Mueller’s Ex-Law Firm Speaks Out as DOJ Reverses Executive Order, While Trump Reacts to Special Counsel’s Closure

Just as it appeared that the Department of Justice was ready to cease defending President Donald Trump’s executive orders targeting Democratic “lawfare” and the law firms he accused of it, the Trump administration made an abrupt change in direction. Presently, one legal firm is seeking support from an appeals court, asserting that Trump imposed unconstitutional penalties for “welcoming” the late special counsel Robert Mueller back to their ranks following the conclusion of the Russia investigation.

In a detailed 40-page brief submitted on Friday to the U.S. Court of Appeals for the D.C. Circuit, WilmerHale acknowledged Mueller’s passing on March 20, at the age of 81. While the document did not refer to Trump’s social media comment—where he remarked, “Good, I’m glad he’s dead”—the brief emphasized that Executive Order 14250, titled “Addressing Risk of WilmerHale,” was evidently not concerned with national security issues.

In early March, when the DOJ moved to withdraw its appeal against significant legal losses, focus quickly shifted to the nine law firms that had contentiously settled with the Trump administration. These firms collectively agreed to nearly a billion dollars in pro bono legal services to ensure their security clearances and contracts remained intact.

Among these firms, Paul Weiss was notably linked to Mueller, and Trump’s former executive order highlighted this association explicitly.

WilmerHale argued that Trump’s declared national security rationale seemed to dissipate once Paul Weiss “agreed to adapt its policies in a manner more aligned with the President’s preferences.”

“[T]he President vitiated the earlier order in toto, without retaining the suspension of security clearances or any other sanction that could possibly be justified on grounds of national security,” the brief said. “That is proof-positive that these orders are being imposed (and revoked) as a single, unified package.”

What the case is actually about, the brief went on, is Trump’s “draconian punishments” against WilmerHale to plainly “retaliate” against the firm for its former association with Mueller and for its First Amendment-protected viewpoint about the ex-special counsel, FBI director, and Marine.

The firm said the president “openly” stated that the firm’s “‘partisan’ and ‘political’ views, including [the] decision to ‘welcom[e]’ Robert Mueller back to the firm following his work as Special Counsel,” were behind the executive order.

For instance, the order cites Mueller and other former members of his Special Counsel’s Office with WilmerHale ties by name, slamming them for their involvement in “one of the most partisan investigations in American history.”

“[W]hile the President may disagree with Mueller’s decision to accept the invitation (by President Trump’s own Justice Department) to serve as Special Counsel, or with the viewpoints expressed in his report, or with WilmerHale’s decision to welcome him back after his service, the President may not penalize the firm based on its association with Mueller and his (real or perceived) viewpoints,” the filing said.

WilmerHale urged the D.C. Circuit to affirm that Trump’s executive order is “riddled with constitutional defects and that a district judge was “amply justified” in totally blocking the “egregious First Amendment violations”.

“This is First Amendment 101,” the brief concluded.

In a statement on Mueller’s death, the firm said its former partner’s “life was exceptionally well spent,” referring to his military service in Vietnam, FBI directorship during and after 9/11, and the Russia investigation.

“Bob was known more recently to the country as Special Counsel and the namesake for the Mueller Report, which described Russia’s interference in the 2016 presidential election and former President Trump’s actions towards the investigation of Russia’s conduct,” the firm said.

With the DOJ’s “unexplained about-face” keeping the appeal alive, Jenner & Block, Perkins Coie, and Susman Godfrey each separately filed briefs the same day seeking another victory.