‘The quantum of proof is nonexistent’: Judge tears into speechless DOJ lawyer over Trump’s attacks on law firms

An attorney with the Department of Justice faced tough questions and had a rough slog overall in a Washington, D.C., courtroom on Thursday as he continued his ongoing, one-man efforts to defend the Trump administration’s checkered crusade against Big Law.

Richard Lawson is the lone lawyer the government has decided to use during in-court efforts to push back against lawsuits filed by law firms like Perkins Coie, Jenner & Block, and WilmerHale.

At one point during a two-hour motions hearing before U.S. District Judge Loren L. AliKhan over the Trump administration’s efforts to defang Susman Godfrey LLP, the recently minted deputy associate attorney general was rendered quite literally speechless.

And it happened twice.

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As the court unraveled several issues in President Donald Trump‘s April 9 executive order, key sticking points during the hearing concerned an allegation that the Los Angeles-based law firm “engages in unlawful discrimination, including discrimination on the basis of race.”

During his time at the dais, Susman Godfrey’s lead attorney, Donald Verrilli, said the president’s findings were “completely baseless.”

The Joe Biden-appointed judge, for her part, repeatedly tried to ferret out what, exactly, the government had based the discrimination allegation on.

And there, Lawson was admittedly lacking.

“I don’t have the hard data on hiring,” the DOJ lawyer said at one point.

Instead, Lawson tried to defend Trump’s order by suggesting the court shift to a more nebulous but more holistic inquiry into “the quantum of proof that must exist” for the executive to determine a potential policy. To that end, Lawson argued, the answer is: “it’s low.”

In other words, the government lawyer was trying to move the debate away from specifics and into a framework where the court would be amenable to giving the president broad discretion — even, and perhaps especially, if the specifics are difficult to come by. Lawson suggested the court could sign off on a policy where the president acts based on his subjective understanding of the law firm’s commitments to diversity.

“There has to be some level of discretion afforded to the executive,” he said.

But the judge was not having it.

“I don’t know how, if you’re relying on a legally erroneous statement, you’re allowed to exercise that discretion,” AliKhan replied.

The sole statement in Trump’s order supporting the allegation is: “For example, Susman administers a program where it offers financial awards and employment opportunities only to ‘students of color.””

That line, it turns out, is a reference to the Susman Godfrey Prize, which the law firm describes as “[a]n honor awarded annually to up to 20 students of color who are finishing their first or second year at an eligible law school” and “part of the firm’s ongoing commitment to celebrate and promote diversity among civil trial lawyers.”

The government lawyer was pressed to concede that the prize is not unlawful discrimination in employment under Title VII of the Civil Rights Act, despite previous language in court filings highlighting the prize and suggesting it is unlawfully discriminatory.

“It doesn’t seem like anything you have alleged in section one constitutes unlawful racial discrimination,” AliKhan said.

The judge noted that the language regarding the prize is the only example of racial discrimination that Trump’s order contains — and that the line comes immediately after the allegation.

“I just don’t know how you square the circle,” AliKhan said.

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While Lawson tried to move on to a different-but-related argument, the judge pushed him to account for the line about the prize.

“So, the only example in the executive order that has to do with racial discrimination isn’t actually an example?” the judge asked, waiting a beat before demanding an answer: “Yes or no?”

A long silence followed.

“Yes or no, sir,” the judge pressed.

More silence.

While the government lawyer did not have an answer, he finally spoke up to say as much.

“I would like to think about that, your honor,” Lawson said.

AliKhan replied: “I would like an answer before you leave my courtroom.”