On this week’s WhoWhatWhy podcast, I’m joined by New York Times investigative reporter David Enrich, also a former Wall Street Journal reporter, and the author of the just released Servants of the Damned: Giant Law Firms, Donald Trump, and the Corruption of Justice.
Enrich’s work on the law firm, Jones Day, is yet another layer of something we looked at several months ago, when we spoke with Rhode Island Sen. Sheldon Whitehouse (D) who detailed what he calls “The Scheme”: The complex corporate/political web by which extreme conservative forces have moved to control the Republican Party, the Federal judiciary, and Federal regulatory agencies — all to the benefit of some of the worst corporate interests.
Like any effort of this magnitude, it needs a lot of lawyers. For those engaged in “The Scheme,” they needed their version of Neil Mink or Tom Hagen. For them, as Enrich details, the firm that has taken on this job is Jones Day. Some of its 2,500-plus lawyers include (or previously included) Trump White House counsel Don McGahn, former Fox Host Megyn Kelly, GOP Election lawyer Ben Ginsberg, Trump’s Solicitor General Noel Francisco, and even, at one time, Antonin Scalia.
One of the 10 biggest law firms in America, the firm has been the go-to practice for MAGA, Donald Trump, and a client list that includes Purdue Pharma, big tobacco, gun manufacturers, Fox News, an assortment of Russian oligarchs, and even the Catholic Church.
Enrich lays out Jones Day’s close connection to the Federalist Society, the way in which it’s used its political influence and almost mob-like methods to benefit a long list of its Fortune 500 clients, all very much in line with “The Scheme” that Whitehouse describes.
Enrich outlines Jones Day’s involvement in Stop the Steal, its role in trying to overturn ballots in Pennsylvania in 2020, and its ongoing involvement with Trump, Florida Gov. Ron DeSantis (R) (whose current chief of staff was a Jones Day partner) and all of its many tentacles in to the Republican party.
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Jeff Schechtman: Welcome to the WhoWhatWhy podcast. I’m your host, Jeff Schechtman. Perhaps better than anyone else, Rhode Island’s Senator Sheldon Whitehouse, in his series of Senate speeches, outlined what he called The Scheme: a complex method by which conservative forces were mobilizing to take over the Republican Party and the country. Through things like ALEC, they would take over state legislatures. They would use money and influence to impact and help big business, big energy, big pharma, and, of course, shape the courts.
But like any effort of this magnitude, they would need lots of lawyers to do it. Lawyers to man the ramparts of elections, help keeping political campaigns on track, and even help electing Donald Trump. And then to push through things like the Muslim ban, to help direct government agencies that have been taken over by regulatory capture, to try and stop Obamacare, and to fill the federal bench all the way up to the Supreme Court, even if it meant moving other judges out of the way.
It was a big job and it would require a big law firm, and the Republicans had one in Jones Day, a Cleveland-based law firm that would become the legal nerve center of the conservative movement and Trump politics. A firm that included people like White House Counsel Don McGahn, election lawyer Ben Ginsberg, Fox TV host Megyn Kelly, as well as Trump’s solicitor general, and even at one time, Antonin Scalia. At various times, Jones Day also represented half the companies in the Fortune 500 including Goldmann Sachs, General Motors, McDonald’s, and even the Catholic Church.
To understand Jones Day, and to understand GOP politics today and the state of our country, I am joined once again by David Enrich. David is the multi-award-winning business investigations editor at The New York Times and the best-selling author of Dark Towers about Deutsche Bank and Donald Trump. He previously was an editor and reporter at The Wall Street Journal, and it is my pleasure to welcome David Enrich to the WhoWhatWhy podcast to talk about his latest work, Servants of the Damned: Giant Law Firms, Donald Trump, and the Corruption of Justice. David, thanks so much for joining us.
David Enrich: Thanks for having me.
Jeff: It’s great to have you here. Talk a little bit about the origins of Jones Day and more specifically, with respect to the conservative movement and the Republican Party, the niche that Jones Day would come to fill.
David: Well, as you mentioned in your intro, Jones Day, for a very long time, was just a very big Cleveland-based corporate law firm that focused on defending a who’s who of corporate America against government investigations and lawsuits and things like that that accuse the companies of harming customers or violating laws, things like that. This is just a run-of-the-mill big corporate law firm.
And then earlier this century, in the early 2000s, the firm got a new managing partner, so a new leader of the firm. His name was Steve Brogan. And Brogan was very conservative and began to essentially attract people who share his very entrenched conservative beliefs to the law firm and he started to build up practices at the firm and a culture at the firm that embraced this fairly hard right conservatism.
And it started to manifest itself, I think, during the Obama era when Jones Day became the leading legal opponent of Obamacare and then it led multiple legal challenges on multiple different issues, going all the way up to the Supreme Court, trying to invalidate either parts or all of Obamacare. It failed, for the most part, doing that, but that was a moment where it became clear that this is a law firm with 2,500 or so lawyers, many of whom are Democrats.
They come from all different political backgrounds and philosophies, but the people at the very top of the firm, led by Brogan, tended to be pretty conservative, cut from a Federalist Society mold, and this really started manifesting itself even more clearly in 2014 and 2015. The firm did not previously have a practice working on political law or election law until it hired a team of hotshot Republican lawyers.
