Over the weekend, I analogized the administration’s brass-knuckles tactics against the AI giant Anthropic to the president’s extortionate executive orders that sought to put several law firms he didn’t like out of business.

Naturally, that prompts the question: What ever happened to those EOs?

Well, as I noted in the post:

Several judges have struck down these extortionate directives (see, e.g., here and here.) At the time, I described them as, functionally, unconstitutional bills of attainder or bills of pain and penalty: provisions that condemn a person or category of persons for alleged wrongs and impose penalties, all without trial or due process. (The provisions the Framers were referring to were legislative acts; the wrong is the same, nevertheless, whether it is accomplished by an unconstitutional statute or unconstitutional executive action.)

Several judges have struck down these extortionate directives (see, e.g., here and here.) At the time, I described them as, functionally, unconstitutional bills of attainder or bills of pain and penalty: provisions that condemn a person or category of persons for alleged wrongs and impose penalties, all without trial or due process. (The provisions the Framers were referring to were legislative acts; the wrong is the same, nevertheless, whether it is accomplished by an unconstitutional statute or unconstitutional executive action.)

Now the rout suffered by the Justice Department in trying to defend the indefensible is back in the news.

On Monday, the Trump DOJ notified counsel for the four law firms that it was dropping its appeal to the D.C. Circuit, in which the cases involving the firms have been consolidated. This morning, however, it abruptly reversed course. In a brief submission, the government notified the circuit that it was withdrawing its voluntary dismissal and sought leave to continue its appeal.

The law firms have objected. Since there had not yet been a ruling on the DOJ’s dismissal motion, I believe the court will grant the application to continue pursuing the appeal.

I expect the government will lose on appeal, just as it lost in the lower courts. The DOJ and the White House are not speaking publicly about the rationale for the about-face. The educated speculation is they are worried that conceding that the EOs were lawless could unravel the deals made with nine other firms, which decided to settle rather than fight. In those settlements, the firms pledged what, in the aggregate, was hundreds of millions of dollars’ worth of legal services to causes the president would approve.

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