson, Florida’s then-sitting U.S. Senator, in the

recount against Republican candidate Rick Scott. See, e.g., Kenneth P. Vogel & Patricia Mazzei, In Florida

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best Election stealing lawyer, Marc Elias, to Broward County they miraculously started finding

Democrat votes. Don’t worry, Florida – I am sending much better lawyers to expose the FRAUD!”

Id., Ex. 5 (“November 9, 2018, Trump Tweet”), ECF No. 39-4 at 34.

Four years later, on May 31, 2022, Trump posted on Truth Social about Perkins Coie’s

former employee, Sussmann, stating:

Our Legal System is CORRUPT, our Judges (and Justices!) are highly

partisan, compromised or just plain scared, our Borders are OPEN, our

Elections are Rigged, Inflation is RAMPANT, gas prices and food costs are

“through the roof,” our Military “Leadership” is Woke, our Country is going

to HELL, and Michael Sussmann is not guilty. How’s everything else

doing? Enjoy your day!!!

Id., Ex. 10, ECF No. 39-4 at 56. On December 11, 2022, Trump posted on Truth Social an article

titled “Elon Musk Calls Out Sussmann, Perkins Coie for ‘Attempt to Corrupt a Presidential

Election.’” Id., Ex. 12 (“December 11, 2022, Trump Post”), ECF No. 39-4 at 60. On March 31,

2024, Trump posted another article on Truth Social, this one titled “Marc Elias Is Scared…And

He Should Be.” Id., Ex. 16 (“March 31, 2024, Trump Post”), ECF No. 39-4 at 69.

Other posts have focused more generally on Perkins Coie. On September 6, 2023, then-

candidate Trump posted on Truth Social: “They spied on my Campaign, Impeached me twice, had

the Russia, Russia Hoax, the Fake Dossier Hoax, FISA Fraud, Election Fraud, the ‘No Collusion’

Mueller Hoax, and so much more. I was innocent on all counts. If I am elected, they will be

brought to JUSTICE, something that Republicans have always been afraid to do.” Id., Ex. 53

(“September 6, 2023, Trump Post”), ECF No. 39-4 at 602. The reference to the “Fake Dossier

Hoax” in this litany of perceived wrong-doing alludes to plaintiff’s work representing President

Trump’s 2016 political opponent and thus obliquely identifies plaintiff as one of the targets to be

Recount Fight, Democratic Lawyer Draws Plaudits and Fire, N.Y. Times (Nov. 14, 2018),

https://www.nytimes.com/2018/11/14/us/politics/florida-governor-recount.html.

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“brought to JUSTICE” upon President Trump’s election to his current office. 9 This promise of

retribution was repeated publicly by President Trump. For instance, in a March 4, 2023, speech,

then-candidate Trump said, “I am your warrior, I am your justice, and for those who have been

wronged and betrayed, I am your retribution. I am your retribution.” Id., Ex. 14 at 29:53-30:04,

ECF No. 39-4 at 64.

Plaintiff and its former employees’ work representing President Trump’s prior political

opponent were ongoing targets throughout 2024 for criticism and his promises of retribution. On

May 5, 2024, Trump posted on Truth Social:

Andrew McCarthy: “HILLARY CLINTON, RECIDIVIST ELECTION-

THEFT CONSPIRATOR…Regarding 1992, the Clinton campaign used a

law firm as the intermediary for tens of thousands of dollars in payments to

a private investigator (Jack Palladino) whose task was to obtain the silence

of women who claimed to have had affairs with Bill Clinton…it turns out

that this 1992 tactic – booking as legal fees what might euphemistically be

called ‘research’ – was the blueprint for the 2016 Hillary Clinton campaign,

in cahoots with the Democratic National Committee. They paid their law

firm, Perkins Coie, which retained the research firm Fusion GPS and its

contractor, former British spy Christopher Steele, to generate the farcical

Steele dossier that was shared with the FBI, the State Department, and the

media to smear Trump as a clandestine agent of the Kremlin…

Id., Ex. 18, ECF No. 39-4 at 73. On September 7, 2024, and again on September 17, 2024, and

October 25, 2024, in the lead-up to the 2024 presidential election, Trump posted on Truth Social

his intent, if elected, to investigate and prosecute “Lawyers” and others he perceived to be helping

political opponents and “involved” in what he perceived to be “unscrupulous behavior”:

CEASE & DESIST: I, together with many Attorneys and Legal Scholars,

am watching the Sanctity of the 2024 Presidential Election very closely

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President Trump’s statements about plaintiff have persisted even up to April 23, 2025, the day of the

motions hearing on the parties’ pending cross-motions in this case, when he posted on Truth Social, among other

things, that “I’m suing the law firm of Perkins Coie for their egregious and unlawful acts, in particular the conduct

of a specific member of this firm.” @RealDonaldTrump, Truth Social (Apr. 23, 2025, 9:35 AM),

https://truthsocial.com/@realDonaldTrump/posts/114387538306195784; see also Trump Says He is Suing Perkins

Coie Law Firm, Reuters (Apr. 23, 2025, 9:59 AM), https://www.reuters.com/legal/trump-says-he-is-suing-perkins-

coie-law-firm-2025-04-23/. Though President Trump incorrectly describes his role in this litigation as the party

bringing the lawsuit, this slip accurately reflects his intent to target plaintiff based on his negative view of the Firm.

13

because I know, better than most, the rampant Cheating and Skullduggery

that has taken place by the Democrats in the 2020 Presidential Election. It

was a Disgrace to our Nation! Therefore, the 2024 Election, where Votes

have just started being cast, will be under the closest professional scrutiny

and, WHEN I WIN, those people that CHEATED will be prosecuted to the

fullest extent of the Law, which will include long term prison sentences so

that this Depravity of Justice does not happen again. We cannot let our

Country further devolve into a Third World Nation, AND WE WON'T!

Please beware that this legal exposure extends to Lawyers, Political

Operatives, Donors, Illegal Voters, & Corrupt Election Officials. Those

involved in unscrupulous behavior will be sought out, caught, and

prosecuted at levels, unfortunately, never seen before in our Country.

Id., Exs. 20-22 (“Trump Cease & Desist Post”), ECF No. 39-4 at 77, 79, 81.

C. Perkins Coie’s Representation of Clients in Litigation Challenging Current

Trump Administration Action

On February 6, 2025, Perkins Coie, representing a group of transgender military

servicemembers pro bono, filed a lawsuit, Shilling v. Trump, No. 2:25-cv-241 (W.D. Wash.),

challenging Executive Order 14183, which banned transgender people from serving in the

American military. Pl.’s SMF ¶¶ 84-85 (citation omitted). 10 The court entered a preliminary

injunction, on March 27, 2025, enjoining enforcement of this Executive Order nationwide. See

Shilling v. United States, --- F. Supp. 3d ---, 2025 WL 926866, at *3 (W.D. Wash. Mar. 27, 2025). 11

No Perkins Coie employee who held an active security clearance at the time EO 14230 was issued

was involved in this case. Pl.’s SMF ¶ 96 (citing 2nd Burman Decl. ¶ 41).

10

Plaintiff’s SMF identifies the challenged Executive Order as “14185,” Pl.’s SMF ¶ 84, but the complaint in

Shilling challenges Executive Order 14183, Compl. ¶ 1, Shilling v. Trump et al., No. 2:25-cv-241 (W.D. Wash.)

(filed Feb. 6, 2025); see also Shilling v. United States, --- F. Supp. 3d ---, 2025 WL 926866, at *1 (W.D. Wash. Mar.

27, 2025) (noting that the lawsuit challenged Executive Order 14183).

11

The same Executive Order was challenged in another lawsuit, filed in this District, in which another Judge

on this Court also granted a preliminary injunction. See Talbott v. United States, --- F. Supp. 3d ---, 2025 WL

842332, at *1, 3 (D.D.C. Mar. 18, 2025) (enjoining enforcement of Executive Order 14183). Perkins Coie was not

involved in that litigation. Pl.’s SMF ¶ 87.

14

D. Executive Order 14230

On March 6, 2025, President Trump issued EO 14230, entitled “Addressing Risks from

Perkins Coie LLP.” 90 Fed. Reg. at 11781. In a televised signing ceremony, President Trump

made clear his reasons for the Executive Order, stating about Perkins Coie: “This is an absolute

honor to sign. What they’ve done is, it’s just terrible. It’s weaponization, you could say,

weaponization against a political opponent, and it should never be allowed to happen again.”

Manning Decl., Ex. 29, CSPAN Video of President Trump Signing Executive Orders at 5:27-40,

ECF No. 39-4 at 133. On the same day, the White House released an accompanying fact sheet

further explaining EO 14230 and the rationale for its issuance. Id., Ex. 28, Fact Sheet: President

Donald J. Trump Addresses Risks from Perkins Coie LLP, The White House (Mar. 6, 2025), ECF

No. 39-4 at 131 [hereinafter EO 14230 Fact Sheet], also available online at

https://www.whitehouse.gov/fact-sheets/2025/03/fact-sheet-president-donald-j-trump-adresses-

risks-from-perkins-coie-llp/.

EO 14230 has six sections, five of which are challenged in this litigation. See Gov’t’s

Mem. at 1 (describing the Order as consisting of Section 1 and “the operative sections . . . 2, 3, 4,

and 5”); Pl.’s SMF ¶¶ 127-31 (describing Sections 1 through 5 of the EO). Section 1, titled

“Purpose,” makes a number of purported derogatory factual findings about plaintiff’s conduct,

using such words as, in the first sentence, “dishonest and dangerous activity”; in the third sentence,

“egregious activity”; in the fourth sentence, “unethical lack of candor”; in the fifth sentence,

accusing the Firm of “racially discriminat[ing] against its own attorneys and staff, and against

applicants,” which, in the tenth and last sentence, shows “disrespect for the bedrock principle of

equality.” Based on these findings, the last sentence of Section 1 states they “represent[] good

cause to conclude that they neither have access to our Nation’s secrets nor be deemed responsible

stewards of any Federal funds,” as directed in the instructions to all Executive branch agencies that

15

follow in the next sections of the Order. EO 14230 § 1, 90 Fed. Reg. at 11781. The government

confirms that these are a presidential “finding” and that “everything else in the executive order

that is being challenged, Sections 3 and . . . 5, fundamentally flow from that determination.” Tr.

of Mar. 12, 2025, Hr’g (“TRO Hr’g Tr.”) at 35:9-12, ECF No. 22; see also Tr. of Apr. 23, 2025,

Mots. Hearing (“Mots. Hr’g Tr.”) at 38:18-19, ECF No. 169 (government counsel confirming that

Section 1 “would inform any agency that’s reviewing a security clearance,” as directed in Section

2).

Section 2, titled “Security Clearance Review,” consists of two parts. The first subsection

orders the immediate suspension of any active security clearances held by any Perkins Coie

employee “pending a review of whether such clearances are consistent with the national interest.”

EO 14230 § 2(a), 90 Fed. Reg. at 11781. 12 This subsection, by its terms, covers all Perkins Coie

employees, regardless of their role at the firm or the reasons for which they hold a clearance. Mots.

Hr’g Tr. at 24:13-14 (government counsel confirming “we would interpret it[] as being that

broad”).

The second subsection of Section 2 orders the Office of Management and Budget (“OMB”)

to “identify all Government goods, property, material, and services” currently provided “for the

benefit of Perkins Coie,” and then directs the heads of agencies to “expeditiously cease” such

provision. EO 14230 § 2(b), 90 Fed. Reg. at 11781. 13 The government has offered scope-limiting

12

EO 14230 § 2(a) states in full: “The Attorney General, the Director of National Intelligence, and all other

relevant heads of executive departments and agencies (agencies) shall immediately take steps consistent with

applicable law to suspend any active security clearances held by individuals at Perkins Coie, pending a review of

whether such clearances are consistent with the national interest.” EO 14230 § 2(a), 90 Fed. Reg. at 11781.

13

EO 14230 § 2(b) states in full: “The Office of Management and Budget shall identify all Government

goods, property, material, and services, including Sensitive Compartmented Information Facilities, provided for the

benefit of Perkins Coie. The heads of all agencies providing such material or services shall, to the extent permitted

by law, expeditiously cease such provision.” EO 14230 § 2(b), 90 Fed. Reg. at 11781.

16

gloss on this subsection, pointing to both the instruction’s placement in Section 2 of the Order and

the textual phrase “for the benefit of Perkins Coie.” In particular, the government suggests that,

given the topic addressed in this subsection, the instructions contained therein should be construed

as limited to goods, property, material, and services with “some general nexus to some national

security issue,” Mots. Hr’g Tr. at 52:9-12; see also id. at 48:9-53:1, and, given the textual reference

to plaintiff’s benefit, further limited to exclude the “types of goods and services . . . provided to

the public more generally,” Gov’t’s Opp’n at 11. Whatever the merits of the government’s post

hoc interpretive limitations on the scope of subsection (b), however, these limitations did not

appear in OMB’s implementation directions for this subsection. OMB’s March 7, 2025,

Memorandum, sent to the heads of all executive departments and agencies, contained no text

limiting the scope of this subsection to “Government goods, property, material, and services” that

were national security-related or not otherwise provided to the public generally. Mots. Hr’g Tr. at

50:25-53:1; Manning Decl., Ex. 31, M-25-17, Memorandum from OMB Director Vought to

Executive Department and Agency Heads Re: Implementation of the Executive Order on

“Addressing Risks from Perkins Coie LLP” (“OMB Implementation Mem.”), ECF No. 39-4 at

140.

Section 3 is titled “Contracting,” and has two subsections. EO 14230 § 3, 90 Fed. Reg. at

11781-82. The first subsection directs all “Government contracting agencies” to require

government contractors to “disclose any business they do with Perkins Coie and whether that

business is related to the subject of the Government contract.” Id. § 3(a), 90 Fed. Reg. at 11781. 14

14

EO 14230 § 3(a) states in full: “To prevent the transfer of taxpayer dollars to Federal contractors whose

earnings subsidize, among other things, racial discrimination, falsified documents designed to weaponize the

Government against candidates for office, and anti-democratic election changes that invite fraud and distrust,

Government contracting agencies shall, to the extent permissible by law, require Government contractors to disclose

any business they do with Perkins Coie and whether that business is related to the subject of the Government

contract.” EO 14230 § 3(a), 90 Fed. Reg. at 11781.

