Big Law is a scourge of modern politics we don’t often hear about—-the collection of 200 or so giant law firms, populated with hundreds of partners, that jostle for prominence in Washington and the nation. Firms like Kirkland & Ellis and Jones Day have become a way station between government and business where partners can advocate for corporate clients while awaiting appointment to Executive Branch offices. Once inside government, they push to collaborate with corporate power rather than offer resistance. In many cases they oversee the same industries they once worked for. We elect politicians and then we get corporate-approved policies churned out by Big Law; it’s a kind of policy deep state. Big Law provides the oil that makes the revolving door spin.
This cozy relationship knows no one party; Covington & Burling famously held open a corner office for Eric Holder while he negotiated settlements with many of their banking clients. But the Trump administration has taken merging with Big Law to new heights. A new report from Public Citizen, provided first to The Nation, “Big Law, Big Conflicts,” identifies 76 different lawyers working or nominated to work at cabinet agencies or inside the White House who either worked for Big Law firms or directly in the legal departments of corporations. These lawyers, seeded across the government, “either previously represented companies with business before the government, or worked in the same field they now oversee,” writes report author Alan Zibel.
The big winners are two of the largest Big Law firms: Jones Day has 12 alumni in the Trump administration, and Kirkland & Ellis has 11. The nominated leader and top deputy of the Justice Department’s Civil Rights Division come from Jones Day, as do Solicitor General Noel Francisco and White House Counsel Don McGahn. Kirkland & Ellis alums include Justice Department criminal-division nominee Brian Benczkowski, DOJ environment and natural-resources nominee Jeffrey Clark, Labor Department counsel Kate O’Scannlain, and Transportation Department Deputy Secretary Jeffrey Rosen.
It’s one thing that these figures worked in Big Law before joining the Trump administration. But in many cases we know what they did for corporate clients prior to government work. Solicitor General Noel Francisco, for example, worked for the tobacco industry, arguing against government advocacy against smoking on public-health grounds. The civil-rights-division attorney, Eric Dreiband, represented companies accused of discrimination, from CVS Pharmacy to Abercrombie and Fitch.
Brian Benczkowski will shift from defending companies accused of white-collar crime to running the criminal division at the DOJ. John Demers, assistant attorney general for the national-security division, was general counsel at Boeing. Even the head of the FBI, Christopher Wray, came out of Big Law stalwart King & Spalding. That firm counts as a client medical company MiMedx; the FBI recently raided a short seller’s house for sending a threatening tweet about MiMedx’s CEO.
Rachel Brand, formerly of Cooper & Kirk, famously left her role as number three at the Justice Department a couple weeks ago. No matter; her replacement, Jesse Panuccio, came from Foley & Lardner, and before that, Cooper & Kirk.
The Big Law stranglehold on the Justice Department is perhaps to be expected. But this infestation of corporate lawyers goes well beyond the DOJ. According to the report, 10 lawyers at Trump’s Environmental Protection Agency raise revolving-door concerns, having worked for coal-mining companies, Koch Industries, petroleum firms, and more. One lawyer, William Wehrum, sued the government 31 different times while at Hunton & Williams to revoke clean-air protections before being confirmed to lead the EPA’s Office of Air and Radiation.
Ryan Zinke’s top deputy at the Interior Department has a history of lobbying and legal work for oil, mining, and Big Ag interests. A special assistant to Education Secretary Betsy DeVos worked as chief compliance officer for a for-profit college. The general counsel for the Commerce Department ran government relations (i.e., lobbied) for Verizon. And on and on.
The report actually gives Trump a break by not including members of independent agencies like the Securities and Exchange Commission, which is crawling with Big Law expats. “While the names of government lawyers are rarely in the headlines, they are crucial to the functions of government,” Zibel writes. “They decide whether the government will give polluters, scam artists, predatory lenders and other wrongdoers a harsh penalty or an easy pass. They determine whether the federal government for will go soft on corporate wrongdoers or allow them to prosper.”
The report also offers a comparison of 23 key legal hires in the Obama and Trump administrations, comparing the number of corporate lawyers under each president. Obama hired nine lawyers with revolving-door issues; Trump has hired 17. After winning the election, Trump promised to ban lobbyists from his team, as well as individuals working to oversee the same industries they worked for. But constant ethics waivers have turned the lobbying ban into a joke. By June of last year, over 100 lobbyists were working in the administration, many of them tied to Big Law firms.
The Trump administration claims that recusals prevent any conflict of interest. But one Big Law operation on behalf of a client has already been caught and overturned. National Labor Relations Board member William Emanuel, a veteran of Jones Day and other Big Law firms, most recently worked for Littler Mendelson PC, who represented Browning-Ferris in an NLRB case concerning the “joint employer” standard. Under Obama, the NLRB ruled in that case that workers could seek union rights or claims with the parent company of a franchise they work for. When the NLRB shifted under Trump, Hy-Brands brought forward an attempt to reverse Browning-Ferris. Even though Emanuel worked for Browning-Ferris’s law firm, he didn’t recuse himself from the vote, and the joint-employer standard was overturned. After the NLRB’s inspector general questioned Emanuel’s vote, the NLRB actually overturned its Hy-Brands ruling, in a rare moment of ethical probity.
But the emphasis should be on the word “rare.” Most of the time, these lawyers do the bidding of corporate America without resistance. And the advocacy goes beyond any one company and cannot be solved by recusal, Zibel writes. “Having spent years defending corporate clients and absorbing their worldview, it defies common sense that such lawyers would readily pivot from representing BP to cracking down on Shell or ExxonMobil.”
The Big-Law-to-government transfer doesn’t just ensure that corporations get favorable treatment in Washington. It gives Big Law’s finest a window into the inner workings of the halls of power, which they can use to earn higher billable hours from corporate clients. In this sense, government service acts like an internship before the big bucks get made. “This report fleshes out with new detail one of the biggest stories in Trump’s ever more fetid swamp: DC elites dipping briefly into the government in order to improve their résumés and broaden their contacts,” said Jeff Hauser of the Revolving Door Project at the Center for Economic and Policy Research. “Trump’s lawyers are getting a detailed understanding of the government’s law-enforcement strengths and weaknesses that they can bring back to corporate America when they return to Big Law or go in-house. Public service should be an act of patriotism, not an act of greed.”