Susman Godfrey has become the latest law firm to win a permanent injunction against a Trump administration executive order that threatened to cut off the firm’s access to the federal government.
Susman’s victory, on June 27 in a Washington, D.C., federal court, brings the official tally to 4-0 for law firms who’ve fought back against White House efforts to punish them for representing clients who opposed Trump and his allies. Along with Susman, Perkins Coie, WilmerHale and Jenner & Block have also won permanent injunctions against the administration.
Yet those wins come after Trump extracted settlements from several other major law firms worth hundreds of millions of dollars in pro bono work. It also came on the same day the U.S. Supreme Court handed the administration a major victory that pushed back against nationwide injunctions issued by lower court judges.
Whether that decision will have an impact on any future law firm-related cases remains to be seen. But it may have been a confidence booster for the Trump administration. Just a few days after the high court’s decision, the Department of Justice said it would appeal the May 2 permanent injunction won by Perkins Coie.
Susman Targeted
On April 9, President Trump issued an executive order targeting Susman Godfrey and its employees. As in the previous orders targeting Perkins Coie, WilmerHale and Jenner & Block, Trump barred federal officials from engaging with Susman Godfrey or hiring any of its employees, ordered agency heads to end contracts with businesses that use Susman, revoked security clearances held by Susman’s lawyers and staff and blocked the firm’s employees from accessing federal buildings.
“Susman spearheads efforts to weaponize the American legal system and degrade the quality of American elections,” the order said. And Trump accused the firm of funding groups that “engage in dangerous efforts to undermine the effectiveness of the United States military through the injection of political and radical ideology, and it supports efforts to discriminate on the basis of race.”
While Trump’s order did not explicitly mention the case, the order has been described as punishment for Susman’s role as counsel on behalf of Dominion Voting Systems in its defamation suit against Fox News following the 2020 election. The firm’s lawyers negotiated a $787.5 million settlement in 2023 over the network’s false claims that Dominion’s voting machines helped Joe Biden win the presidency. The order also took aim at the firm for donating to an LGBTQ+ rights group and for providing a cash prize and mentoring to students of color.
A 10-Count Complaint
Two days after the executive order, Susman filed a 10-count complaint challenging the order on free speech and due process grounds and arguing Trump had exceeded his constitutional authority.
Specifically, the firm said Trump had ignored the First Amendment by retaliating and discriminating against it for protected speech and viewpoints, interfering with the firm’s rights of free association and to petition the government and placing unconstitutional conditions on government contracts. The firm also contended that Trump violated the Fifth Amendment’s due process, right-to-counsel and equal protection guarantees, as well as the separation of powers outlined in Article II.
The firm initially won a temporary restraining order on April 15, and asked the court to make the order permanent. The government moved to dismiss Susman’s claims. Twenty-one amicus briefs—signed onto by hundreds of law firms, law professors and students, and former judges, legal industry groups, civil rights organizations and freedom-of-speech advocates—were filed on Susman’s behalf. And the court heard arguments on both motions on May 8.
‘Grave Constitutional Violations’
On June 27, Judge Loren Alikhan of the U.S. District Court for the District of Columbia, in a 53-page opinion, found for Susman on each of its 10 counts.
“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,” Alikhan wrote. “Today, this court follows suit, concluding that the order targeting Susman violates the U.S. Constitution and must be permanently enjoined.”
Appointed to the federal bench in 2023, Alikhan is a former Big Law lawyer at O’Melveny & Myers and one-time D.C. solicitor general and local court of appeals judge. In her opinion, she took the government to task for violating the Constitution, and for technical issues as well. She criticized the government’s “peculiar approach” to its motion for dismissal, which appeared to ignore the Federal Rules of Civil Procedure by failing to assert every defense to a claim for relief.
In justifying the need for a permanent injunction, Alikhan said that by attempting to penalize Susman, the executive order went “beyond violating the Constitution and the laws of the United States. The order threatens the independence of the bar—a necessity for the rule of law.”