17

The next subsection provides instructions on what each agency must do with those government

contractor disclosures. Specifically, all agency “heads” are directed to review all government

contracts with either Perkins Coie or any entity that disclosed a business relationship with Perkins

Coie. Id. § 3(b), 90 Fed. Reg. at 11782. 15 Pursuant to this review, agencies are directed to

“terminate any contract . . . for which Perkins Coie has been hired to perform any service,” id.

§ 3(b)(i); see also EO 14230 Fact Sheet (“[T]he Federal Government will prohibit funding

contractors that use Perkins Coie LLP.”), and “otherwise align” funding decisions with the

administration’s priorities, EO 14230 § 3(b)(ii), 90 Fed. Reg. at 11782; see also TRO Hr’g Tr. at

16:11-14 (plaintiff’s counsel reading Section 3 as “essentially say[ing] to these contractors” that,

“[i]f you want to have government contracts, you cannot use this law firm”). To monitor progress

on implementation of Section 3, all agencies are instructed to submit to OMB their assessment of

any contracts with Perkins Coie or contractors doing business with Perkins Coie and “any actions

taken with respect to those contracts in accordance with this order.” EO 14230 § 3(b)(ii), 90 Fed.

Reg. at 11782.

Section 4, titled “Racial Discrimination,” has two subsections. EO 14230 § 4, 90 Fed.

Reg. at 11782. The first subsection directs the Chair of the Equal Employment Opportunity

Commission (“EEOC”) to “review the practices of representative large, influential, or industry

15

EO 14230 § 3(b) states in pertinent part: “The heads of all agencies shall review all contracts with Perkins

Coie or with entities that disclose doing business with Perkins Coie under subsection (a) of this section. To the

extent permitted by law, the heads of agencies shall: . . . (i) take appropriate steps to terminate any contract, to the

maximum extent permitted by applicable law, including the Federal Acquisition Regulation, for which Perkins Coie

has been hired to perform any service; [and] (ii) otherwise align their agency funding decisions with the interests of

the citizens of the United States; with the goals and priorities of my Administration as expressed in executive

actions, especially Executive Order 14147 of January 20, 2025 (Ending the Weaponization of the Federal

Government); and as heads of agencies deem appropriate. Within 30 days of the date of this order, all agencies shall

submit to the Director of the Office of Management and Budget an assessment of contracts with Perkins Coie or

with entities that do business with Perkins Coie effective as of the date of this order and any actions taken with

respect to those contracts in accordance with this order.” EO 14230 § 3(b), 90 Fed. Reg. at 11782.

18

leading law firms” to ensure compliance with employment laws, including specifically whether

such firms “reserve certain positions, such as summer associate spots, for individuals of preferred

races; promote individuals on a discriminatory basis; permit client access on a discriminatory

basis; or provide access to events, trainings, or travel on a discriminatory basis.” Id. § 4(a); 16 see

also Mots. Hr’g Tr. at 58:6-59:19 (government counsel explaining that the Trump Administration

considered appropriate subjects of investigation, law firms sending “certain racial, ethnic, and

gender-based delegations to meet with clients,” to the exclusion of members of other groups, and

“at very large venues, training conferences, professional associations where speakers are excluded

on the basis of race and sex in order to have a certain composition on the panel”).

The second subsection directs the Attorney General to investigate, “in coordination with

the Chair of the Equal Employment Opportunity Commission and in consultation with State

Attorneys General as appropriate,” any such law firms that do business with the federal

government to determine their compliance with “race-based and sex-based non-discrimination

laws” and take any appropriate actions based on those investigations. EO 14230 § 4(b), 90 Fed.

Reg. at 11782. 17 These Attorney General-led federal investigations could evaluate both federal

and state discrimination laws, though government counsel suggested that consultation with state

16

EO 14230 § 4(a) states in full: “The Chair of the Equal Employment Opportunity Commission shall review

the practices of representative large, influential, or industry leading law firms for consistency with Title VII of the

Civil Rights Act of 1964, including whether large law firms: reserve certain positions, such as summer associate

spots, for individuals of preferred races; promote individuals on a discriminatory basis; permit client access on a

discriminatory basis; or provide access to events, trainings, or travel on a discriminatory basis.” EO14230 § 4(a), 90

Fed. Reg. at 11782.

17

EO 14230 § 4(b) states in full: “The Attorney General, in coordination with the Chair of the Equal

Employment Opportunity Commission and in consultation with State Attorneys General as appropriate, shall

investigate the practices of large law firms as described in subsection (a) of this section who do business with

Federal entities for compliance with race-based and sex-based non-discrimination laws and take any additional

actions the Attorney General deems appropriate in light of the evidence uncovered.” EO14230 § 4(b), 90 Fed. Reg.

at 11782.

19

Attorneys General would most likely occur to investigate violations of state civil rights laws

“pattern[ed]” closely after federal laws. Mots.’ Hr’g Tr. at 60:6-10; see also id. at 59:20-60:17.

Section 5, titled “Personnel,” has two subsections. EO 14230 § 5, 90 Fed. Reg. at 11782.

The first subsection instructs all agency “heads” to “provide guidance” on two action items: (1)

“limiting official access from Federal Government buildings to employees of Perkins Coie” when

“such access would threaten the national security” or “be inconsistent with the interests of the

United States,” and (2) “limiting Government employees acting in their official capacity from

engaging with Perkins Coie employees to ensure consistency with the national security and other

interests of the United States,” id. § 5(a). 18 Government counsel resisted reading these limitations

“as going, necessarily, as far as” disallowing the Firm’s employees from “even talk[ing] to or

speak[ing] with individuals,” and implied this was not such a big deal because, during COVID,

“nobody was entering federal buildings; nobody was meeting; all access and all communications

were handled via letter, email, phone calls.” TRO Hr’g Tr. at 55:15-22. Given the breadth of the

term “engaging” used in Section 5 (a), however, he could not confirm that any one of these forms

of communication with government officials would be permitted, since that is a decision left to the

discretion of each agency head. Id. at 56:18-21, 57:15-18. To the extent that references to

“national security” and “national interest” guide the exercise of agency heads’ discretion, plaintiff

pointed out that “these agencies are already told what the outcome of their analysis is, because

they have been told in Section 1 that working with Perkins Coie is not consistent with the national

interest and not consistent with the administration and policies of this administration,” TRO Hr’g

18

EO 14230 § 5(a) states in full: “The heads of all agencies shall, to the extent permitted by law, provide

guidance limiting official access from Federal Government buildings to employees of Perkins Coie when such

access would threaten the national security of or otherwise be inconsistent with the interests of the United States. In

addition, the heads of all agencies shall provide guidance limiting Government employees acting in their official

capacity from engaging with Perkins Coie employees to ensure consistency with the national security and other

interests of the United States.” EO 14230 § 5(a), 90 Fed. Reg. at 11782.

20

Tr. at 18:16-20, a fairly obvious point to which the government offered no response, see generally

Gov’t’s Mem.; Gov’t’s Opp’n; Gov’t’s Reply to Pl.’s Opp’n to the MTD (“Gov’t’s Reply”), ECF

No. 147, other than to concede that the findings in Section 1 “would inform” these determinations

“[w]here relevant,” Mots. Hr’g Tr. at 38:18-19, 23.

The second subsection forbids all federal agencies from hiring any employees of Perkins

Coie without a waiver obtained from the relevant agency’s head, “in consultation with the Director

of the Office of Personnel Management.” Id. § 5(b); 19 see also EO 14230 Fact Sheet (“Federal

Agencies will also refrain from hiring Perkins Coie LLP employees unless specifically

authorized.”). This broad text applies the federal hiring prohibition to all Perkins Coie employees,

including, as plaintiff posits without dispute from the government, to “the people in the mail room,

the IT director, and secretaries.” TRO Hr’g Tr. at 22:25-23-1.

Finally, Section 6 provides “General Provisions” addressing the legal impact of the

Executive Order on other applicable federal agency laws, regulations and authorities and instructs

that “[t]his order shall be implemented consistent with applicable law.” EO 14230 § 6(b), 90 Fed.

Reg. at 11782. This instruction, by its express terms, bars implementation by any federal agency

of any section of the Executive Order found to be unconstitutional and thereby not “consistent with

applicable law.” Government counsel confirmed that the phrase “applicable law” would

“necessarily incorporate an order from this Court,” Mots’ Hr’g Tr. at 16:9-13, and thus, should

any permanent injunction be entered against EO 14230, no “executive agency would be able to

move forward with trying to implement it,” id. at 15:11-18.

19

EO 14230 § 5(b) states in full: “Agency officials shall, to the extent permitted by law, refrain from hiring

employees of Perkins Coie, absent a waiver from the head of the agency, made in consultation with the Director of

the Office of Personnel Management, that such hire will not threaten the national security of the United States.” EO

14230 § 5(b), 90 Fed. Reg. at 11782.

21

E. Immediate Impact of EO 14230

Federal agencies began implementing EO 14230 immediately following its issuance. Pl.’s

SMF ¶ 135; Gov’t’s Resp. to Pl.’s SMF at 3 (conceding that “certain agencies” began immediately

to implement the EO); see also Pl.’s SMF ¶ 137 (describing the initial steps taken by OMB to

implement EO 14230); id. ¶ 140-43 (describing immediate steps taken by the EEOC). On March

7, 2025, the day after issuance of EO 14230, OMB Director Russell Vought sent a

“MEMORANDUM TO THE HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES”

about the Order’s implementation. OMB Implementation Mem. (capitalization in original). The

memorandum directed that, “[i]n accordance with the direction provided by the President” in EO

14230, “[a]gencies must review all Government contracts and subcontracts with Perkins and Coie

LLP, as well as provision to Perkins and Coie LLP of goods, property, material, and services,

including any Sensitive Compartmented Information Facilities,” which review should be

completed, and results reported back to OMB, by April 5, 2025. Id.

That same day, a federal official refused to allow Perkins Coie attorneys to attend a

scheduled meeting to discuss a pending matter before that agency. Pl.’s SMF ¶ 152 (citing 2nd

Burman Decl. ¶ 44). In another pending case, an attorney in the Department of Justice’s Criminal

Fraud Section cancelled a previously scheduled meeting with Perkins Coie attorneys, citing the

Order. Id. ¶ 162 (citing 2nd Burman Decl. ¶ 45). Then, on March 17, 2025, Perkins Coie received

an 11-page letter from the Acting EEOC Chair expressing “concern,” based on “public statements

and court filings,” that the Firm’s hiring practices “may entail unlawful disparate treatment . . . or

unlawful limiting, segregating, and classifying based . . . on race, sex, or other protected

characteristics, in violation of Title VII,” and requesting extensive information, dating back in

some instances for a decade, from the Firm about its hiring and promotion practices. Manning

Decl., Ex. 34, Letter from Acting EEOC Chair Lucas Re: Review of Perkins Coie LLP’s

22

Compliance with Title VII of the Civil Rights Act of 1964 (“EEOC Letter”) at 1-3, ECF No. 39-4

at 146.

Perkins Coie felt the impact of EO 14230 immediately not only from federal agencies but

also from its clients. On the same day the Order was issued, one client, who had retained Perkins

Coie for seven years and was represented by the Firm in seven open matters, “ended Perkins Coie’s

representation of that client in any litigation before the relevant federal agency.” Id. ¶ 151 (citing

2nd Burman Decl. ¶ 48). Another client, for whom Perkins Coie had performed substantial work

totaling over $1 million in fees, hired another law firm when Perkins Coie lawyers were told they

could not attend a meeting to discuss the matter (discussed above). Id. ¶ 152 (citing 2nd Burman

Decl. ¶ 44). On March 7, 2025, a major government contractor that Perkins Coie had represented

for 35 years hired other counsel for two pending matters. Id. ¶ 153 (citing 2nd Burman Decl. ¶ 48).

That same day, another client of Perkins Coie since 2018 withdrew all work from the Firm, id.

¶ 154 (citing 2nd Burman Decl. ¶ 48), as did a coalition of four other clients, id. ¶ 155 (citing 2nd

Burman Decl. ¶ 48). These terminations of existing representations, each of which took place in

the days immediately following the issuance of EO 14230, resulted in “significant” revenue loss

for Perkins Coie. 20

F. Procedural History

Plaintiff filed the instant lawsuit on March 11, 2025, five days after President Trump issued

EO 14230 in a televised signing ceremony. See Compl., ECF No. 1. The same day, plaintiff

20

The government disputes this statement “as factual inference or conclusion,” Gov’t’s Resp. to Pl.’s SMF at

5 (responding to ¶ 161), without explaining how the statements made by plaintiff’s declarant, a Firm partner

familiar with the “business and operations” of the firm, 2nd Burman Decl. ¶ 1, including the impact on the Firm’s

revenue from client terminations occurring in the days immediately following the issuance of EO 14230, may be

criticized as based on “inference or conclusion,” rather than direct knowledge. The government’s “dispute” rings

hollow, particularly given (1) the temporal closeness in time between the issuance of EO 14230 and the client

reactions, (2) the long-term relationships between plaintiff and the clients who terminated business with the law

firm, and (3) the Order’s terms, which were designed to hamper the effectiveness of plaintiff’s representation of

clients before federal agencies, as discussed further infra in Part III.B.4.

23

moved for a temporary restraining order (“TRO”) as to only Sections 1, 3 and 5 of EO 14230, Pl.’s

Mot. for Temporary Restraining Order (“TRO Mot.”), ECF No. 2, and that motion was granted

the next day, on March 12, 2025, following a hearing, see Min. Entry (Mar. 12, 2025); TRO Hr’g

Tr. Shortly after the hearing concluded, a written order granting the requested TRO as to EO

14230’s Sections 1, 3 and 5, and explaining the injunction’s exact parameters was posted. Order

(“TRO Order”), ECF No. 21. The parties were additionally directed to file a joint status report

proposing a schedule to govern further proceedings in this case, and the government was directed

to file a status report “describing the steps taken to ensure compliance with this Order and

certifying compliance with its requirements.” Id.

On March 14, 2025, after the Court’s grant of the parties’ joint request for a one-day

extension of time to file a proposed schedule, see Joint Mot. for Extension of Time, ECF No. 23;

Min. Order (Mar. 13, 2025), the parties jointly proposed a schedule to move directly to an

expedited dispositive motions briefing, Joint Status Report ¶¶ 2-3, ECF No. 25. The parties

additionally agreed to a stay of discovery, id. ¶ 4, and “to extend the Temporary Restraining Order

. . . until final judgment,” id. ¶ 5. In accord with the parties’ proposed schedule, the Court issued

an order extending the temporary injunction “until final judgment is entered in this matter” and

setting a schedule to govern the briefing of expedited dispositive motions. Order, ECF No. 26.

