Episode 51: Perkins Coie LLP v. Department of Justice

Perkins Coie LLP v. Department of Justice, argued before Chief Judge Sri Srinivasan, Judge Cornelia T.L. Pillard, and Judge
Neomi Rao of the United States Court of Appeals for the D.C. Circuit on May 14, 2026. Argued by Paul Clement (on behalf of the Law Firm Appellees), Abbe Lowell (on behalf of Appellee Mark Zaid), and Abhishek Kambli (on behalf of the federal government).

Case Summary, From the Brief of Appellee Perkins Coie LLP:  

One year ago, the President did something no other president had done before: issue an executive order declaring a law firm whose clients and representations he dislikes “dishonest and dangerous” and deploying the levers of federal power to try to put the firm out of business. That was a perilous moment for appellee Perkins, the legal profession, and the rule of law. Nine law firms, cowed by the threat of firm-ending sanctions, “settled” with the President. But Perkins, followed by Jenner, WilmerHale, and Susman, sued to defend themselves and their clients. Four different district judges recognized the President’s executive orders for what they are: shocking abuses of power that trample the constitutional rights of the law firms and their clients. This Court should recognize the same.

The government cannot “use the power of the State to punish or suppress disfavored expression.” Yet here, the President did not hide his intent to punish Perkins for its expression and that of its clients. He openly declared that he targeted Perkins because it represented his “failed” opponent in the 2016 election, challenged election laws alongside so-called “activist donors,” and brought purportedly “partisan lawsuits,” including “against the Trump Administration.” The President designed the Order to do more than just damage Perkins; he intended to intimidate the bar into submission.

Case Summary, From the Brief of Appellee Mark Zaid: 

The government cannot “use the power of the State to punish or suppress disfavored expression.”
Nat’l Rifle Ass’n of Am. v. Vullo. This case concerns an unconstitutional policy enacted to do just that. Shortly after taking office, the President issued a memorandum (the Presidential Memorandum) targeting the security clearances of a sprawling group of his perceived enemies, their lawyers, and their family members. As interpreted by the relevant agencies, the Presidential Memorandum constituted a directive to disregard then-existing procedures and institute a blanket revocation of the security clearances of those it named. Appellant Mark S. Zaid, an attorney who has represented government whistleblowers, is among those whose clearances were revoked.

As the district court noted, “the government does not argue the decision to summarily revoke Zaid’s clearance was based on anything other than his prior representations of clients in matters adverse to the government.” And on appeal, the government does not dispute the district court’s finding that “the government has not conducted any individualized assessment of Zaid’s eligibility for security clearance.”

Rather than contesting whether they retaliated against Mr. Zaid or deprived him of the processes to which he was entitled under the applicable regulations, Appellants double down on the extraordinary position that their unlawful actions are entirely insulated from judicial review.

Statement of Issues, From the Brief of Appellee Perkins Coie LLP:  

• Whether the district court properly granted summary judgment on the grounds that the Order:
  • • violates the First Amendment by retaliating for protected activity, discriminating based on viewpoint, and burdening the right to association;
    • deprives Perkins of due process and is impermissibly vague;
    • violates Perkins’ clients’ Fifth and Sixth Amendment rights to counsel; and
    • violates the Fifth Amendment’s equal-protection component.
• Whether Perkins is entitled to summary judgment on the additional ground (raised but not reached below) that Sections 1, 3, and 5 violate the separation of powers.

Statement of Issues, From the Brief of Appellee Mark Zaid:  

• Whether a court may review a policy providing for the revocation of a group of security clearances without process or individualized review.
• Whether the district court abused its discretion in granting a preliminary injunction.

**Note that the Court consolidated three other cases into the Perkins Coie case:
Jenner & Block LLP v. Department of Justice, et al.

Wilmer Cutler Pickering Hale and Dorr LLP v. Executive Office of the President, et al.
Susman Godfrey LLP v. Executive Office of the President, et al. 

Resources:    

• Brief of Appellee Perkins Coie LLP
• Brief for the Government Appellants
• CourtListener Docket (includes all filings for the law firms’ cases)
• Brief of Appellee Mark Zaid
• Brief for the Government Appellants
• CourtListener Docket (includes all filings in the appeal of Mark Zaid v. Executive Office of the President)

 Listen to the argument here:    

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