Susman was represented by attorneys from Munger Tolles & Olson, including partner and former Solicitor General Donald Verrilli, partner and former Assistant Solicitor General Ginger Anders, partner and former Assistant Solicitor General Elaine Goldenberg, as well as Munger Tolles Chairman Brad Brian, Hailyn Chen, the firm’s co-managing partner, and litigation partner Michael Doyen. The government was represented by the Department of Justice’s Richard Lawson.
Appeal Filed
Alikhan’s decision came the same day the U.S. Supreme Court, in Trump v. Casa Inc., limited the power of federal courts to impose nationwide injunctions blocking executive branch policies. While that case was aimed at broad, universal injunctions, it remains to be seen how the government might use that ruling to its advantage if it appeals the Susman decision and similar rulings in cases involving specific parties.
At the very least, claimants will likely face a tougher environment in the wake of the CASA decision in overturning an executive order simply because other parties have done so before them, according to legal analysis in the wake of the decision. One venue may decide cases differently than another. And trade groups like the American Bar Association, while now more central in mounting lawsuits that could have a broad effect across an industry, may face greater scrutiny around their standing to bring cases.
Whether the government would pursue appeals in the law firm executive order cases was still something of an open question when Alikhan issued her opinion. On June 30, however, the DOJ filed notice with the U.S. District court that it would appeal the permanent injunction won by Perkins Coie.
While the Department of Justice has yet to file appellate briefs, the government’s argument may hinge, in part, on the court’s limits on removing security clearances. A White House spokesperson signaled as much to The National Law Journal, saying on June 26 that “the decision to grant any individual access to this nation’s secrets is a sensitive judgment call entrusted to the President. Weighing these factors and implementing such decisions are core executive powers, and reviewing the President’s clearance decisions falls well outside the judiciary’s authority.”
Moving the matter to the U.S. Court of Appeals for the D.C. Circuit may also be a step toward a Supreme Court case, which, as the injunctions case demonstrates, has taken a more deferential view than the lower courts on the limits of Trump’s authority.
Already Winning?
Even if it fails on appeal, the Trump administration has already scored more victories than losses against the legal industry. As Alikhan noted in her opinion, Skadden, Arps, Slate, Meagher & Flom, Willkie Farr & Gallagher, Milbank, Kirkland & Ellis, A&O Shearman, Simpson Thacher & Bartlett, Latham & Watkins, Cadwalader, Wickersham & Taft, and Paul, Weiss, Rifkind, Wharton & Garrison have all negotiated agreements with the Trump Administration to avoid executive orders or (in the case of Paul, Weiss) have them rescinded.
In exchange, the firms committed to providing nearly $1 billion in pro bono work on initiatives supported by Trump, including ones, Alikhan wrote, that “represent the full political spectrum, including conservative ideals,” and further affirmed that they would not “engage in illegal DEI discrimination and preferences.”
“The Trump administration probably feels like it has already succeeded beyond its wildest dreams,” Harold Koh, a professor and former dean at Yale Law School, told The New York Times in June.
The ABA, in a complaint filed last month, argues that the Trump administration’s actions have prompted law firms to avoid taking on matters that might put them at odds with federal officials. In its lawsuit, the ABA cites multiple examples of firms stepping back from projects on behalf of groups out of favor with the current administration. The executive orders, the ABA’s suit said, were “chilling [lawyers’] and their firms’ speech and practices” to the point that they “were too fearful of retaliation even to have their experiences described anonymously.”
That fear is precisely the point, Trump critics and allies say. Trump is targeting firms “to cut them off,” Steve Bannon, the conservative strategist and former White House adviser, has said. “They're not going to be walking around making four and five, six million bucks a year because he's going to put those law firms out of business. Let me repeat this. There's major law firms in Washington, D.C. and…what we are trying to do is put you out of business and bankrupt you. Just so you understand it.”
--
David L. Brownis a legal affairs writer and consultant, who has served as head of editorial at ALM Media, editor-in-chief of The National Law Journal and Legal Times, and executive editor of The American Lawyer. He consults on thought leadership strategy, creates in-depth content for legal industry clients, and works closely with Best Law Firms as senior content consultant.