That same day, the government submitted a status report describing initial steps taken to comply

with the TRO. Gov’t’s Status Report, ECF No. 27. A second status report outlining additional

steps taken by the government was filed on March 18, 2025. Gov’t’s Status Report, ECF No. 29.

The government’s second status report indicated that, while guidance was issued to all

federal agencies directing them to “suspend and rescind any implementation or enforcement of

Sections 1, 3, and 5 of Executive Order 14230, including any reliance on the statements in Section

24

1 of the Executive Order,” id. ¶ 2, agencies had not been directed to take the additional required

step of immediately communicating “to every recipient of a request for disclosure of any

relationship with Perkins Coie LLP or any person associated with the firm, made pursuant to

Section 3(a) of Executive Order 14230, that such request is rescinded until further order of the

Court,” TRO Order at 2; see also Gov’t’s Status Report, ECF No. 29. As a result, outstanding

disclosure requests to government contractors made by any federal agency other than the seven

named government agencies in this lawsuit, remained in place notwithstanding the broader scope

of the TRO requirement beyond merely those named defendants, based on the fact that the United

States was named as a defendant and defined, for purposes of the lawsuit, as constituting “all other

agencies that are directed by [EO 14230] to take action respecting Perkins Coie.” Compl. ¶ 36.

This shortcoming in implementing fully the TRO prompted plaintiff to seek clarification

of the scope of the TRO, see Pl.’s Mot. to Clarify, ECF No. 30, and alert the Court to the

government’s more limited view of which federal agencies were subject to the TRO, with the

concomitant obligation to rescind disclosure requests to government contractors for information

about any business dealings with Perkins Coie. This motion was granted the following day, and

the government was directed to provide an additional status report certifying compliance with the

TRO, as clarified. Min. Order (Mar. 19, 2025). The government submitted two additional status

reports regarding compliance with the TRO. Gov’t’s Status Report, ECF No. 31; Gov’t’s Suppl.

Status Report, ECF No. 32. 21

21

The government’s supplemental status report included as an attachment the guidance memorandum, dated

March 20, 2025, sent by the Attorney General and OMB Director to all agencies, pursuant to the Court’s order

clarifying the scope of the TRO. This second guidance memorandum, unlike the first guidance memorandum sent on

March 18, 2025, included, for the first time, the following extra text: “The Executive Branch’s position is that

Executive Order 14230 is permissible, and that the Court’s order was erroneous. The government reserves the right

to take all necessary and legal actions in response to the ‘dishonest and dangerous’ conduct of Perkins Coie LLP, as

set forth in Executive Order 14230.” Gov’t’s Suppl. Status Report, Attach., Memorandum from Attorney General

Bondi & OMB Director Vought Re: Court Order Regarding Executive Order 14230, ECF No. 32-1. The inclusion

of this extra text with derogatory statements about plaintiff, quoted directly from Section 1 statements when the use

25

On March 21, the government moved to disqualify the undersigned Judge from this case,

Gov’t’s Mot. to Disqualify Judge Beryl Howell, ECF No. 34, which motion was denied five days

later, Perkins Coie LLP v. U.S. Dep’t of Justice, --- F. Supp. 3d ---, 2025 WL 914099 (D.D.C. Mar.

26, 2025). The parties subsequently briefed their dispositive motions in accordance with the

parties’ jointly proposed schedule, which was adopted by the Court. See generally Pl.’s MSJ; Pl.’s

Mem. of L. in Supp. of Pl.’s MSJ (“Pl.’s Mem.”), ECF No. 39-1; Gov’t’s MTD; Gov’t’s Mem.;

Pl.’s Mem. of L. in Opp’n to Defs.’ MTD (“Pl.’s Opp’n”), ECF No. 142; Gov’t’s Opp’n to Pl.’s

MSJ (“Gov’t’s Opp’n”), ECF No. 143; Gov’t’s Reply to Pl.’s Opp’n to MTD (“Gov’t’s Reply”),

ECF No. 147; Pl.’s Reply Mem. in Supp. of Pl.’s MSJ (“Pl.’s Reply”), ECF No. 148. 22 To support

its entitlement to summary judgment, plaintiff has supplied a fulsome evidentiary record

amounting to over 950 pages, consisting of four expert reports, a representative sample of

President Trump’s statements, dating back to 2017, critical of plaintiff and lawyers formerly

associated with the Firm, contextual information about the targeting of other law firms by the

Trump Administration since late February 2025, and the 148-page report submitted by Special

Counsel Jack Smith to former Attorney General Merrick Garland. See generally Exhibits to Pl.’s

of Section 1 by the government was specifically enjoined, went “beyond the minimum required” to comply with the

Court’s order, as government counsel conceded, Mots. Hr’g Tr. at 20:24-25. As this Court has already noted, this

government conduct “hardly appeared to comply with the TRO Order and raised some concern about the general

presumption by courts ‘that executive officials will act in good faith.’” Perkins Coie LLP v. U.S. Dep’t of Justice,

No. 25-cv-716, 2025 WL 1207079, at *3 (D.D.C. Apr. 25, 2025) (quoting Armstrong v. Exec. Off. of the President,

1 F.3d 1274, 1292-93 (D.C. Cir. 1993)).

22

The government additionally moved for reconsideration of the scope of the injunction, Gov’t’s Mot.

Recons., and the parties were directed to include briefing on that motion in the parties’ already-scheduled briefing

on their dispositive motions, Min. Order (Apr. 3, 2025). The government’s motion for reconsideration and

plaintiff’s motion to amend the Complaint to add all federal departments, agencies and entities subject to and

responsible for implementing EO 14230, were resolved in a separate Memorandum and Order. Perkins Coie, 2025

WL 1207079 (granting plaintiff’s oral motion to amend the complaint to include all federal departments, agencies,

entities, as well as relevant officials, acting in their official capacity, identified, in consultation with the government,

as subject to and responsible for implementing and enforcing EO 14230, and denying as moot the government’s

motion for reconsideration, which the government conceded would be rendered moot by plaintiff’s proposed

amendment to the complaint). Plaintiff filed an Amended Complaint on April 29, 2025, with the additional federal

agency defendants named. Am. Compl., ECF No. 176.

26

MSJ; Pl.’s Opp’n; Pl.’s Reply. The government, for its part, has provided approximately 550

pages of its own Exhibits, the majority of which consists of the 306-page report of Special Counsel

John Durham appointed during the first Trump Administration, but also includes information about

diversity initiatives supported and adopted by plaintiff and about DOJ and EEOC’s investigations

into diversity programs. See generally Exhibits to Gov’t’s Opp’n. 23

A hearing was held on April 23, 2025, to consider both parties’ pending dispositive

motions, which are now ripe for consideration.

II. LEGAL STANDARDS

A. Motion to Dismiss

1. Federal Rule of Civil Procedure 12(b)(1)

“‘Federal courts are courts of limited jurisdiction,’ possessing ‘only that power authorized

by the Constitution and statute.” Gunn v. Minton, 568 U.S. 251, 256 (2013) (quoting Kokkonen v.

Guardian Life Ins. Co., 511 U.S. 375, 377 (1994)). Absent subject-matter jurisdiction over a case,

the court must dismiss it. See Arbaugh v. Y & H Corp., 546 U.S. 500, 506-07 (2006) (citing

Kontrick v. Ryan, 540 U.S. 443, 455 (2004)); Fed. R. Civ. P. 12(h)(3).

To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1), the plaintiff

bears the burden of demonstrating the court’s subject-matter jurisdiction over the claim at issue.

23

In addition to the parties’ voluminous submissions, twenty-two amicus briefs have been submitted in

support of plaintiff from a wide range of interested lawyers and law firms; legal professional organizations; law

professors; 346 former state and federal judges; former and current in-house general counsel; former senior

government officials; media and press freedom organizations; and organizations including the ACLU, Cato Institute,

Institute for Justice, Foundation for Individual Rights and Expression, and Reporters Committee for Freedom of the

Press, among others. A single amicus brief was submitted in support of the government by three gun rights groups

and three conservative advocacy organizations. See Br. Amicus Curiae of America’s Future, Gun Owners of

America, Gun Owners Foundation, Gun Owners of California, Judicial Action Group, & Conservative Legal

Defense & Education Fund in Supp. of Recons. of the TRO & Gov’t’s MTD (“Br. of America’s Future et al.”), ECF

No. 131 (beginning with four Bible verses at the top of the Table of Authorities, see id. at iii, and arguing for

expansive Executive Power, while noting the total number of votes and Electoral College margin in favor of

President Trump, id. at 23, and listing the injunctions issued by federal courts against the current Trump

Administration’s actions, see id. App. 1).

27

Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015) (citing Lujan v. Defs. of Wildlife, 504 U.S.

555, 561 (1992)). When reviewing such a motion, the court must “assume that the complaint states

a valid legal claim,” Huron v. Cobert, 809 F.3d 1274, 1278 (D.C. Cir. 2016), and “accept the well-

pleaded factual allegations as true and draw all reasonable inferences from those allegations in the

plaintiff’s favor,” Kareem v. Haspel, 986 F.3d 859, 865 (D.C. Cir. 2021) (quoting Arpaio, 797

F.3d at 19). The court may also “consider materials outside the pleadings to determine [its]

jurisdiction.” Id. at 856 n.7; see also West v. Lynch, 845 F.3d 1228, 1231 (D.C. Cir. 2017) (“As

necessary, [a court may] cull additional facts from other parts of the record.” (citing Settles v. U.S.

Parole Comm’n, 429 F.3d 1098, 1107 (D.C. Cir. 2005))).

2. Federal Rules of Civil Procedure 8 and 12(b)(6)

Rule 8(a) of the Federal Rules of Civil Procedure requires that a complaint contain a short

and plain statement of the grounds upon which the court’s jurisdiction depends, a short and plain

statement of the claim showing that the pleader is entitled to relief, and a demand for judgment for

the relief the pleader seeks. Fed. R. Civ. P. 8(a). This rule “does not require detailed factual

allegations, but it demands more than an unadorned, the-defendant-unlawfully-harmed-me

accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotations omitted). In addition, Rule

8(d) states that “[e]ach allegation must be simple, concise, and direct.” Fed. R. Civ. P.

8(d)(1). “Taken together, [those provisions] underscore the emphasis placed on clarity and brevity

by the federal pleading rules,” Ciralsky v. CIA, 355 F.3d 661, 669 (D.C. Cir. 2004) (cleaned up),

and to “give the defendants fair notice of what the claim is and the grounds upon which it

rests,” Jones v. Kirchner, 835 F.3d 74, 79 (D.C. Cir. 2016). The purposes of Rule

8(a)(2) and Rule 12(b)(6) overlap, but dismissal is proper under Rule 8 when the complaint is “so

28

confused, ambiguous, vague, or otherwise unintelligible” that a defendant cannot discern the

plaintiff's claims. Ciralsky, 355 F.3d at 670 n.9.

To survive a Rule 12(b)(6) motion to dismiss, the “complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556

U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A facially plausible

claim pleads facts that are not “‘merely consistent with’ a defendant’s liability” but “that allow[]

the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

Id. (quoting Twombly, 550 U.S. at 556-57). In deciding a motion under Rule 12(b)(6), a court

must accept all factual allegations as true, “even if doubtful in fact,” Twombly, 550 U.S. at 555,

and “construe the complaint ‘in favor of the plaintiff,’” Langeman v. Garland, 88 F.4th 289, 294

(D.C. Cir. 2023) (quoting Hettinga v. United States, 677 F.3d 471, 476 (D.C. Cir. 2012)). Courts,

however, “need not accept inferences . . . not supported by the facts set out in the complaint, nor

must the court accept legal conclusions.” Id. (quoting Hettinga, 677 F.4th at 476). In determining

whether a complaint fails to state a claim, a court may consider only the facts alleged in the

complaint and “any documents either attached to or incorporated in the complaint,” as well as

“matters of which the court may take judicial notice.” N. Am. Butterfly Ass’n v. Wolf, 977 F.3d

1244, 1249 (D.C. Cir. 2020) (alterations in original accepted, citation omitted).

B. Summary Judgment

Summary judgment shall be granted “if the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). Facts are only “‘material’ if a dispute over it might affect the outcome of a suit under the

governing law,” meaning that “factual disputes that are ‘irrelevant or unnecessary’ do not affect

the summary judgment determination.” Mayorga v. Merdon, 928 F.3d 84, 89 (D.C. Cir. 2019)

(quoting Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006) (quoting Anderson v. Liberty

29

Lobby, Inc., 477 U.S. 242, 248 (1986))). A dispute is only “genuine” if “the evidence is such that

a reasonable jury could return a verdict for the non-moving party.” Id. (citation omitted). Thus,

“[i]n considering a motion for summary judgment, judges must ask themselves not whether they

think ‘the evidence unmistakably favors one side or the other but whether a fair-minded jury could

return a verdict for the plaintiff on the evidence presented,’ because that evidence is such that “the

jury could reasonably find for the plaintiff.” Stoe v. Barr, 960 F.3d 627, 638-39 (D.C. Cir. 2020)

(quoting Anderson, 477 U.S. at 252).

III. DISCUSSION

Plaintiff advances four overarching and successful constitutional challenges to Sections 1

through 5 of EO 14230, due to the collective import and impact of its purposes, findings and

instructions to all Executive branch agencies. Specifically, the Complaint claims the Executive

Order (1) violates the First Amendment rights of Perkins Coie and the Firm’s clients due to

unlawful retaliation, viewpoint discrimination, and compelled disclosures, Pl.’s Mem. at 10-21;

see also Am. Compl. ¶¶ 126-56 (Counts V, VI, VII); (2) violates Perkins Coie’s rights to due

process of law under the Fifth Amendment, Pl.’s Mem. at 21-27; see also Am. Compl. ¶¶ 99-116

(Counts II and III); (3) violates the Firm’s clients’ right to counsel under the Fifth and Sixth

Amendments, Pl.’s Mem. at 27-31; see also Am. Compl. ¶¶ 157-68 (Counts VIII and IX); and (4)

unconstitutionally denies equal protection of the law to Perkins Coie by singling the firm out for

unfair treatment, Pl.’s Mem. at 37-38; see also Am. Compl. ¶¶ 117-25 (Count IV). 24 Plaintiff

additionally argues that each of the factors for permanent injunctive relief has been satisfied and

24

Plaintiff also claims that EO 14230 exceeds the President’s constitutional and statutory authority and

therefore violates the Constitution’s separation of powers, Pl.’s Mem. at 31-36; see also Am. Compl. ¶¶ 85-98

(Count I), but this claim, as noted supra n.5, is not addressed.

