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The Department of Justice is attempting to revive its court battle with four law firms over punitive executive orders against them issued by Donald Trump last year, reversing a decision just one day earlier to end the fight.
The US government on Tuesday filed a motion to withdraw a court filing it had made on Monday evening in which it sought to drop out of a legal battle with Jenner & Block, Perkins Coie, WilmerHale and Susman Godfrey. The government’s filing did not provide a rationale for its about-face to the court.
All four firms have already won rulings from lower courts in cases where they challenged the US president’s decision in the early days of his second term to crack down on their business. That crackdown involved issuing executive orders containing punitive measures such as revoking lawyers’ security clearances.
In a head-spinning sequence of events, the government first said it would appeal against those lower court rulings then said on Monday that it would drop those appeals, before saying on Tuesday that it does not want to drop them.
Its surprising reversal injects a fresh dose of unpredictability to what has been a fraught legal saga over Trump’s executive orders, which detractors argued violated constitutional protections including free speech.
Trump last year issued executive orders targeting a series of firms as part of a broader attack against perceived opponents in Big Law, including groups that employed lawyers who worked on investigations targeting him during his first presidential term.
Some large law firms — including Paul Weiss, Skadden and Latham & Watkins — struck deals with the White House when targeted by Trump or pre-emptively. The agreements, which some Democratic lawmakers warned could be illegal, typically included pledging pro bono work for causes the administration supports.
The law firms have not yet been given an explanation for the rapid swings in the government’s position, one person with knowledge of the matter said. The person added that some lawyers at the targeted firms were speculating that Trump or those close to him had been embarrassed by media coverage of the decision on Monday to back down. They said that the White House would prefer for the government to fight in court, even if that might mean a defeat, rather than to be seen as giving up.
“Hours after asking the court to dismiss its appeal, the Department of Justice has abruptly reversed course and moved to continue its defence of the unconstitutional executive orders,” Perkins Coie said. “It offered no explanation to either the parties or the court for its reversal. We remain committed to defending our firm, our people and our clients”.
Susman Godfrey said the government had “reversed course” after having given up on Monday. “Regardless, Susman Godfrey will defend itself and the rule of law — without equivocation,” it said.
WilmerHale said it was “confident in our legal position and will continue to defend our clients and our firm”.
Jenner & Block did not immediately comment. The White House referred questions to the DoJ, which declined to comment.
In court filings, the law firms opposed what they described as “the government’s unexplained request to withdraw yesterday’s [Monday’s] voluntary dismissal, to which all parties had agreed”, adding: “Under no circumstances should the government’s unexplained about-face provide a basis for an extension of its brief.”
The government noted that the court had not yet granted its motion to dismiss.
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