On The Case

Snubbing Trump DOJ, Big Law firms back Hawaii amici in SCOTUS travel ban case

(Reuters) - More than two dozen elite private law firms filed amicus briefs Friday backing Hawaii in its U.S. Supreme Court challenge to President Trump’s executive order barring people from several Muslim majority countries from entering the United States. Among the Big Law firms representing Hawaii’s amici are Jones Day, the former home of Trump’s solicitor general, Noel Francisco, and Gibson Dunn & Crutcher, whose star litigator, Theodore Olson, declined an invitation last month to join the president’s defense team in Special Counsel Robert Mueller’s investigation.

Elite firms’ show of force on behalf of opponents of the travel ban contrasts starkly with their absence from Trump’s defense in the Mueller probe. In that case, the president is relying primarily on Jay Sekulow of the American Center for Law and Justice and Washington outsider Andrew Ekonomou.

Nor are big firms representing the Justice Department’s amici in the travel ban case. DOJ backers, including a coalition of state attorneys general and several conservative public interest groups, filed 15 amicus briefs at the Supreme Court, according to the docket in the Hawaii case. The best-known private firm appearing as counsel of record for a travel ban supporter is Consovoy McCarthy Park, an appellate boutique that filed an amicus brief for the Southeastern Legal Foundation. Last week, Consovoy Park also signed on as President Trump’s personal counsel in an emoluments suit in federal court in Greenbelt, Maryland.

The travel ban case, as you surely recall, involves the Trump administration’s third executive order barring entry to the U.S. to residents of eight countries - North Korea and seven nations with majority Muslim populations - deemed to pose a risk to national security. The Justice Department contends the president has both constitutional and statutory authority to impose such restrictions to advance security and foreign policy objectives.

Hawaii argues the government is advancing an “unprecedented” theory of the president’s unilateral power to control immigration, at odds with separation of powers doctrine, religious freedom and the Immigration and Naturalization Act.

Both the 4th and 9th U.S. Circuit Courts of Appeal have upheld injunctions against the travel ban but last December, the Supreme Court ruled the executive order could take effect until the court ultimately rules on its legality.

Why are private firms so seemingly eager to stand up against the Trump administration’s signature policy? It’s certainly true that big firms’ pro bono practices usually skew left, so it’s not surprising to see firms representing civil and religious rights organizations. Firms may also be considering the interests of their paying clients, since a lot of big businesses, especially in the tech industry, are worried about the impact of immigration restrictions. (You can read about that in an amicus brief Mayer Brown filed for 115 businesses and non-profits that oppose the travel ban.)

Hawaii’s lead Supreme Court counsel (and unabashed Trump critic) Neal Katyal of Hogan Lovells has an additional theory: Lawyers, he said, are sticklers for the rule of law. “The reason you have more than 30 major law firms filing amicus briefs is because they stand for the rule of law against a president who has done something outrageous,” Katyal said.

Katyal said not a single law firm he talked to expressed any concern about bucking the president over the travel ban. If anything, he said, Hawaii’s problem was exactly the opposite: He didn’t want to overwhelm the justices with briefs, so he tried to encourage like-minded amici to team up instead of filing individual briefs. Katyal told me the “overwhelming enthusiasm” for Hawaii’s travel ban opposition was a far cry from his scrabble for amicus support in challenges to Guantanamo Bay policies during the George W. Bush years.

Katyal highlighted a couple of briefs by travel ban opponents who haven’t appeared in previous iterations of the case. Former Bush State Department legal adviser John Bellinger of Arnold & Porter Kaye Scholer filed an amicus brief for one-time Republican National Committee chair Michael Steele, conservative radio host Charlie Sykes and several other conservative thinkers who believe the travel ban “is inconsistent with longstanding American values and principles of law.”

Debevoise & Plimpton represents another group of first-time amici, 26 retired flag officers – high ranking generals and admirals – of the U.S. Armed Forces, who contend the travel ban “jeopardizes the stability of the support that the United States receives from its allies, erodes essential goodwill, makes it more difficult for the United States to win hearts and minds abroad and otherwise undermines the ability of the United States to pursue strategic partnerships and objectives.”

I emailed the Justice Department to ask about the gap in amicus filings by outside firms in the travel ban case, as well as Katyal’s assertion that law firms were standing up for the rule of law. DOJ sent a statement: “The safety and security of all Americans is top priority for this administration. The constitution gives the president the responsibility and power to protect the United States from all threats foreign and domestic, and this lawful travel order remains critical to accomplishing those goals. We look forward to resolution at the Supreme Court.”

I also reached out to Consovoy Park - the boutique appellate firm representing a DOJ amicus - to test Katyal’s theory but didn’t immediately hear back. Many of the firms whose lawyers have reportedly declined invitations to represent President Trump, such as Winston & Strawn, Williams & Connolly, Kirkland & Ellis and Sullivan & Cromwell, are not representing amici on either side in the travel ban case.

For the record, in addition to Mayer Brown, Arnold & Porter and Debevoise, the private firms that filed briefs backing Hawaii’s opposition to the travel ban were, in alphabetical order:

- Akin Gump Strauss Hauer & Feld, for the Fred T. Korematsu Center for Law and Equality and other civil rights groups

- Altshuler Berzon for labor organizations

- Bernabei & Kabat for civil rights groups

- Boies Schiller Flexner for former Department of Homeland Security Secretary Janet Napolitano and other former officials

- Crowell & Moring for the Tahirih Justice Center

- Davis Polk & Wardwell for art museums and galleries

- Davis Wright Tremaine for PEN America and others

- Foley Hoag for the Massachusetts Technology Leadership Council

- Frankfurt Kurnit Klein & Selz for the Anti-Defamation League and other Jewish groups

- Freshfields Bruckhaus Deringer for the Cato Institute

- Gibson Dunn for the United States Conference of Catholic Bishops

- Hangley Aronchick Segal Pudlin & Schiller for immigration, family and constitutional law professors

- Hillis Clark Martin & Peterson for Episcopal bishops

- Harris Wiltshire & Grannis for the American-Arab Anti-Discrimination Committee

- Jenner & Block with briefs for U.S. colleges and universities and federal courts scholars

- Jones Day for professors of federal courts jurisprudence, constitutional law and immigration law

- Kaplan & Company for constitutional law scholars

- Keker, Van Nest & Peters for Khizr Khan

- Linklaters for the American Jewish Committee

- Manatt Phelps & Phillips for several Muslim groups

- Mayer Brown for more than a dozen major U.S. companies

- McDermott Will & Emery for both the National Asian Pacific American Bar Association and the Association of American Medical Colleges

- Morrison & Foerster for an interfaith group of religious and interreligious organizations

- Munger Tolles & Olson for the American Council on Education and other higher-ed groups

- Orrick Herrington & Sutcliffe for former executive branch officials

- Patterson Belknap Webb & Tyler for the National Association of Muslim Lawyers

- Paul Weiss Rifkind Wharton & Garrison for Ohio State prof Eblal Zakzok

- Perkins Coie for international law scholars and NGOs

- Proskauer Rose for New York University

- Sidley Austin for the National Immigrant Justice Center and The American Immigration Lawyers Association

- Simpson Thacher & Bartlett for immigrant rights organizations

- Skadden Arps Slate Meagher & Flom for Immigration Equality and other LGBT groups

- Wiggin & Dana for former Congressman Mickey Edwards and Harvard professor Einer Elhauge

- Willkie Farr & Gallagher for William Webster, John Danforth, Carter Phillips and other former federal officials

- Wilmer Cutler Pickering Hale & Dorr for immigration law scholars