30

Sections 1 through 5 of EO 14230 should therefore be permanently enjoined. Pl.’s Mem. at 38-

45.

The government, meanwhile, seeks dismissal of all nine counts of plaintiff’s complaint, on

various grounds, predicated on the view that “[t]he law does not support Plaintiff’s claims as to

Sections 1, 2, 3, 4, and 5; and as to Section 5 specifically, Plaintiff’s claim is at best too early and,

as any guidance will be consistent with the law, will eventually fail on the merits.” Gov’t’s Mem.

at 3. In so moving, the government confusingly reads the nine counts in plaintiff’s complaint as

each challenging separate sections of EO 14230, see, e.g., id. at 8 (asserting that “[o]nly Counts II

and III . . . actually challenge Section 1” of the Order); Gov’t’s Opp’n at 3-4, and, on this basis,

critiques the complaint as being “imprecise” and “severely handicap[ping] [its] and the Court’s

ability to ascertain the particulars of Plaintiff’s challenges to the various sections of the Executive

Order, including which allegations and claims in the Complaint pertain to which sections of the

Executive Order.” Gov’t’s Mem. at 3. 25 This reading of the Amended Complaint, however, is

erroneous. Seven of its nine counts plainly challenge, collectively, all sections of EO 14230 as

unlawful. See, e.g., Am. Compl. ¶ 101 (claiming, in Count II, that “[t]he Order interferes with . . .

multiple . . . interests protected by the Due Process Clause”); id. ¶ 108 (claiming, in Count III, that

“[t]he Order is unconstitutionally vague”); id. ¶ 124 (claiming, in Count IV, that “[t]he Order is . .

. in violation of the Equal Protection Clause”); id. ¶ 128 (claiming, in Count V, that “[t]he Order .

. . constitute[s] viewpoint discrimination”); id. ¶ 155 (claiming, in Count VII, that “[t]he Order . .

. violates the First Amendment”); id. ¶ 160 (claiming, in Count VIII, “[t]he Order” violates “the

25

This critique of plaintiff’s complaint is somewhat ironic given the government’s lack of clarity in

identifying the specific grounds relied upon in seeking dismissal of the claims, compounded by the government’s

failure to comply with applicable procedural rules in bringing a cross-motion for summary judgment. See infra

n.26.

31

firm’s clients’ Sixth Amendment rights to counsel”); id. ¶ 168 (claiming, in Count IX, “[t]he

Order[] violat[e]s” the Fifth Amendment right to counsel). In the remaining two counts, plaintiff

also clearly identifies the sections subjected to challenge. See id. ¶ 142 (claiming, in Count VI,

that “Section 3 of the Order is facially unconstitutional”); Pl.’s Mem. at 31 (indicating that Count

I challenges “Sections 1, 2(b), 3, and 5”).

The government’s motion to dismiss is addressed first before turning to plaintiff’s motion

for summary judgment.

A. The Government’s Motion to Dismiss

The government argues that all plaintiff’s claims should be dismissed for multiple alleged

deficiencies, which are discussed in the government’s supporting memorandum by reviewing EO

14230 on a section-by-section basis. 26 None of these arguments are persuasive. While the

government organizes its briefing in a manner designed to mount a forceful defense of each section

of the Order, Federal Rule of Civil Procedure 12(b) guides the assertion of defenses to “claim[s]

for relief,” Fed. R. Civ. P. 12(b) (emphasis supplied), as plaintiff correctly points out, see Pl.’s

Opp’n at 5. Thus, the normal form of analysis of a motion to dismiss under Rule 12(b) requires

review of each claim asserted to assess its sufficiency, but this is not how the government presented

its arguments. To reduce redundancy, the sufficiency of each claim is considered as part of

assessing whether plaintiff is entitled to summary judgment on the claims, in Part III.B. The

26

Neither the government’s motion to dismiss itself or its proposed order cites to any procedural rule as the

basis for the requested dismissal, see Gov’t’s MTD; id., Proposed Order, ECF No. 43-2), and the government’s

memorandum in support likewise contains no clear statement of the procedural rules relied upon as to each claim,

leaving the legal bases for the motion to the Court to discern from vague headings used in the government’s

memorandum or to tease out of the text of the same document, despite the critical differences in applicable standards

depending on which rule is relied upon. Regardless of whether this reflects a strategy to “disguise[] the nature of its

motion,” Pl.’s Opp’n at 5, plaintiff requests denial of any intended government cross-motion for summary judgment

“for failure to comply with [D.D.C.] Local Rule 7(h)(1), which requires a statement of undisputed material facts

supported by record citations,” id. This basis for denial urged by plaintiff need not be resolved since the pending

motions are resolved on alternative grounds.

32

general arguments raised by the government’s motion to dismiss—which arguments are only

loosely tied, if at all, to specific procedural rules to test the sufficiency of the claims as pleaded—

are addressed in this Part.

1. Plaintiff Contests Purported Findings in EO 14230’s Section 1.

The government blithely describes the statements set out in Section 1 of EO 14230 as “not

seriously contested” and “matters of public record.” Gov’t’s Mem. at 7. This description is

inaccurate. Plaintiff “vigorously contests” Section 1’s allegations of racial discrimination

throughout the complaint. Pl.’s Opp’n at 2; see, e.g., Am. Compl. ¶ 45 (stating that Plaintiff “does

not, and did not” racially discriminate against its employees); id. ¶ 46 (contesting Section 1’s “false

premise” that “promoting diversity in the legal profession” equates to illegal discrimination); id.

¶ 51 (calling Section 1’s allegations “false and disparaging”).

Moreover, to the extent that certain factual matters alluded to in Section 1 are not contested,

see, e.g., Pl.’s SMF ¶ 83 (acknowledging three former Perkins Coie lawyers were sanctioned, in

2021, a total of $8,700 resulting from a duplicative motion filed in a voting rights appeal), plaintiff

does challenge the use of these statements as a basis for the government actions directed in EO

14230, see, e.g., Am. Compl. ¶¶ 2, 8 (challenging the Order as “not executive in nature,” id. ¶ 2,

and stating that “[t]he principal claims made by the Order have already been raised in the proper

forum and resolved by the branch of government with constitutional authority to do so,” id. ¶ 8);

Pl.’s Mem. at 35 (arguing the Order impermissibly invades the judicial function, “given that federal

courts already have adjudicated many of the President’s grievances referenced in the Order”).

The thrust of the government’s inaccurate characterization of Section 1’s statements as

“undisputed” appears to be that these statements are immune from, or would survive, any factual

or legal claims asserted by plaintiff, and therefore Section 1 must withstand any challenge lodged

33

by plaintiff on any constitutional basis. This defense falls short on both procedural and legal

grounds. As a factual matter, in the procedural posture of a motion to dismiss, the amended

complaint’s allegations firmly disputing the veracity of the Section 1 statements are assumed to be

true and any factual disputes may not be resolved on a motion to dismiss for failure to state a claim.

See supra Part II.A.2. As a legal matter, Section 1’s statements setting out the “Purpose” of the

Order are highly probative of the sufficiency of the claims of constitutional violations, as discussed

more fully infra in Part III.B.1, and thus may certainly not be accepted as appropriate, let alone

“straightforwardly legal,” as the government urges, Gov’t’s Mem. at 1.

2. EO 14230’s Section 1 Operates as Actionable Findings.

Discounting EO 14230’s Section 1 as merely a “preamble,” rather than an “operative

section[],” Gov’t’s Mem. at 1, the government contends that Section 1’s statements “lay[] out the

President’s concerns about the law firm Perkins Coie,” id. As such, the government argues that,

though plaintiff “does not like what the current Administration thinks about Plaintiff,” id. at 13,

the Firm may not “muzzl[e],” id. at 1, or “silence the Government’s own opinions,” id. at 13. On

this basis, the government seeks dismissal of any of plaintiff’s claims challenging Section 1. See

Gov’t’s Mem. at 13 (“Plaintiff has no right to silence the Government’s own opinions. Plaintiff’s

claims asking this Court to do just that should be dismissed.”).

The government’s argument suggests that to the extent the Section 1 statements amount

merely to President Trump’s protected speech, at least that section (and potentially the full Order)

may not be enjoined. See id.; Gov’t’s Opp’n at 6-8; Gov’t’s Reply at 2-3. Not so. While

government officials may, under the First Amendment, “share [their] views freely and criticize

particular beliefs,” they may not “use the power of the State to punish or suppress disfavored

expression.” Vullo, 602 U.S. at 188; see infra Part III.B.1. (addressing plaintiff’s viewpoint

discrimination and retaliation claim). Courts may, therefore, properly “scrutinize” cases where

34

“the application of state power” is called into question. Vullo, 602 U.S. at 188 (quoting NAACP

v. Alabama ex rel. Patterson, 357 U.S. 449, 463 (1958)).

The government’s attempt to reframe this case as about governmental speech is subterfuge.

Plaintiff has not sued at any point over the last almost decade when President Trump, either when

serving in an official role as President or as a private citizen and political candidate, made

derogatory statements about the Firm and its current or former employees. Exactly the opposite:

then-former President Trump sued plaintiff, among others, for some of the same conduct described

in the Section 1 statements, and plaintiff prevailed in that suit. See supra n.7 and associated text.

The claims that the government seeks to dismiss in this lawsuit challenge the use of governmental

power, not governmental speech. More specifically, plaintiff seeks to enjoin the use of the Section

1 statements by executive branch actors to justify adverse actions toward plaintiff, on grounds that

actions based on those statements would constitute unlawful retaliation and other violations of

plaintiff’s and its clients’ constitutional rights. See TRO Hr’g Tr. at 9:17-20 (plaintiff’s counsel

expressly stating that plaintiff sought “instruction to departments, agenc[ies], and the

administration that they are not to use Section 1’s findings as a direction for any interactions with

Perkins Coie”); see also id. at 8:6-9:1.

Indeed, the government acknowledges that Section 1’s statements are more than mere

governmental speech and form the basis for the Order’s “Purpose” and amount to findings by

President Trump that guide implementation of the instructions that follow. See TRO Hr’g Tr. at

48:7-11 (government counsel confirming Section 1’s statements are “finding[s]”; id. at 48:12-

49:21 (government counsel indicating that the President had the power to make such findings and

to direct resulting actions); Mots. Hr’g Tr. at 38:14-24 (government counsel conceding that the

findings in Section 1 inform the determination of the “national interest”); Gov’t’s Mem. at 7

35

(describing Section 1 as “a brief factual explanation for the operational elements of the Executive

Order”); Manning Decl., Ex. 55, Tr. of Mar. 28, 2025, Mot. Hr’g at 20:6-9, Jenner & Block LLP

v. U.S. Dep’t of Justice, 25-cv-916, ECF No. 10 (D.D.C.), ECF No. 39-4 at 610 (government

counsel acknowledging, in a case involving a similar EO targeting Jenner & Block LLP, that “any

member of the Executive . . . wrestling with how to implement [the EO] . . . would necessarily be

resorting and looking at what was said in Section 1 to guide that decision”). The text of EO 14230

makes this explicit, stating that the Section 1 statements provide “good cause to conclude that”

plaintiff should “neither have access to our Nation’s secrets nor be deemed responsible stewards

of any Federal funds,” EO 14230 § 1, 90 Fed. Reg. at 11781, which conclusions are effectuated

by the subsequent instructions in the Order, id. §§ 2-5, 90 Fed. Reg. at 11781-82.

The TRO issued by this Court carefully skirted the President’s own free speech rights and

neither treaded on those rights nor enjoined the President from making statements. Instead, the

TRO enjoined the government from “using the statements” against plaintiff, plaintiff’s employees,

or plaintiff’s clients or their employees. TRO Order at 1 (emphasis supplied). Put another way,

plaintiff does not challenge “what the current Administration thinks about Plaintiff,” Gov’t’s Mem.

at 13, but rather what the current Administration seeks to do to plaintiff based on that thinking.

Plaintiff does not seek, nor would this Court grant, an injunction to prevent President

Trump from “shar[ing] [his] views” or “criticiz[ing] particular beliefs.” Vullo, 602 U.S. at 188.

At the same time, however, plaintiff may challenge “the application of state power” against

plaintiff, id. (quoting Patterson, 357 U.S. at 463), based on statements qualifying as “findings”

used to justify an order with which Executive branch agencies must comply.

3. Plaintiff’s Challenges to EO 14230’s Section 2 Are Justiciable.

36

EO 14230’s Section 2(a) directs all “relevant heads of executive departments and agencies”

“immediately [to] take steps consistent with applicable law to suspend any active security

clearances held by individuals at Perkins Coie, pending a review of whether such clearances are

consistent with the national interest.” EO 14230 § 2(a), 90 Fed. Reg. at 11781. The government

acknowledges that this suspension, by its terms, applies to all of plaintiff’s employees, lawyers

and non-lawyers, regardless of their role at the Firm, the reason for grant or use of the clearance,

or any other individual characteristics, such as the employee’s former or current military service.

Mots. Hr’g Tr. at 23:22-24:14; see also 2nd Burman Decl. ¶¶ 36, 38 (explaining that two current

Firm employees currently serve in the military reserves and “hold clearances in connection with

their duties as military reservists” and twelve hold clearances due to “former military or other

public service backgrounds”). In the government’s view, this section of the Order is “not judicially

reviewable,” in light of “governing D.C. Circuit precedent,” and thus requires dismissal of

plaintiff’s claims challenging Section 2. Gov’t’s Mem. at 14 (citing Lee v. Garland, 120 F.4th 880

(D.C. Cir. 2024)). The government’s argument, however, overreads Lee and ignores other

precedents that lead to the opposite conclusion.

In Lee, the D.C. Circuit considered whether courts are barred “from considering

constitutional challenges to adverse clearance decisions.” 120 F.4th at 887. The analysis

examined the nature of decisions on individual security clearance applications, which require the

weighing of “intangible qualities such as ‘loyalty to the United States, strength of character,

trustworthiness, honesty, reliability, discretion, and sound judgment,’” id. at 893 (quoting Exec.

