Susman Godrey Ruling: The Most Recent Loss in the Administration's War on Big Law

President Donald Trump suffered a fourth legal loss in his campaign against a group of prominent law firms this Friday before the United States District Court for the District of Columbia. On Friday, Judge Loren L. AliKhan permanently enjoined Executive Order 14263, which limited Susman Godfrey, LLP’s ability to contract with the federal government and obtain security clearances. This Executive Order was one of seven orders signed by President Trump targeting large law firms.

Executive Order 14263 accused Susman, a law firm based in New York, of “fund[ing] groups that engage in dangerous efforts to undermine the effectiveness of the United States military through the injection of political and radical ideology,” a potential reference to its donations to GLBTQ Legal Advocates and Defenders (GLAD), and “engag[ing] in unlawful discrimination” through its diversity, equity and inclusion (DEI) initiatives. Susman suggested to the district court that it was targeted by the Trump administration because of its representation of Dominion Voting Systems and state election officials in a defamation suit against Fox News. Susman secured a $787 million settlement for its clients, which Fox News had targeted with conspiracy theories related to the 2020 presidential election.

The Executive Order “goes beyond violating the Constitution and the laws of the United States,” Judge AliKhan ruled. “The Order threatens the independence of the bar—a necessity for the rule of law.” Therefore, she concluded, a permanent injunction was required to protect the public interest and prevent Susman from sustaining economic harm as well as harm to its First Amendment rights. In the same decision, Judge AliKhan denied the government’s motion to dismiss Susman’s complaint, granted Susman’s motion for summary judgment, and awarded declaratory relief.

In a statement posted to its website, Susman called the decision “a resounding victory for the right of every American to be represented by legal counsel without fear of retaliation.” White House deputy press secretary Harrison Fields commented that the issuance of security clearances is “a sensitive judgment call entrusted to the President” which “falls well outside the judiciary’s authority.” It is unclear whether the administration intends to appeal the decision.

Judge AliKhan joins three other federal judges in granting injunctive relief to law firms targeted by President Trump’s executive orders. As she noted in her decision, “every court to have considered a challenge to one of these orders has found grave constitutional violations and permanently enjoined enforcement of the order in full,” citing recent wins by Perkins Coie LLP, Jenner & Block LLP and Wilmer Cutler Picking Hale & Dorr LLP in federal district court in the District of Columbia.

The fight for these firms is not over, however. On Monday, the Department of Justice announced its intent to appeal the United States District Court for the District of Columbia’s May 2 ruling in favor of Perkins Coie, which granted the firm’s motion for summary judgment and permanently enjoined the government’s actions against it. Perkins Coie responded to the Department’s filing, stating, “We look forward to presenting our case to the D.C. Circuit and remain committed to ensuring that the unconstitutional executive order targeting our firm is never enforced.”

Not every firm targeted by the Trump administration has fought back through the courts—some have reached settlements with the administration, prompting harsh backlash and a wave of high-profile resignations. The first large law firm to settle was Paul, Weiss, Rifkind, Wharton & Garrison, which agreed to abandon its DEI policies and provide $40 million of pro bono legal services supporting Trump administration goals on March 20, six days after President Trump issued an executive order aimed at the firm. President Trump promptly rescinded his executive order targeting Paul Weiss.

At least eight other law firms reached similar settlements, including firms that had not been named in an executive order, such as Skadden, Arps, Slate, Meagher & Flom LLP ($100 million of pro bono services); Wilkie Farr & Gallagher LLP ($100 million of pro bono services); Milbank LLP ($100 million of pro bono services); Kirkland & Ellis LLP ($125 million of pro bono services); and Latham & Watkins LLP ($125 million of pro bono services). The majority of these settlements also included revocation of the firms’ DEI programs.

While Susman and Perkins celebrated their wins and prepared for the next stage of litigation, the American Bar Administration has entered the fray, filing a lawsuit in the United States District for the District of Columbia against the federal government, including more than two dozen federal departments and agencies, which alleges that the Trump administration’s executive orders constitute a “deliberate policy designed to intimidate and coerce law firms and lawyers to refrain from challenging the president or his administration in court, or from even speaking publicly in support of policies or causes that the president does not like.” The ABA alleges that these orders violate the First Amendment’s prohibition of viewpoint discrimination and protection of the rights of private association and petition of grievances. Susman Godfrey represents the ABA in its suit against the government.