Wilmer Cutler Pickering Hale and Dorr LLP v. Executive Office of the President
Civil Action No. 2025-0917
D.D.C.May 27, 2025Background
- Wilmer Cutler Pickering Hale & Dorr LLP (WilmerHale), a large law firm, was the subject of an Executive Order titled “Addressing Risks from WilmerHale” issued March 27, 2025 as part of a series of similar Orders targeting large firms.
- The Order’s Background section publicly condemns the firm’s advocacy (e.g., pro bono work, election and immigration litigation, association with Robert Mueller) and directs agency actions: suspend active security clearances of WilmerHale personnel, identify and cease providing government goods/services, require contractors to disclose business with WilmerHale and review/terminate contracts, refer racial-discrimination reviews, limit access to federal buildings, and restrict hiring of firm employees.
- WilmerHale sued the Executive Office of the President and federal agencies the next day, alleging 11 counts (First, Fifth, Sixth Amendments; separation of powers; Spending Clause), sought injunctive relief, and obtained a TRO enjoining enforcement of §§3 and 5 pending decision.
- The Court treated the Order as a unified instrument (not severable section-by-section), found WilmerHale had Article III and third‑party standing, and held the claims ripe for review despite arguments about future agency implementation and national‑security nonreviewability.
- On the merits the court granted summary judgment to WilmerHale on Counts I–VII and X (First Amendment retaliation, viewpoint discrimination, petition, association; procedural due process; vagueness; separation of powers; Sixth Amendment right to counsel), dismissed Counts VIII, IX, XI (equal protection, Fifth‑Amendment right‑to‑counsel claim, Spending Clause) and permanently enjoined the entire Order as unconstitutional.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing / Justiciability | WilmerHale alleges concrete First Amendment and economic injuries traceable to the Order and asserts third‑party standing for affected clients. | Defendants contended injuries were speculative, ripeness premature, and some claims non‑justiciable (security‑clearance political question). | Court: WilmerHale has Article III and third‑party standing; claims are ripe; Lee does not bar review of the Order’s process and blanket suspension. |
| First Amendment (retaliation & viewpoint) | The Order punishes and coerces WilmerHale for protected litigation and petitioning activity and targets its viewpoints, directly and indirectly (contract pressure). | Defendants characterize each provision as permissible executive discretion and nonpunitive. | Court: The Order is unconstitutional retaliation and viewpoint discrimination; granted summary judgment for WilmerHale. |
| First Amendment (petition & association) | Order interferes with right to petition by curtailing access to federal buildings/staff and compels contractor disclosure of association. | Govt asserts managerial, anti‑discrimination, and contracting interests. | Court: Restrictions fail exacting scrutiny and are not narrowly tailored; compelled disclosures and contract pressures violate petition and association rights. |
| Separation of powers / ultra vires | President cannot usurp judicial authority to police and sanction attorney conduct; Order unlawfully punishes litigation conduct and intrudes on courts’ inherent powers. | Defendants claim each section falls within executive authority (access control, contracting, security). | Court: Order usurps judicial power to discipline and sanction; granted summary judgment on separation‑of‑powers claim. |
| Due process (procedural & vagueness) | WilmerHale lacked notice and meaningful process before punitive directives; Order is vague about what conduct it forbids. | Defendants argued provisions are non‑final directives and will be implemented consistent with law. | Court: Procedural‑due‑process and void‑for‑vagueness claims succeed; Order provided no process or adequate notice and is standardless. |
| Right to counsel (Sixth / Fifth) | Order effectively prevents criminal defendants from retaining WilmerHale (access limits; clearance suspensions); clients’ right to counsel of choice infringed. | Defendants argued alternatives exist and Fifth Amendment counsel claim requires showing unavailability. | Court: Sixth Amendment claim succeeds (choice-of‑counsel violation complete even if indirect); Fifth Amendment claim dismissed for failure to show attorney unavailability. |
| Spending Clause / Unconstitutional conditions | WilmerHale argued §3 imposes unconstitutional conditions on federal contracting. | Defendants noted Order is executive guidance; spending‑conditions implicate Congress. | Court: Spending Clause claim dismissed—plaintiff did not allege congressional action; remedy properly rests outside Spending Clause. |
Key Cases Cited
- Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (limits on presidential power; Youngstown framework for executive action)
- Rust v. Sullivan, 500 U.S. 173 (1991) (distinguishing funding‑program limits from conditions that reach private activity)
- Department of the Navy v. Egan, 484 U.S. 518 (1988) (deference and limits on judicial review of security‑clearance substantive determinations)
- Greenberg v. National Treasury Employees Union, 983 F.2d 286 (D.C. Cir. 1993) (judicial review of methods/processes used in security‑clearance procedures is permissible)
- Gonzalez‑Lopez v. United States, 548 U.S. 140 (2006) (Sixth Amendment right to counsel of choice is fundamental and non‑waivable by showing harmlessness)
- Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013) (standing requires non‑speculative, fairly traceable injury)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (Article III standing requirements)
- Spokeo, Inc. v. Robins, 578 U.S. 330 (2016) (injury‑in‑fact must be concrete and particularized)
- Rosenberger v. Rector of Univ. of Va., 515 U.S. 819 (1995) (government may not engage in viewpoint discrimination)
- NAACP v. Button, 371 U.S. 415 (1963) (litigation as protected political expression and association)
- Borough of Duryea v. Guarnieri, 564 U.S. 379 (2011) (petition clause protects litigation activity)
- Mille Lacs Band of Chippewa Indians v. Minnesota, 526 U.S. 172 (1999) (severability and interpreting executive instruments as standing or falling as a whole)