Order No. 12968, 60 Fed. Reg. 40245, 40250 (Aug. 2, 1995)), and exercising “predictive

judgment” about the individual’s ability to safeguard sensitive information, id. (quoting Dep’t of

the Navy v. Egan, 484 U.S. 518, 529 (1988)). These determinations, the Circuit explained, are “an

37

inexact science at best,” requiring a “judgment call” made by experts, and thus are “committed to

the broad discretion of the agency responsible.” Id. (quoting Egan, 484 U.S. at 528-29). Invoking

the Supreme Court’s holdings in Egan that “it is not reasonably possible for an outside nonexpert

body to review the substance of such a judgment and . . . decide whether the agency should have

been able to make the necessary affirmative prediction with confidence,” nor possible for

nonexperts to “determine what constitutes an acceptable margin of error in assessing the potential

risk,” Egan, 484 U.S. at 529, the Circuit held that courts may not consider constitutional challenges

to “Executive Branch decision[s] to deny or revoke a security clearance” of an individual, Lee,

120 F.4th at 891.

Importantly, the Lee decision did not disturb prior D.C. Circuit holdings making expressly

clear that “[i]t is simply not the case that all security-clearance decisions are immune from judicial

review.” Nat’l Fed’n of Fed. Emps. v. Greenberg, 983 F.2d 286, 289 (D.C. Cir. 1993). While

“discretionary judgments regarding a particular employee’s security clearance” are unreviewable,

examples of reviewable decisions include “the constitutionality of the methods” used to collect

information and make the required determinations. Id. at 290. Other Supreme Court and D.C.

Circuit opinions confirm that judicial review is available for claims that a general discriminatory

policy governing security clearances exists. See, e.g., Webster v. Doe, 486 U.S. 592, 602 (1988)

(differentiating between a claim that a respondent was terminated “based on his homosexuality”

and a claim “that a more pervasive discrimination policy exists . . . regarding all homosexuals”

(emphasis in original)); Doe v. Gates, 981 F.2d 1316, 1322 (D.C. Cir. 1993) (assuming, on remand

in the same case, that a “blanket policy against homosexuals” would be unconstitutional); Gill v.

U.S. Dep’t of Justice, 875 F.3d 677, 685 (D.C. Cir. 2017) (Tatel, J., concurring) (“In my view, if

[appellant] could show that the government has a policy or practice of treating Muslims or

38

naturalized citizens differently, his equal protection claims, like the claims at issue in Greenberg,

would not be barred by Egan.” (emphasis supplied)).

Considering the fuller context of binding precedents and where Lee fits comfortably within

this jurisprudence, judicial review of the Order’s Section 2(a) is available in the instant case for at

least four reasons. First, plaintiff seeks judicial review not of any individual security clearance

decision, but of a publicly announced general policy governing security clearances for any member

of a class of people—here, the class consists of employees of plaintiff—which policy plaintiff

alleges is constitutionally suspect on multiple bases. This is directly analogous to seeking review

of an alleged “discrimination policy,” Webster, 486 U.S. at 602, not based on any individualized

assessments of any of the employees to whom the suspension applies. Lee addressed only a

challenge to an individual “denial or revocation of security clearances,” 120 F.4th at 887, and does

not foreclose review of challenges to general policies governing security clearances. Both Webster

and Doe confirm that review of the latter types of claims is proper.

Second, because plaintiff challenges a general policy rather than an individual

determination, judicial review would not require a court to wade into the issues animating the

decision in Lee. For example, review of EO 14230 or similar general policies on the record here

does not require an examination of any of the “intangible qualities” weighed in individual

clearance decisions, Lee, 120 F.4th at 893; or second-guessing any of the “predictive judgment[s]”

or “judgment call[s],” id. (quoting Egan, 484 U.S. at 529), of the security clearance experts; or

making any risk assessments, see Egan, 484 U.S. at 529. The D.C. Circuit made a similar

observation in Rattigan v. Holder, 689 F.3d 764, 767-68 (D.C. Cir. 2012), where the Circuit held

that judicial review is only barred when “security clearance-related decisions made by trained

Security Division personnel” are at issue, since these decisions involve “sensitive, predictive

39

judgments,” but is not absolutely barred as to decisions made by other employees who do not make

these types of expert judgments.

Third, related to the second reason, each case relied upon by the government in which the

challenged individual security clearance decision was found to be non-justiciable involved a

challenge to an individualized process conducted by expert agency examiners that included

consideration of articulable findings directly pertinent to the individual with the clearance. In Lee,

for instance, the plaintiff challenged the results of three specific polygraph examinations

performed by agents of the Federal Bureau of Investigation, the failure of which examinations led

to the revocation of his clearance. 120 F.4th at 884-85. After failing the first two exams and

having his clearance revoked on that basis, he appealed this adverse decision to an expert body at

DOJ, which ordered him to sit for a third exam. Id. After failing the third exam, he was fired. Id.

at 885. Similarly, in Egan, a laborer at a naval facility in Washington state was denied a clearance

and subsequently fired due to his undisclosed prior criminal convictions and his statements

acknowledging past alcohol abuse. 484 U.S. at 520-21. The respondent in that case was given a

chance to respond, and favorable material he provided was weighed by the experts against the

material they had deemed unfavorable. Id. at 521-22. After an unsuccessful appeal of this

decision, the respondent was removed from the job. Id. at 522.

The decisions in Lee and Egan are easily reconciled with those in Webster, Greenberg, and

Rattigan. Where individual decisions are made by experts based on information specific to the

individual, such as the results of polygraph examinations, see Lee, 120 F.4th at 884-85, or the

weighing of both specific negative and favorable information about an individual, see Egan, 484

U.S. at 521, courts have no basis on which to redo the analysis or second-guess the decisions, see,

e.g., Lee, 120 F.4th at 893 (explaining that review in such cases would “present . . . unmanageable

40

questions” to courts). In circumstances like the instant case, however, no such process or apparent

expertise was involved, and where the allegation is that a pervasive, class-wide discriminatory

policy exists against some group of individuals, the questions involved do not create any need for

courts to second-guess experts or weigh unmanageable standards.

Finally, and notably, Section 2(a) never invokes national security as the reason, or even

one of multiple reasons, for the specific action directed to suspend and review security clearances

held by plaintiff’s employees. See generally EO 14230 § 2, 90 Fed. Reg. at 11781 (citing

suspension “pending a review of whether such clearances are consistent with the national interest”

only (emphasis supplied)). When the government does not even claim that a general policy about

security clearances was motivated by national security, judicial review of that policy could not

threaten unduly entangling the judicial branch in questions of national security. Instead, the EO

invokes “the national interest,” id., a concept seemingly far broader and more nebulous than threats

to national security. When asked, government counsel was unable to define what exactly falls

within the scope of “the national interest,” see, e.g., TRO Hr’g Tr. at 52:21-53:4, and the scope

appears to be essentially unlimited, since disagreements about the benefits of diversity programs

in hiring apparently qualify, see EO 14230 § 1, 90 Fed. Reg. at 11781 (stating that plaintiff’s

alleged discrimination “represents good cause to conclude that they [should not] have access to

our Nation’s secrets”); Gov’t’s Reply at 1 (complaining about plaintiff’s “aggressive DEI

practices”). Finding any such government actions judicially unreviewable simply because the

Executive branch invoked “the national interest” would represent a breathtaking expansion of

executive power at the expense of the constitutionally mandated role of the judicial branch and the

concomitant safeguards for the individual rights of Americans.

41

In sum, here, the issues on which plaintiff seeks judicial review are appropriate for the

courts. Evaluating plaintiff’s challenge requires only the application of longstanding legal

principles and constitutional interpretation—“the heartland of the judicial ken.” J.G.G. v. Trump,

No. 25-5067, 2025 WL 914682, at *6 (D.C. Cir. Mar. 26, 2025) (Henderson, J., concurring). For

instance, to resolve the claim that the suspension of, and announcement of an investigation into,

all clearances held by plaintiff’s employees is unconstitutional retaliation for First Amendment

activity, see infra Part III.B.1, the Court need only apply the test long articulated by the Supreme

Court, asking first whether the “adverse action . . . [was] based on [a] forbidden motive,” Nieves

v. Bartlett, 587 U.S. 391, 398 (2019), and second, whether any claimed “non-retaliatory grounds

[were] in fact insufficient to provoke the adverse consequences,” id. (quoting Hartman v. Moore,

547 U.S. 250, 256 (2006)). The same is true for plaintiff’s claim of viewpoint discrimination. See,

e.g., Vullo, 602 U.S. at 188 (stating that a government official “cannot . . . use the power of the

State to punish or suppress disfavored expression”). As plaintiff persuasively argues, such

questions “‘sound[] in familiar principles of constitutional interpretation’ and can be answered

through ordinary judicial tools.” Pl.’s Mem. at 16 (quoting Zivotofsky v. Clinton, 566 U.S. 189,

201 (2012)).

Certainly, substantial discretion is given to the Executive branch in matters of national

security. See, e.g., Lee, 120 F.4th at 891. Yet, this authority, “like every other governmental

power, must be exercised in subordination to the applicable provisions of the Constitution.”

Dames & Moore v. Regan, 453 U.S. 654, 661 (1981) (quoting United States v. Curtiss-Wright

Export Corp., 299 U.S. 304, 319-20 (1936)). While the President may have the discretion to make

substantive decisions on individual security clearances, see generally Lee, 120 F.4th 880, he may

not apply a discriminatory policy to a group of individuals during the process of making such

42

decisions, see Greenberg, 983 F.2d at 290, as plaintiff alleges occurred in the instant case. Since

the questions raised in this case are proper for judicial review and determination, without requiring

review of the sensitive individual determinations left to the Executive branch, the government’s

blanket demand for dismissal of plaintiff’s challenges to EO 14230’s Section 2 for lack of

justiciability fails.

The government also lodges a last gasp basis to dismiss plaintiff’s challenge to Section 2

as “not ripe” and “premature for judicial consideration” because the clearances have been

suspended pending “a further security clearance determination.” Gov’t’s Mem. at 16. This basis

for dismissal also fails. Plaintiff’s Amended Complaint describes the actions already effectuated

by EO 14230, including, for example, the “Order’s threatened suspension of active security

clearances held by Perkins Coie employees because the firm embraces programs and policies that

espouse a belief in ‘diversity, equity, and inclusion’ makes it a violation of the firm’s First

Amendment right of free expression.” Am. Compl. ¶ 149 (emphasis supplied). Such explicit

threats tied to continuation of specified speech are not a speculative future harm. As the Supreme

Court has held, “threat[s] of . . . coercion” intended “‘to achieve the suppression’ of disfavored

speech” are sufficient to “violate[] the First Amendment.” Vullo, 602 U.S. at 180 (quoting Bantam

Books, Inc. v. Sullivan, 372 U.S. 58, 67 (1963)). The question presented here, whether the actions

already taken in this case amount to such threats, is a “purely legal” issue that “will not be clarified

by further factual development,” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 167 (2014)

(quoting Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 581 (1985)), since the ultimate

outcome of any “review of whether such clearances are consistent with the national interest,” EO

14230 Sec. 2(a)—whatever such “national interest” means—has no bearing on whether the threat

of suspension and review made by the EO constitutes unlawful retaliation.

43

4. Plaintiff Has Standing to Challenge EO 14230’s Section 3.

The government contends that plaintiff lacks standing to assert any claim challenging EO

14230’s Section 3, which directs all “Government contracting agencies” to “require Government

contractors to disclose any business they do with Perkins Coie and whether that business is related

to the subject of the Government contract.” EO 14230 § 3(a), 90 Fed. Reg. at 11781; see Gov’t’s

Mem. at 19-21. By its terms, the required disclosures include all business with Perkins Coie,

whether relating to a federal government contract or not. This section further requires the “heads

of all agencies” to “take appropriate steps to terminate any contract . . . for which Perkins Coie has

been hired to perform any service,” id. § 3(b)(i), 90 Fed. Reg. at 11782, and to “otherwise align

their . . . funding decisions with the interests of the citizens of the United States” and “the goals

and priorities” of the Trump Administration “as expressed in executive actions,” id. § 3(b)(ii). In

case the implications of that somewhat murky language are unclear, the accompanying fact sheet

helpfully clarifies the issue: “the Federal Government will prohibit funding contractors that use

Perkins Coie LLP.” EO 14230 Fact Sheet.

The government seeks dismissal of any claim challenging Section 3 on the ground that

plaintiff failed to allege any injury traceable to this section by not specifically alleging being party

to any government contract or currently performing work on any government contract. See Gov’t’s

Mem. at 19-21. This argument simultaneously misrepresents the scope of Section 3 and misreads

plaintiff’s complaint, and thus may be easily dispatched. Whether plaintiff itself is directly a

signatory to a federal government contract is immaterial if plaintiff sufficiently pleads injury-in-

fact traceable to Section 3 and redressable by the injunctive relief requested by performing work

for clients holding or seeking to hold federal government contracts. The Amended Complaint

amply alleges facts to satisfy these standing prerequisites.

44

In response to the Order’s directives, for example, the Amended Complaint alleges that

“several clients have already terminated, or have communicated that they are considering

terminating, their legal engagements with Perkins Coie” “[b]ecause of the Order . . . and risk of

contract termination faced by clients with government contracts.” Am. Compl. ¶ 70 (emphasis

supplied). The complaint further alleges that, in the short time between the issuance of the Order

and the Court’s TRO, some of the firm’s clients “reported [receiving] very concerning messages

from government officials directing them to report business with Perkins Coie, and others are

concerned about that possibility.” Id. These allegations plainly plead injuries directly traceable

to Section 3 and thus establish plaintiff’s standing to challenge the constitutionality of this

provision.

5. Plaintiff Has Standing to Challenge EO 14230’s Section 4.

The government also attacks plaintiff’s standing to challenge Section 4, contending that

plaintiff cannot trace any alleged injury from the EEOC’s review of plaintiff to EO 14230’s Section

4, since the directed “‘review’ and ‘investigat[ion]’ of ‘the practices of representative large,

influential, or industry leading law firms’ for consistency with civil rights laws, Gov’t’s Mem. at

26 (alteration in original) (quoting EO 14230 § 4(a), 90 Fed. Reg. at 11782), is “already what the

EEOC is supposed to be doing,” id. (emphasis in original). To bolster this argument, the

government cites Executive Order 14173, titled “Ending Illegal Discrimination and Restoring

Merit-Based Opportunity,” 90 Fed. Reg. 8633 (Jan. 21, 2025) (“Anti-DEI EO”), issued on

President Trump’s second day in office. This Anti-DEI EO directs, among other actions, federal

agencies to “enforce civil rights laws and combat illegal private-sector DEI policies and practices.”

