John Keker, Keker, Van Nest & Peters

John Keker and his team at Keker, Van Nest & Peters kicked into action quickly after President Donald Trump signed an executive order in January threatening to strip federal funding from about 300 communities across the country which decline to cooperate with federal immigration officials. In an recent interview with The Recorder, Keker said Trump’s sanctuary city order was “the most unconstitutional thing that I could imagine, and we jumped on it.”

Working pro bono on behalf of Santa Clara County, the Keker team filed suit on the heels of another filed by San Francisco, and upped the ante by asking for the nationwide injunction. In April U.S. District Judge William Orrick III issued a nationwide injunction barring the Trump administration. Keker recently spoke with The Recorder about the unique nature of the case and why the firm thought it was an important pro bono effort to take on. What follows has been edited for length and clarity.

What does this case show us about the firm’s litigation capacities? Santa Clara v. Trump was easy [compared to our big trial wins] because the sanctuary cities order that the Trump administration put out was the most unconstitutional thing that I could imagine, and we jumped on it. There was a lot of enthusiasm from lawyers here to point out the serious unconstitutional nature of it, and Judge Orrick didn’t take much time to decide that we were right and the administration was wrong.

You might be down-selling the impact though. You’re talking about a nationwide injunction which had an affect across the country. Well I think it had a huge impact on the administration. It sort of shut the administration up over things that it wanted to do that weren’t constitutional, and made them stop and think and recognize the adverse publicity they were going to get if they kept doing these stupid things that weren’t going to stand up in court. And it also gave us a chance to let the judiciary be [the] third branch and do what it’s supposed to do.

Why was this case an important one for the firm to take on? It was important because we believed in the merits of the case. The idea—that the president of the United States would intervene and take on unconstitutional powers to say, “I’m going to cut federal funding for this, that, and the other,” when it was clear that that was not his role, it was Congress’—that was important.

But I think more importantly, this firm has been very concerned about immigration policies. We’ve had a huge pro bono program to represent kids who were being sent back without counsel, without any kind of protection. There are just a lot of people in this firm that care about immigration reform. The sanctuary cities order was so anathema to that there was huge support in the firm. When the travel ban first came out lots of people in this firm were down at the airport holding up signs that said, “I’m a lawyer if you need help.” So ideologically and practically, that was an important case to us.

What are the unique challenges of litigating against the Trump administration?  Well, unique is when you sue the president of the United States, you’re really taking on something. Fortunately, this president has made it easy. He overreaches so much. He so violated, in this instance, the balance of powers that we thought we had a good shot. What was difficult about it was that the administration was also inconsistent.

They came into court and their argument basically was “No, no, no. Don’t read what we said. Don’t read what’s in the order. This is what we meant. And please, judge, please listen to what we say now, which is something completely different than what is written down.” Which is very annoying to me. And then Attorney General Sessions came out and said, “This is how we’re going to interpret the order,” which was fairly offensive. And it was very offensive to Judge Orrick, too. They came in and said, “Judge Orrick, you spent so much time reading our executive order. That’s not what it means. It means something entirely different.”

It has to keep you on your toes at oral argument though, because it’s a shifting target, right? That’s what Judge Orrick was saying. Judge Orrick was saying, “C’mon guys. I can read the words. They’re perfectly clear. And now you, as a representative of the Justice Department, are coming in and saying because I’m a mere federal district judge I should listen to you telling me that it means something different.” I don’t know if that was a challenge, but it was really annoying.