By Mike Scarcella
WASHINGTON (Reuters) -President Donald Trump’s executive orders terminating security clearances and taking other actions against two prominent law firms may violate constitutional protections and represent exceptional acts of retribution against lawyers who have crossed him in the past, according to legal experts.
The two firms targeted by the Republican president have represented Trump adversaries. Perkins Coie represented the campaign of 2016 Democratic presidential nominee Hillary Clinton, who Trump defeated in his first presidential run. Covington currently represents Jack Smith, the special counsel appointed during Democratic former President Joe Biden’s administration who brought criminal charges against Trump in two cases.
Legal experts interviewed by Reuters said the manner in which Trump targeted the firms could run afoul of the U.S. Constitution’s First Amendment protections against government abridgment of speech and Fifth Amendment guarantee of due process – a requirement for the government to use a fair legal process.
Trump on Thursday directed Attorney General Pam Bondi, Director of National Intelligence Tulsi Gabbard and all U.S. agency chiefs to restrict access by lawyers at Perkins Coie, a firm founded in Seattle, to federal buildings and end their security clearances.
In his separate executive orders concerning the firms, Trump ordered reviews intended to end contracts they currently hold with various federal agencies. Trump also initiated a review intended to end the government contracts of Perkins Coie clients.
Trump’s February 25 executive order targeting Washington, D.C.-based Covington revoked security clearances for two lawyers who advised Smith rather than the clearances for all the firm’s attorneys.
Security clearances give individuals access to classified information. The U.S. government has broad authority to grant and rescind such clearances and to control federal contracts for reasons of economic policy, according to legal experts.
To comply with the Constitution’s due process mandate, the order against Perkins Coie would have needed to give the firm notice and opportunity to challenge the claims, according to University of Toledo College of Law professor Evan Zoldan.
Trump’s order accused Perkins Coie of “dishonest and dangerous activity.” It said Perkins Coie “racially discriminates” in its hiring – referring to the firm’s efforts toward hiring a diverse workforce in terms of race and other traits. Trump and his allies have portrayed such policies as discriminatory against white people. The order also criticized the firm’s work representing Clinton’s campaign.
In addition, the order called on government officials to investigate more “large, influential or industry leading law firms” over their compliance with laws against racial discrimination, another reference to diversity policies.
Perkins Coie in a statement said Trump’s order is “patently unlawful, and we intend to challenge it.”
“For more than 100 years, Covington has represented clients facing government investigations, consistent with the best traditions of the legal profession,” Covington said in a February 25 statement.
“We recently agreed to represent Jack Smith when it became apparent that he would become a subject of a government investigation,” Covington added.
Smith oversaw two federal cases against Trump – one involving his efforts to overturn his 2020 election loss and the other involving sensitive government documents he kept after leaving office in 2021. Trump pleaded not guilty in both. Neither went to trial.
Trump has called Smith “deranged” and has accused him of taking part in a politically motivated “witch hunt.” Trump faced criminal charges in two other cases as well. In the only one of the four criminal cases to go to trial, Trump was convicted in New York state court last year of 34 felony charges involving hush money paid to a porn star. Trump has vowed to hold “accountable” the officials responsible for the criminal cases.
‘HARD TO SEE’
University of Colorado Law School professor Maryam Jamshidi said challenging the termination of security clearances is legally difficult, but that it is “hard to see what constitutional authority would authorize” restricting Perkins Coie’s government contracting work.
Zoldan said Trump’s allegations against Perkins Coie could damage the firm in a way that the Supreme Court has ruled requires “some official proceeding to allow the person impugned to challenge these accusations.”
White House spokesperson Harrison Fields said on Friday that Trump “is fulfilling his commitment to end the weaponization of government and protect the nation from partisan actors who exploit their influence.”
Federal databases show that Perkins Coie and Covington have held contracts with various federal agencies and currently represent companies that contract with federal agencies.
Perkins Coie’s federal contracting clients have included Microsoft, Northrop Grumman and Boeing, according to its website, and it advertises that it has security clearances that allow it to represent companies with sensitive government business.
Microsoft declined to comment. The other companies did not immediately respond to requests for comment.
‘PIECE OF THEIR LIVELIHOOD’
University of Pennsylvania law school professor Claire Finkelstein said the reliance of lawyers on security clearances to access information and serve clients can be considered a part of their practice of law.
“By removing these security clearances, they have removed a piece of their livelihood, and they’ve done that without due process of law,” Finkelstein said.
Stanford Law School professor Mark Lemley said Trump’s targeting of Covington and Perkins Coie based on clients they represented raises concerns under the First Amendment’s free speech protections, calling it a potential example of “blatant viewpoint discrimination.”
Legal scholars said that any legal challenge against the orders could be messy and protracted, especially given their unusual nature. They said they could not cite other examples of a U.S. president taking official action against a law firm over its representation of a client.
Trump “swore up and down that he’d seek ‘retribution’ against his political opponents,” said UCLA School of Law professor Jon Michaels, adding that the president’s actions show disregard for the rule of law.
Covington and Perkins Coie are among nearly a dozen major U.S. law firms representing clients in lawsuits against the Trump administration, challenging policies related to immigration, federal spending cuts and other issues.
Government records show that some other firms involved in the lawsuits also have been federal contractors, such as Arnold & Porter, Cleary Gottlieb and WilmerHale. Arnold & Porter declined to comment and the other two firms did not immediately respond to requests for comment.
Groups advocating for the interest of lawyers said this week that Trump’s actions could deter law firms from taking clients whose interests conflict with his.
American Bar Association President William Bay said in a statement that clients have a right to access lawyers without government interference.
“The government has decided to punish two prominent law firms because they represent parties that the administration does not like,” Bay said.
(Reporting by Mike Scarcella in Washington; Editing by Will Dunham and David Bario)