Gov’t’s Mem. at 27 (citing EO 14173 §§ 2, 4(b), 90 Fed. Reg. at 8633, 8635). According to the

government, these already-existing requirements mean plaintiff cannot show that the “alleged

45

retaliatory action[] ‘would not have been taken absent the alleged retaliatory motive.” Id.

(alteration accepted) (quoting Hous. Cmty. Coll. Sys. v. Wilson, 595 U.S. 468, 477 (2022)).

The government’s reasoning that the Anti-DEI EO breaks the traceability of any harm from

challenged Section 4, thereby obviating plaintiff’s standing to bring a challenge to EO 14230’s

Section 4, proves too much and only highlights the logical fallacy in the government’s argument.

As plaintiff points out, see Pl.’s Opp’n at 17-18, the fact that the EEOC may already have the

statutory authorization and presidential mandate to conduct investigations, report to the President,

and file charges, Gov’t’s Mem. at 26-27 (citing 42 U.S.C. §§ 2000e-5(a), -4(e), -5(b), and Anti-

DEI EO), makes Section 4 “at most redundant, except insofar as it singles out [plaintiff] for

opprobrium and punishment by all federal agencies,” Pl.’s Opp’n at 18. Section 4 focuses the

EEOC on “representative large, influential, or industry leading law firms,” without expressly

naming plaintiff, but the inclusion of this direction in an Order explicitly targeting plaintiff speaks

volumes. In addition, the match-up in Section 1’s statements critiquing plaintiff’s hiring and

promotion practices and Section 4’s descriptions of the “large” law firm practices the EEOC is

directed to review, leaves little doubt that plaintiff is included on the EEOC’s targeted law firm

list. The government concedes as much. Gov’t’s Mem. at 2 (“Section 4 directs the Attorney

General and the Chair of the [EEOC] to review whether Perkins Coie and like employers are

violating the civil rights laws.”).

The government further defends Section 4 on grounds that “[t]he EEOC is already required

to make ‘report[s] . . . to the President . . . on the cause of and means of eliminating discrimination,’

including in any industry the President directs the EEOC to review.” Gov’t’s Mem. at 26 (citing

42 U.S.C. § 2000e-4(e), titled “Reports to Congress and the President,” that provides only for the

EEOC to: (1) report annually “concerning the action it has taken and the moneys it has

46

disbursed[,]” and (2) “make such further reports on the cause of and means of eliminating

discrimination and such recommendations for further legislation as may appear desirable,” without

anywhere authorizing the President to direct EEOC investigations). Even assuming the President

has the authority the government claims to direct the EEOC to “review” certain industries, no

authority is identified by the government—and the Court is aware of none—empowering the

President to direct the EEOC to target specific businesses or individuals for an investigation. See

generally id. at 26-27.

Moreover, the government identifies no authority allowing the President to direct the

initiation of investigations without regard to extant statutory prerequisites requiring, for example,

before the opening of an investigation, that a charge be filed with the Commission that is “in

writing under oath or affirmation,” 42 U.S.C. § 2000e-5(b); see also Commissioner Charges, U.S.

EEOC, https://www.eeoc.gov/commissioner-charges#_edn4 (last visited May 1, 2025)

(“Commissioner charges must be in writing, signed, and verified.” (citing 29 C.F.R. §

1601.11(a))). As the Supreme Court has explained, “the EEOC’s investigative authority is tied to

charges filed with the Commission; unlike other federal agencies that possess plenary authority to

demand to see records relevant to matters within their jurisdiction, the EEOC is entitled to access

only to evidence ‘relevant to the charge under investigation.’” EEOC v. Shell Oil Co., 466 U.S.

54, 64 (1984) (footnote omitted) (quoting 42 U.S.C. § 2000e-8(a)). Government counsel

acknowledges that no such charge meeting statutory prerequisites has been filed against plaintiff.

Mots. Hr’g Tr. at 74:5-8 (“I don’t think that’s happened here.”); see also id. at 103:7-12 (plaintiff’s

counsel noting that the request received from the EEOC “seemed very similar . . . to the type of

request you would get after a charge, which would trigger all the rights that you get under

congressionally delegated authority”). Yet, the inclusion of Section 4(a) in EO 14230 targeting

47

only one law firm (plaintiff) implicitly claims all these powers for the President here—both

presuming the President’s power is so extensive that he may direct the EEOC’s investigative

attention and also override statutory prerequisites to initiate an EEOC investigation. These legally

questionable assumptions about the scope of presidential power underpin the government’s effort

to dismiss plaintiff’s claims challenging EO 14230’s Section 4 and only serve to confirm plaintiff’s

showing of traceability of harm to this Order and support plaintiff’s standing to challenge Section

4.

In any event, the Amended Complaint describes actions already taken under the authority

of EO 14230’s Section 4, see Am. Compl. ¶ 153 (discussing “[t]he threatened investigations into

Perkin Coie’s hiring, retention, promotion, and training practices”), and alleges specific harm from

those actions, id. ¶ 154 (detailing potential costs to plaintiff, in both money and firm resources, as

well as reputational harm). For the same reasons already discussed, see supra Part III.A.3.,

plaintiff’s challenge to threats of investigation as, inter alia, unconstitutional retaliation and

viewpoint discrimination may properly be considered.

6. Plaintiff’s Challenges to EO 14230’s Section 5 are Ripe.

The government argues that any challenge to EO 14230’s Section 5 must be dismissed as

premature, since the exact contours of the restrictions that will be imposed on plaintiff and its

employees to limit their “official access from Federal Government buildings” and their “engaging”

with “Government employees acting in their official capacity,” EO 14230 § 5(a), are as yet

unknown, pending the issuance of guidance to implement those two directives, Gov’t’s Mem. at

28-29 (“Plaintiff can only guess the degree to which agency heads will limit government access.”).

As an initial matter, this ripeness argument does not apply to Section 5(b), which directs agencies

to “refrain from hiring employees of Perkins Coie, absent a waiver from the head of the agency,

48

made in consultation with the Director of the Office of Personnel Management, that such hire will

not threaten the national security of the United States.” EO 14230 § 5(b), 90 Fed. Reg. at 11782.

As the fact sheet further explains, this section means “Federal Agencies will . . . refrain from hiring

Perkins Coie LLP employees unless specifically authorized,” EO 14230 Fact Sheet—no additional

guidance needed. So, not even the government contends that any ripeness issue precludes review

of Section 5(b).

As to Section 5(a), the government’s ripeness arguments are unavailing. The Order makes

clear that, whatever the exact guidance ultimately issued, the access of employees of Perkins Coie

to federal buildings and government employees will be “limit[ed]” as a result. EO 14230 § 5(a),

90 Fed. Reg. at 11782; see also EO 14230 Fact Sheet (“The Federal Government will . . . restrict

[plaintiff’s] employees’ access to government buildings.”). As alleged in the Amended Complaint,

on at least two occasions in the days between issuance of EO 14230 and the TRO, federal

employees cancelled meetings with plaintiff’s employees, citing the Order. Am. Compl. ¶¶ 67-

68. Partially due to both the directive that access be limited and these cancellations, plaintiff lost

multiple clients and representations. Id. ¶¶ 70-78. The government’s protestations that plaintiff’s

challenges to Section 5 are too speculative are contradicted by these clear, tangible allegations of

harm. Consequently, the government’s ripeness argument to obtain dismissal of plaintiff’s claims

challenging Section 5 fail on this basis alone.

In addition, plaintiff persuasively argues that the mere threat of limited access, whatever

the exact details of the final guidance may be, constitutes unconstitutional retaliation to suppress

viewpoints with which the current presidential administration disagrees. See Pl.’s Opp’n at 20

(“Only indiscriminate retaliatory animus can explain” Section 5.). As previously explained, see

supra Part III.A.3., threats of retaliation may be sufficient to constitute unconstitutional retaliation

49

under the First Amendment, see infra Part III.B.1., regardless of the ultimate outcome of the

threatened actions. Thus, the Court need not wait for the issuance of final guidance to review

plaintiff’s claims. The substance of guidance adopted by each federal agency under the authority

of Section 5 has no bearing on whether issuance of the threat of limited access to government

buildings and officials was unlawful.

***

For the reasons outline above, each of the government’s general arguments for dismissal,

whether construed to fall under Federal Rules of Civil Procedure 8, 12(b)(1), or 12(b)(6), fail to

withstand scrutiny. Moreover, as discussed next, each of Counts II through IX in plaintiff’s

Amended Complaint states a claim for relief, not only fully satisfying procedural rules requiring

the denial of the government’s motion to dismiss but also entitling plaintiff to summary judgment

in its favor.

B. Plaintiff is Entitled to Summary Judgment

The government denies that EO 14230 is designed to be “‘punitive’ or a ‘sanction’” and

defends the Order as falling “within the bounds of established executive authority,” Gov’t’s Opp’n

at 3, claiming that, here, “the Executive Branch [is] acting as contractor and employer, managing

who it does business with and how, based on what it believes to be in the public interest,” id. at 5-

6. See also TRO Hr’g Tr. at 44:3-6 (government counsel stating, “I don’t think I would use the

word ‘punitive.’ I would say have an impact and have caused an injury, certainly, to Perkins

Coie”); Mots. Hr’g Tr. at 29:10-11 (government counsel stating, about Section 2, “we view this as

not designed to punish. We view this as designed to fulfill the concerns that were laid out in

Section 1”). By defending the Order as merely an exercise of procurement power, as either a

contractor or employer, however, the government strains in two different directions, arguing, on

one hand, that plaintiff lacks standing by not alleging “that the government is currently contracting

50

for Plaintiff’s services, or that Plaintiff ever intends to bid for any government contract,” Gov’t’s

Mem. at 21; see supra Part III.A.4, and nevertheless, on the other hand, that EO 14230 is merely

“direct[ing] a review of Perkins to ensure that the Federal Government’s dealings with it are

consistent with the national security of the United States and other public interests,” Gov’t’s Opp’n

at 5. The fact is that the government has no relationship with Perkins Coie as either an employer

or contractor and the Firm’s “dealings” with the government are because of clients represented

effectively by Perkins Coie on matters that President Trump, his prior campaign or his current

Administration, have taken a contrary position, stretching back nearly a decade.

Regardless of the government’s strained legal position to avoid this obvious fact, the

government tries to dampen what it calls “all the furor generated in the press and elsewhere,”

Gov’t’s Opp’n at 5, and the “level of hysteria,” id. at 10, by denying that the Order “is the Executive

Branch . . . acting in its capacity as a sovereign to punish citizens for exercising their First

Amendment Rights,” id. at 5. To believe this explanation requires ignoring the past and current

factual context for, and the actual text and impact of, EO 14230, which targets plaintiff for adverse

agency action when plaintiff is neither employed by nor a contractor with the government, see,

e.g., Gov’t’s Mem. at 21 (arguing that no evidence in the record shows plaintiff is either employed

by or contracts with the government), and, instead, is a law firm representing some clients disliked

by the President, engaging in some litigation seeking results disliked by the President, and

operating its business, in part, in a manner disliked by the President.

In any event, the government is no mere “contractor and employer” and may not act without

regard to decades of binding precedent holding that the government’s exercise of power must

conform to the limits imposed by the Constitution. See, e.g., Dames & Moore, 453 U.S. at 661

(recognizing that, even when the President acts “in the field of international relations,” where he

51

has “plenary and exclusive power,” the President’s authority “must be exercised in subordination

to the applicable provisions of the Constitution” (citation omitted)). Constitutional limits apply,

even when, as here, the government defends its action as appropriate because of the government’s

role as a contractor and employer. See, e.g., O’Hare Truck Serv., Inc. v. City of Northlake, 518

U.S. 712, 714-15 (1996) (holding that the government, while acting as a contractor, may not

“retaliate[] against a contractor . . . for the exercise of rights of political association or the

expression of political allegiance”); Bd. of County Comm’rs v. Umbehr, 518 U.S. 668, 686 (1996)

(subject to certain limitations, recognizing “the right of independent government contractors not

to be terminated for exercising their First Amendment rights”); Rutan v. Republican Party of Ill.,

497 U.S. 62, 78 (1990) (holding that the government, while acting as an employer, may not

“condition[] hiring decisions on political belief and association,” except in narrow compelling

circumstances); Perry v. Sindermann, 408 U.S. 593, 597 (1972) (holding, in a case involving the

government acting as an employer, the government may not “deny a benefit to a person on a basis

that infringes his constitutionally protected interests—especially, his interest in freedom of

speech”).

Here, the Trump Administration’s blunt exercise of power in EO 14230 to target Perkins

Coie for adverse actions by every Federal agency violates the Constitution in multiple ways, as

detailed below by examining each of plaintiff’s claims.

1. EO 14230 Retaliates Against Plaintiff for First Amendment Protected

Activities, Including Political Viewpoint and Statements Favoring Diversity

and Inclusion.

“The First Amendment prohibits government from ‘abridging the freedom of speech, or of

the press; or the right of the people peaceably to assemble, and to petition the Government for a

redress of grievances.’” Ams. for Prosperity Found. v. Bonta, 594 U.S. 595, 605-06 (2021)

(quoting U.S. CONST. amend. I). As the Supreme Court has explained, the First Amendment

52

protects the right of “all persons . . . to think and speak as they wish, not as the government

demands.” 303 Creative, 600 U.S. at 603.

