Since taking office for the second time, President Donald Trump has suffered multiple losses in his efforts to strip security clearances from political opponents and prestigious Washington law firms. With several of those cases working through the courts, the issue could become one of the next Supreme Court fights over presidential power.
The president’s latest loss came this week, when a federal judge in Washington temporarily blocked Trump’s efforts to strip a security clearance from national security attorney Mark Zaid. In 2019, Zaid represented the government whistleblower who accused Trump of trying to pressure Ukraine for damaging information about his political opponents. The accusations led to Trump’s first impeachment.
In his Tuesday order, U.S. District Judge Amir Ali found that Zaid was likely to succeed on his claim that revoking Zaid’s security clearance violated the attorney’s constitutional free speech and due process rights. The order notes that Trump has called Zaid a “sleazeball” and said the lawyer should be sued for treason.
“This case involves the government’s retribution against a lawyer because he represented whistleblowers and other clients who complained about the government,” wrote Ali, who was appointed by President Joe Biden.
The case should not have been difficult, Zaid said in an interview. “But it’s surrounded by all sorts of constitutional analysis because of the assertion by the Trump administration that it has the power to do anything it wants without any oversight whatsoever.”
He compared his situation — as well as Trump’s targeting of law firms more generally — to the line from William Shakespeare’s play “Henry the VI, Part 2”: “The first thing we do, let’s kill all the lawyers.” The line, spoken by one of the play’s villains, is about subverting lawyers “fighting for rule of law,” he said.
The White House did not immediately respond to a request for comment.
The case began with a March 22 presidential memorandum in which Trump revoked the security clearances of Zaid and 14 other individuals, saying that he had determined it was “no longer in the national interest” for the people to hold the clearances.
The individuals included Democrats such as Biden, former vice president Kamala Harris and former secretary of state Antony Blinken. It also included New York Attorney General Letitia James (D), whom Trump’s Justice Department has tried, and so far failed, to indict in a mortgage fraud case. The administration has also revoked clearances of 37 current and former national security officials.
This spring, Trump moved to summarily suspend the security clearances of several large Washington law firms that regularly do work for the government and have ties to his perceived political opponents. Trump argued that the law firms posed national security dangers to U.S. interests and said the firms’ diversity, equity and inclusion policies resulted in “unlawful discrimination.”
Though some law firms cut deals with the administration to keep their clearances, others successfully sued to block the actions.
This year, federal judges in Washington blocked the administration’s attempts to suspend security clearances from the law firms Jenner & Block, Susman Godfrey, WilmerHale and Perkins Coie. In each case, the judges found that the orders were retaliatory and violated the firms’ constitutional free speech rights.
In the case of Jenner & Block, U.S. District Judge John D. Bates wrote that the president was trying “to chill legal representation the administration doesn’t like, thereby insulating the Executive Branch from the judicial check fundamental to the separation of powers.”
The administration has appealed those cases and, depending on the outcomes in the court of appeals, the issue could be decided by the Supreme Court. The high court has heard a number of cases concerning presidential power this term, and it’s unclear how it would rule.
Should his case reach the Supreme Court, Zaid said the issue could transcend judicial ideology. No matter which way they lean, the justices “recognize the importance and role that lawyers play in society,” he said. “And what the Trump administration is doing with clearance revocations … is a direct attack on our ability to enforce exactly what judges enforce: the rule of law.”
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