“One obvious implication” of these First Amendment protections is that government

officials may not “subject[] individuals to ‘retaliatory actions’ after the fact for having engaged in

protected speech.” Hous. Cmty. Coll. Sys., 595 U.S. at 474 (quoting Nieves, 587 U.S. at 398); see

also, e.g., Crawford-El v. Britton, 523 U.S. 574, 592 (1998) (“[T]he First Amendment bars

retaliation for protected speech.”). Such “‘[o]fficial reprisal for protected speech . . . ‘threatens to

inhibit exercise of the protected right.’” Hartman, 547 U.S. at 256 (quoting Crawford-El, 523

U.S. at 588 n.10). This prohibition also extends to retaliation against individuals for the specific

viewpoint expressed by their First Amendment protected activities, since the government may not

“use the power of the State to punish or suppress disfavored expression,” Vullo, 602 U.S. at 188

(quoting Rosenberger, 515 U.S. at 830), nor use threats of “‘legal sanctions and other means of

coercion . . . to achieve the suppression’ of disfavored speech,” id. at 189 (quoting Bantam Books,

372 U.S. at 67). Retaliation and threats of retaliation to effectuate viewpoint discrimination “is

uniquely harmful to a free and democratic society.” Id. at 187. As the D.C. Circuit has observed,

“[r]estrictions based on viewpoint are especially invidious,” since “[i]t is antithetical to a free

society for the government to give ‘one side of a debatable public question an advantage in

expressing its views to the people.’” Frederick Douglass Found., Inc. v. District of Columbia, 82

F.4th 1122, 1141 (D.C. Cir. 2023) (quoting First Nat’l Bank of Bos. v. Bellotti, 435 U.S. 765, 785

(1978)); see also Ateba v. Leavitt, 133 F.4th 114, 124 (D.C. Cir. 2025) (“Viewpoint discrimination

is an ‘egregious form of content discrimination,’ which occurs when a government regulation

‘targets not subject matter, but particular views taken by speakers on a subject.” (quoting

Rosenberger, 515 U.S. at 829)). Ultimately, punishing or denying a benefit to an individual on

53

the basis of “constitutionally protected speech or associations” violates the Constitution. Perry,

408 U.S. at 597; see also, e.g., Hous. Cmty. Coll. Sys., 595 U.S. at 474; Nieves, 587 U.S. at 398;

Crawford-El, 523 U.S. at 592.

In this case, plaintiff claims that EO 14230 targets the Firm for unconstitutional retaliation

based on two different types of viewpoints expressed by plaintiff in the exercise of First

Amendment protected activities. First, in Count V, plaintiff alleges that EO 14230 “single[s] out

and punish[es] Perkins Coie for its association with, and advocacy on behalf of, the President’s

political opponents in the 2016 and 2020 elections,” Am. Compl. ¶ 128, attributing those

viewpoints to plaintiff and “retaliat[ing] against the firm on that basis,” id. ¶ 129. Second, in Count

VII, plaintiff claims that EO 14230 unconstitutionally retaliates against plaintiff for “[s]tatements

in [f]avor of [d]iversity and [i]nclusion.” Id. at 37 (header of Count VII); see also id. ¶¶ 144-56.

To prevail on these claims, plaintiff must show that (1) the Firm “engaged in conduct

protected under the First Amendment”; (2) EO 14230 “took some retaliatory action sufficient to

deter a person of ordinary firmness in plaintiff’s position from speaking again”; and (3) there is “a

causal link” between the protected First Amendment activity and “the adverse action taken

against” the Firm. Aref v. Lynch, 833 F.3d 242, 258 (D.C. Cir. 2016) (citation omitted). Here, no

genuine dispute of material fact exists as to any of these three elements, and thus plaintiff is entitled

to summary judgment on Counts V and VII.

(a) First Element: Plaintiff Engaged in First Amendment Protected

Activity.

EO 14230 openly acknowledges that plaintiff engaged in speech and other activities

protected by the First Amendment. Section 1 of the Order, which sets out its “Purpose,” cites three

reasons for the enumerated action items in Sections 2 through 5 that federal agencies are ordered

to take against plaintiff: (1) the Firm’s representation of “Hillary Clinton” during the 2016

54

presidential election; (2) the Firm’s involvement in litigation against “election laws, including

those requiring voter identification”; and (3) the Firm’s alleged discrimination in “hiring and

promotion” and efforts to “purposefully hide the nature of” this alleged discrimination “through

deceiving language.” EO 14230 § 1, 90 Fed. Reg. at 11781. The associated fact sheet adds a

fourth: “Perkins Coie LLP has filed lawsuits against the Trump Administration,” which are also

described as “partisan lawsuits against the United States.” EO 14230 Fact Sheet. These four

reasons are the sole rationales provided for the issuance of EO 14230, see generally EO 14230, 90

Fed. Reg. at 11781-83; EO 14230 Fact Sheet, and each, on their face, implicate First Amendment

protected activities.

i. Plaintiff’s Representation of Clients

The first, second, and fourth reasons reference the Firm’s representation of clients, namely:

President Trump’s opponent in the 2016 presidential election, parties in election litigation, and

parties challenging Trump Administration actions. Well-settled law establishes that “advocacy by

. . . attorney[s] to the courts” falls within the category of “private . . . speech” protected by the First

Amendment, Legal Servs. Corp., 531 U.S. at 542-43; see also NAACP v. Button, 371 U.S. 415,

429 (1963) (“[T]he First Amendment . . . protects vigorous advocacy, certainly of lawful ends,

against governmental intrusion,” including litigation, which “is thus a form of political

expression.”), meaning that plaintiff’s representation of a political opponent of the current

President and involvement in election litigation and lawsuits against the Trump Administration

explicitly qualifies as core First Amendment speech. 27

27

Plaintiff’s involvement in litigation is also protected under the First Amendment right to petition the

government and thus retaliation on this basis also runs afoul of First Amendment protections, as discussed infra Part

III.B.5.

55

Moreover, as part of plaintiff’s involvement in election litigation, EO 14230 further states

that plaintiff “worked with” what is described as “activist donors,” specifically naming “George

Soros,” in bringing these cases. EO 14230 § 1, 90 Fed. Reg. at 11781. This relationship explicitly

invokes core First Amendment associational rights. See, e.g., Button, 371 U.S. at 430 (affirming

“the right ‘to engage in association for the advancement of beliefs and ideas’” (quoting Patterson,

357 at 460)). So, too, does plaintiff’s representation of and association with President Trump’s

former presidential opponent. See generally, e.g., Rutan, 497 U.S. at 64-65, 68-71 (explaining a

long line of Supreme Court cases protecting political association); id. at 69 (“Political belief and

association constitute the core of those activities protected by the First Amendment.” (alteration

accepted) (quoting Elrod v. Burns, 427 U.S. 347, 356 (1976) (plurality opinion))).

Both EO 14230 and the accompanying fact sheet additionally make clear that President

Trump and his administration disfavor the specific messages conveyed by plaintiff through

involvement in these activities. For instance, the Order expresses disapproval of the election-

related lawsuits litigated by plaintiff challenging actions supported by President Trump or his

campaign, EO 14230 § 1, 90 Fed. Reg. at 11781 (describing the challenged laws as “necessary”),

and with other lawsuits filed by plaintiff on behalf of its clients “against the Trump

Administration” and “against the United States,” EO 14230 Fact Sheet (emphasis supplied). The

Order also takes issue with plaintiff’s representation in the 2016 presidential election of President

Trump’s political opponent and, as part of that representation, some of plaintiff’s former

employees associated with an opposition research firm, Fusion GPS. See EO 14230 § 1, 90 Fed.

Reg. at 11781; see also Pl.’s SMF ¶ 125 (quoting President Trump, immediately before signing

EO 14230, criticizing plaintiff’s work “against a political opponent” (him) and stating that “it

should never be allowed to happen again”). Finally, the fact sheet disparages plaintiff as “partisan”

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three separate times, EO 14230 Fact Sheet (referring to “partisan lawsuits,” unsubstantiated

concerns about “partisan misuse” of information, and associating with “partisan actors who exploit

their influence”), making explicit that those in power disagree with the political and litigation

positions taken by clients of plaintiff.

ii. Plaintiff’s Statements about Diversity

As to the third reason—that plaintiff supposedly engages in unlawful discrimination—the

record also demonstrates that this claim refers to plaintiff’s First Amendment protected speech in

favor of diversity.

The government predicates the claim of discrimination on two items. First, the government

cites a 2023 lawsuit challenging plaintiff’s summer fellowship program for first-year law students.

Gov’t’s Mem. at 8 (citing Am. All. for Equal Rights v. Perkins Coie LLP, No. 3:23-cv-1877 (N.D.

Tex.)). Plaintiff has explained that, after explicitly affirming the inclusive nature of the fellowship

and confirming with the plaintiff in that lawsuit that the law student fellowships were open to all,

the lawsuit was voluntarily dismissed, in October 2023. Pl.’s SMF ¶¶ 22-23. Indeed, the

government concedes that plaintiff’s description of its fellowship program does “not contain

discriminatory requirements.” Gov’t’s Mem. at 8 (citing Lawson Decl., Ex. 12, Stip. of Dismissal

¶¶ 3-4, Am. All. for Equal Rights, ECF No. 31 (filed Oct. 11, 2023), ECF No. 142-2 at 230); see

also Gov’t’s Resp. to Pl.’s SMF at 2 (noting, in response to ¶¶ 22-23, that the government does

not dispute that plaintiff’s current fellowship program is open to all first-year law students).

Regardless of the merits of any claims asserted in the 2023 lawsuit or any alleged or even actual

illegality in the former version of the fellowship program, this referenced lawsuit provides no

support for the claim that plaintiff currently discriminates against any staff or applicants.

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The government’s second proffered reason for the claim that plaintiff “racially

discriminates,” EO 14230 § 1, 90 Fed. Reg. at 11781, is plaintiff’s 2019 announcement that the

firm had adopted the Mansfield Rule, Gov’t’s Mem. at 10. This evidence is similarly unavailing

to show the government had a non-speech basis for acting against plaintiff, for at least two reasons.

First, the government specifically cites only plaintiff’s “public[] announce[ment]” about adopting

the Mansfield Rule—not any evidence that plaintiff implemented the rule in any illegal, let alone

even suspect, manner. Id.; see also Gov’t’s Opp’n at 17-19. To the extent the government relies

only on plaintiff’s press release, the government thus explicitly acknowledges reacting only to

plaintiff’s speech. See also EEOC Letter at 1 (stating the letter was prompted only by “public

statements and court filings” made by plaintiff).

More generally, the Mansfield Rule expressly does not establish any hiring quotas or other

illegally discriminatory practices, requiring only that participating law firms consider attorneys

from diverse backgrounds for certain positions. See Pl.’s 2019 Mansfield Press Release. At the

motions hearing, government counsel acknowledged that “[t]he way Mansfield works as far as

doing the interviews maybe isn’t so problematic.” Mots. Hr’g Tr. at 68:17-18. While a scenario

might exist where a law firm impermissibly strays from those commitments, the government has

provided no evidence of any such deviation here, or any other evidence that plaintiff has engaged

in any activity violative of any anti-discrimination law. 28

28

Though conceding the use of the Mansfield Rule for interviews “isn’t so problematic,” Mots. Hr’g Tr. at

68:17-18, government counsel suggested the problem lies in the way the program “measur[es] their success,” by

“showing percentage increases” of qualified underrepresented talent in certain positions, which the government

assumes means the imposition of “targets” and “evaluating people on race, sex, and ethnic-based issues unrelated to

them as individuals,” id. at 68:19-23. This assumption about the metrics reported, however, presupposes that the

qualified underrepresented talent considered are given a positive preference when other explanations are just as

plausible for percentage increases of such talent. The principle underlying such programs is that negative biases

against qualified underrepresented lawyers, due to their race, sex, gender identity, disability or ethnicity, reduce their

likelihood of being selected as frequently to interview for positions for which they are qualified, but when firms

consider more underrepresented talent on their own individual merit and not disadvantaged for the traits “unrelated

to them as individuals,” id. at 68:23, firms tend to hire more of these individuals on their own merit. In other words,

58

Instead, the government’s briefing reveals the true motivation lurking behind the façade of

discrimination allegations: the administration’s disapproval of plaintiff’s speech in favor of

diversity. This revelation makes clear the pretextual nature of EO 14230’s cited reason regarding

plaintiff’s purported discrimination. For instance, the government points to the Firm’s statements

about efforts to “contribut[e] to the advancement of our historically underrepresented attorneys”

and success in hiring “new partners who are women or attorneys of color.” Gov’t’s Mem. at 10

(quoting Lawson Decl., Ex. 2, Perkins Coie LLP: 2023 Vault Law Firm Diversity Survey at 7, ECF

No. 143-2 at 10). Once again, however, the government provides no evidence to suggest that any

of these statements show any suspect or illegal actions by plaintiff.

Even more probative of the fact that plaintiff’s speech is at issue is that the government

argues that statements in the Amended Complaint “repeatedly assert[ing] [plaintiff’s] commitment

to diversity” and showing “no apparent intention of backing away” somehow support the

government actions targeting the Firm in the Order. Id. at 10-11 (citing Am. Compl. ¶¶ 45, 46,

146). This claim could only be true, however, if the actions taken in the Order were premised on

plaintiff’s statements about diversity, since public statements supporting diversity, standing alone,

as they do here, provide not even a scintilla of evidence of impropriety, let alone illegality. A fair

reading of the record, and taking the government at its word, requires finding that the justification

for EO 14230 stemming from plaintiff’s purported “racial discrimination” was motivated only by

plaintiff’s First Amendment protected speech in support of diversity.

the metrics might mean exactly the opposite of what the government assumes to be true, and exactly what the

government says it wants.

In any event, both parties agree that this Court need not rule on the constitutionality of the Mansfield Rule

to decide this case. Mots. Hr’g Tr. at 69:22-72:3 (government counsel acknowledging this point); id. at 103:25-

104:15 (plaintiff’s counsel acknowledging the same). The government’s mere assertions—just like the

government’s possibly erroneous assumptions about the Mansfield Rule—provide no evidence of any illegal or

discriminatory practice by plaintiff.

59

(b) Second Element: EO 14230 Takes Retaliatory Actions Sufficient

to Chill Speech.

The second requirement for a retaliation claim, that plaintiff show the actions taken against

the Firm were “sufficient to deter a person of ordinary firmness in plaintiff’s position from

speaking again,” Aref, 833 F.3d at 258, is satisfied by plaintiff’s showing of irreparable harm, and

further bolstered by the reactions of plaintiff’s peer law firms. See infra Part III.C.1 (describing

the significant loss of clients and revenue suffered by the Firm in the short time between the

issuance of EO 14230 and the TRO in this case, as well as the potential for additional severe losses

were the temporary injunction order lifted); see also TRO Hr’g Tr. at 44:3-6 (government counsel

conceding that sections of EO 14230 “have an impact and have caused an injury, certainly, to

Perkins Coie”).

Providing further support for this element are the reactions of other law firms to EO 14230

and similar Executive Orders. Eight days after issuing EO 14230 against plaintiff, on March 14,

2025, President Trump issued a similar Executive Order against the law firm Paul, Weiss, Rifkind,

Wharton & Garrison LLP. Manning Decl., Ex. 49, Exec. Order 14237 (“Paul, Weiss EO”), 90

Fed. Reg. 13039 (Mar. 20, 2025), ECF No. 39-4 at 588. The Paul, Weiss EO contained six

sections, directing that the same actions be taken against Paul, Weiss as EO 14230 directs against

plaintiff, compare Paul, Weiss EO, 90 Fed. Reg 13039-40, with EO 14230, 90 Fed. Reg. at 11781-

82, with one exception that Section 4 of the Paul, Weiss EO stated only that “[n]othing in this

order shall be construed to limit the action authorized by section 4 of [EO] 14230 of March 6, 2025

(Addressing Risks from Perkins Coie LLP),” Paul, Weiss EO § 4, 90 Fed. Reg. at 13040. Yet, the

Paul, Weiss EO was revoked only seven days after its issuance when President Trump reached a

“deal” with Paul, Weiss, under which agreement that law firm agreed to:

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[A]dopt[] a policy of political neutrality with respect to client selection and

attorney hiring; tak[e] on a wide range of pro bono matters representing the

full political spectrum; commit[] to merit-based hiring, promotion, and

retention . . .; dedicat[e] the equivalent of $40 million in pro bono legal

services during [President Trump’s] term in office . . .; and other similar

initiatives.

Manning Decl., Ex. 50, Exec. Order 14244 (“Paul, Weiss Revocation Order”) § 1, 90 Fed. Reg.

13685, 13685 (Mar. 26, 2025), ECF No. 39-4 at 593. The fact that Paul, Weiss quickly negotiated

a deal, including an agreement to provide “the equivalent of $40 million” in free legal work, rather

than face the potential injuries of the similar Executive Order targeting that firm, see Paul, Weiss

Revocation Order, 90 Fed. Reg. at 13685, demonstrates the coercive power of such targeting by

the Trump Administration.

This conclusion is further confirmed by the reaction of additional peer law firms that chose

to negotiate deals with the Trump White House to avoid being targeted by similar Executive

Orders. See Manning Decl., Ex. 64, ECF 39-4 at 733 (President Trump announcing a deal with

the law firm Skadden, Arps, Slate, Meagher & Flom LLP on March 28, 2025, after that law firm

“engaged proactively with the President and his team” to negotiate a deal though no Executive

Order had been issued against that law firm); id., Ex. 59, ECF No. 39-4 at 721-22 (President Trump

announcing a similar deal with the law firm Willkie Farr & Gallagher LLP on April 1, 2025, before

an Executive Order had been issued against that firm).

President Trump referred to these deals being cut with law firms, in a speech on April 8,

2025, stating: “Have you noticed that lots of law firms have been signing up with Trump? $100

million, another $100 million, for damages that they’ve done. But they give you $100 million and

then they announce, ‘We have done nothing wrong.’ And I agree, they’ve done nothing wrong.

But what the hell, they’ve given me a lot of money considering they’ve done nothing wrong. And

we’ll use some of those people, some of those great firms, and they are great firms too—they just

61

had a bad moment.” Pl.’s Reply, Ex. 1, Reply Decl. of Christopher N. Manning, Partner, Williams

& Connolly (“2nd Manning Decl.”), Ex. 1 at 25:57-26:30, ECF No. 148-1 at 4.

The Trump White House is keeping track of the growing value in free legal work being

promised by the law firms making the deals, as indicated by what occurred immediately after

President Trump signed a similar Executive Order as EO 14230 targeting the law firm Susman

Godfrey LLP, on April 9, 2025. Pl.’s Opp’n, Ex. 1, Decl. of Ryan Scarborough, Partner, Williams

& Connolly (“Scarborough Decl.”), Ex. 2, Exec. Order 14263 (“Susman EO”), 90 Fed. Reg. 15615

(Apr. 15, 2025), ECF No. 142-1 at 5. President Trump used the occasion to recount that the

administration had “signed with many law firms, the ones that we thought were inappropriate,”

and stated that “they went for some pretty big numbers.” Scarborough Decl., Ex. 1 (“Susman EO

Remarks”) at 16:02-16:25, ECF No. 142-1 at 3. President Trump then asked Deputy White House

Chief of Staff Steven Miller, “what’s the total right now Steve?” and Miller responded, “getting to

close to, probably, six, 700 million now I would think. Multiple at 100 million, some at 125

million. So, the numbers are adding up. We’re going to be close to a billion soon.” Id. at 16:25-

16:40. As to the Susman EO he had just signed, President Trump then said, “this one, we’re just

starting the process with this one.” Id. at 16:55-17:00. 29 Whether President Trump’s focus on

“the process” refers to enforcement of the Susman EO or that this Order was the opening gambit—

akin to the Paul, Weiss EO followed by the Paul, Weiss Revocation Order—for deal negotiations,

is unclear.

29

For context, the Deputy White House Chief of Staff’s reference to getting “close to a billion soon” may

include the five law firm deals announced by the White House just two days later, where each firm promised either

$100 million or $125 million in free legal work. See, e.g., Eric Tucker, Trump Reaches Deals with 5 Law Firms,

Allowing Them to Avoid Prospect of Punishing Executive Orders, Associated Press (Apr. 11, 2025),

https://apnews.com/article/trump-law-firms-executive-order-fe8f38a61cf77c5bb6add1315f5f96f1.

62

What is clear is that the Trump White House has publicly touted the negotiated deals

reached with various law firms, and equally clear is that those deal-making firms have been spared,

or had revoked, an Executive Order targeting them. That is the one clear benefit of the deal to the

law firms, since other than the monetary value of the promised free legal work, the precise terms

of each deal are somewhat fuzzy. The government, when asked, was unable to fill in basic details,

for example, about whether the deal terms were written down or otherwise memorialized, the

duration of the deals, or how recipients of the promised free legal work would be identified. Mots.

Hr’g Tr. at 8:23-9:13 (government counsel saying “I can’t say anything more than . . . what I have

read in the papers” about the law firm deals); id. at 9:19-10:3 (government counsel stating “I don’t

have the answers” about duration of these deals); id. at 10:24-11:7, 11:18-22 (government counsel

saying “I don’t have any insight on what, if any, mechanics are in play” to determine recipients of

free legal work under the deals and repeating “I just don’t have that insight”).

Nevertheless, each additional deal provides further evidence to satisfy the second element

of plaintiff’s retaliation claim, given that each of these firms, presumably possessing “ordinary

firmness,” sought successfully to avoid being targeted by similar Executive branch actions, with

each law firm committing the equivalent of $100 million or more as part of the price to do so. See

also Mots. Hr’g Tr. at 86:14-18 (plaintiff’s counsel noting that these firms have “some of the most

talented lawyers in the world with the most resources, and they chose silence”); Br. of Amici

Curiae 504 Law Firms in Supp. of Pl.’s MSJ ¶¶ 1-2, ECF No. 78 (noting that EO 14230 and others

like it “seek to cow every other firm . . . into submission” and explaining the “looming threat” that

“any . . . representation challenging actions of the current administration (or even causes it

disfavors) now brings with it the risk of devastating retaliation”); Br. of Amici Curiae Litigation

63

Firms in Supp. of Pl.’s MSJ at 1, ECF No. 94 (“Lawyers cannot fearlessly represent causes or

clients . . . if they fear government reprisal.”).

(c) Third Element: The Retaliation is Causally Linked to Plaintiff’s

First Amendment Protected Activity.

Finally, the record is clear that EO 14230 is motivated by retaliation for plaintiff’s First

Amendment protected activity. Resisting this conclusion, the government protests that EO 14230

does not retaliate against plaintiff for First Amendment activity but instead takes action “based on

what it believes to be in the public interest.” Gov’t’s Opp’n at 6. Here, however, these arguments

are merely two sides of the same coin. The four reasons provided by the Order to justify targeting

plaintiff all refer to President Trump’s objections to plaintiff’s protected speech and associations.

Neither the Order nor the accompanying fact sheet provide any basis to find that plaintiff threatens

the public interest or national interest other than the stated disagreements with plaintiff’s First

Amendment protected activity. See generally EO 14230, 90 Fed. Reg. at 11781 (providing only

the reasons already discussed to justify the Order); EO 14230 Fact Sheet (same). That plaintiff’s

protected activities are the only reasons provided by the Order itself to justify the actions directed

is strong evidence that the Order retaliates against plaintiff for engaging in those protected

activities. Analysis of each section of the Order, as well as the context surrounding its issuance,

only adds reasons to confirm this conclusion and further shows that the legal infirmity of retaliation

permeates every section and sentence of EO 14230.

i. EO 14230’s Section 2

The record demonstrates that retaliation is the only plausible motive for the “Security

Clearance Review” ordered in Section 2 in two additional ways. First, to the extent the government

argues the security clearance directives were motivated by alleged national security concerns

stemming from contacts with Fusion GPS in 2016, see Gov’t’s Opp’n at 9, plaintiff has no current

64

employee who was involved in that engagement, and none of the attorneys involved have been

employed by plaintiff for at least three years, Pl.’s SMF ¶ 75; Gov’t’s Resp. to Pl.’s SMF at 3 (not

disputing ¶ 75). The government cannot credibly claim that targeting plaintiff’s current employees

would remedy any national security concerns related to Fusion GPS when none of those employees

were involved with Fusion GPS.

This is particularly true in light of the undisputed record in this case, which establishes, in

plaintiff’s expert report from J. William Leonard, who worked in personnel security at the

Department of Defense from 1973 to 2002, including serving as the Deputy Assistant Secretary of

Defense responsible for security and information operations, and Principal Director in that same

office, that “a hallmark of the [security clearance review] process . . . is that it is an individualized

one.” Pl.’s MSJ, Ex. 8, Expert Report of J. William Leonard, former Deputy Assistant Secretary

of Defense and Dep’t of Defense personnel security officer (“Leonard Rep.”) ¶¶ 2-3, 30, ECF No.

39-8 (emphasis supplied). Mr. Leonard attests that “the granting, suspending, and revoking of

security clearances is a highly individualized process that involves a close and detailed factual

analysis of the individual in question,” id. ¶ 35 (emphasis supplied), where “Person A is never held

accountable for the conduct of Person B, let alone are Persons 1 through 2,500 held accountable

for the conduct of formerly-associated Person 2,501,” id. ¶ 44. Yet, accepting the government’s

proffered reason—plaintiff’s previous dealings with Fusion GPS—as true, holding all of plaintiff’s

current employees responsible for actions taken by individuals who have not been associated with

the Firm for at least three years does exactly that. See Pl.’s SMF ¶¶ 71, 75 (Elias left the Firm in

2021); id. ¶ 76 (same with Sussmann); see also id. ¶ 95 (stating that no Perkins Coie employee

who held a security clearance at the time EO 14230 was issued “had any involvement in the Fusion

GPS matter” (citing 2nd Burman Decl. ¶ 41)).

65

The conclusion that Section 2 engages in this type of punishment-by-association is further

strengthened by President Trump’s admission, in a post on Truth Social on April 23, 2025, the day

the parties appeared for a motions hearing in this case, that EO 14230’s actions against plaintiff

were motivated by “the conduct of a specific member of this firm.” @RealDonaldTrump, Truth

Social (Apr. 23, 2025, 9:35 AM),

https://truthsocial.com/@realDonaldTrump/posts/114387538306195784 [hereinafter Trump

April 23, 2025, Post]. Since this statement confirms that the Order targeted the entire Firm because

the President disliked the purported actions of one person, and thus strongly suggests that no firm-

wide national security concern exists, it points strongly to retaliation as the motivation for EO

14230, rather than any legitimate concerns about the Firm or its employees writ large.

Second, and tellingly, the Paul, Weiss EO contained a virtually identical security clearance

review provision to the one at issue in this case. Compare EO 14230 § 2, 90 Fed. Reg. at 11781,

with Paul, Weiss EO § 2, 90 Fed. Reg. at 13039. As discussed, see supra Part III.B.1(b), the Paul,

Weiss EO was revoked only seven days after its issuance when President Trump reached a “deal”

with that firm. See generally Paul, Weiss Revocation Order, 90 Fed. Reg. 13685. While the Paul,

Weiss Revocation Order summarized that firm’s agreement to, inter alia, “adopt[] a policy of

political neutrality with respect to client selection and attorney hiring; tak[e] on a wide range of

pro bono matters representing the full political spectrum; commit[] to merit-based hiring,

promotion, and retention . . .; dedicat[e] the equivalent of $40 million in pro bono legal services

during [President Trump’s] term in office . . .; and other similar initiatives,” none of these agreed-

upon policy or practice changes appear to explain or address how any national security concerns

sufficient to warrant the Paul, Weiss EO could have changed so rapidly. Id. § 1, 90 Fed. Reg. at

13685. The speed of the reversal and the rationale provided in the Paul, Weiss Revocation Order,

66

which focused only on agreements to advance policy initiatives of the Trump Administration, see

id., further support the conclusion that national security considerations are not a plausible

explanation for Section 2.

ii. EO 14230’s Section 3

As to Section 3 of the Order, the fact sheet says it all: plaintiff and its clients with

government contracts are targeted because of plaintiff’s “partisan lawsuits.” EO14230 Fact Sheet.

The retaliation for core First Amendment speech, see Legal Servs. Corp., 531 U.S. at 542-43, and

the viewpoint expressed by that advocacy, could not be stated more explicitly.

The government tries to defend Section 3 by insisting that plaintiff is acting as a “contractor

[in] pressing these claims” challenging this part of the Order, and invoking Board of County

Commissioners v. Umbehr, 518 U.S. 668, 671 (1996). Gov’t’s Mem. at 22-23. This defense of

Section 3 is doomed for two obvious reasons. First, plaintiff is not a government contractor, as the

government concedes. See Gov’t’s Mem. at 21 (“Plaintiff never alleges that the government is

currently contracting for Plaintiff’s services, or that Plaintiff ever intends to bid for any government

contract.”).

Second, given that plaintiff is not a government contractor, and that plaintiff advances the

First Amendment retaliation claims only as to itself and not on behalf of any of plaintiff’s clients,

see Am. Compl. ¶¶ 126-35 (claiming, in Count V, retaliation only against Perkins Coie); id. ¶¶

144-56 (same in Count VII), the Supreme Court case relied upon by the government is simply

inapplicable here. Umbehr involved a claim of unlawful retaliation brought

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