And so it came over, started that practice at Jones Day, and one of the first clients that they brought on into that practice was Donald Trump’s 2016 presidential campaign. And they signed on with Trump in early 2015, so right at the very beginning, before he had any real credibility certainly in mainstream Republican circles. And the firm, at least publicly, hitched its wagon to Trump very early on and it put the firm in a position to wield enormous influence, not only over the Trump campaign but, eventually, after Trump won over national politics and the shape of the entire federal judiciary.
Jeff: Did Brogan move the firm in this way as a true believer politically, or did he simply see a niche in the big law market that he was trying to fill?
David: No, I think this is something that he’s a true believer in. Servants of the Damned, by the way, traces how big law firms became the dominant force in the legal system today and it went from being a legal profession with… well, it’s a profession where lawyers can consider themselves to be officers of the court and public-spirited and weren’t quite so concerned with making money as they were with pursuing the truth and fairness and honesty.
And the legal profession has become the legal industry which is, as the name implies, much more concerned with making money at all costs. And one of the ironies with Jones Day is that…And, look, they are very interested in making money and they make a ton of money every year. They rake in billions of dollars a year in revenue representing all these giant companies.
But the political work that they have enmeshed themselves in, so much in the past decade, is that the irony of that is that it’s not actually all that profitable for them. So they have and they would become the law firm of choice for the Republican Party for a lot of different candidates, its mainstream and fringe alike in the conservative circles. But that work is aimed in the grand scheme of things. For a firm the size of Jones Day, it’s not all that lucrative. And so I really think it reflects their core underlying values of Brogan and his inner circle, with one or two exceptions, are all people who are very, very conservative and care deeply about conservative issues, whether it’s abortion or the role of religion in public life or the role of the government to play in protecting consumers and small businesses from big, powerful companies and industries.
And so I think they really are true believers and they have set out to use the power at their disposal and the money at their disposal to achieve as much as they can of this kind of conservative wish list.
Jeff: And even though the political work itself may be less profitable, it provides a kind of branding for the firm in many respects and also gives them a lot of influence in the corporate world, which they could then turn into other pieces of lucrative business.
David: Yes, that’s exactly right and that’s an important point. Yes, they are true believers and, yes, of course, it’s not all that lucrative, but I’ve seen it over and over again where the influence that they have can wield within conservative circles and then, particularly within the Trump administration, has allowed them to serve their corporate clients much more effectively than they otherwise might have been able to.
And to me, the clearest example of that is a case that they worked on for Walmart, which is, among other things, one of the country’s leading [and] largest pharmacy chains. Walmart was accused by federal prosecutors of violating the law by dispensing opioids from its pharmacies, just willy-nilly without a whole lot of scrutiny [as] to whether the prescriptions were valid, and so they were under investigation for violating the law by distributing so many opioids.
And Jones Day was representing Walmart, and one of their strategies was to contact a lot of the people who had previously worked at Jones Day and now were in the upper echelons of the Trump administration’s Justice Department to basically, not only try to get the investigation diffused and make it go away, but also to essentially smear the federal prosecutors in Texas, who are running this investigation, basically, accuse them of all sorts of unethical behavior and use the connections that Jones Day had within the Trump administration to resolve this federal investigation.
And it basically worked. There had been a criminal investigation that Obama was very close to getting indicted. And in part by tapping into this Jones Day alumni network inside the Trump administration, the criminal investigation was basically shut down, and a similar investigation that had been going on for a long time into Walmart’s role dispersing opioids was– it wasn’t shut down, but it was delayed by years. And it was so frustrating to some of the federal prosecutors who by the way, some of them had been appointed by Trump, so these are not dyed-in-the-wool Democrats at all. Some of them ended up resigning from office.
Even some people in the Justice Department in Washington, whom I spoke with, said that they were really, really surprised and upset, I think, about the way that Jones Day was able to tap into this alumni network and essentially do an end run around the normal processes that would be involved in a federal criminal investigation. And from Walmart’s standpoint, Jones Day, its law firm, that’s an excellent outcome for them. And I think that is a relationship that has probably grown stronger between Jones Day and Walmart as a result of the law firm’s ability to tap into that alumni network. So you’re right, it does, in that sense, it pays very clear financial dividends to the law firm.
Jeff: Has Jones Day used this kind of power and political influence in a way that is more blatant or more excessive than other big law firms? Places like Paul, Weiss, or Skadden, or Baker [McKenzie]. Has he used it in a more aggressive way?
David: No, I wouldn’t say more aggressive. I think the theme I’m trying to get at is that while I’m focusing on Jones Day, to a large extent, I’m using Jones Day as something that’s emblematic of the entire legal industry these days, which has become just not only focused on money, but so focused on the raw exercise of power that concepts like truth and fairness are often left by the wayside. And I think what differentiates Jones Day a bit is the degree to which they managed to essentially have dozens of their senior lawyers embedded throughout the Trump administration, which was really unprecedented.
You see the clear pattern in both Democratic and Republican administrations of partners at big corporate law firms taking on senior roles in various government agencies, in particular in the Justice Department. And that’s a pattern that’s been going on for decades. I think there’s a lot of people who have some very valid concerns about the conflict of interest that that creates, and just the attitude that it fosters among people inside the government where they have divided loyalties, I think, between taxpayers who they’re supposed to be representing, and the private parties, who they previously represented in corporate law firms, and who, in many cases will go back to representing.
The difference [was] that Jones Day had so many people in so many different parts of the government, in a way that even Republicans say was virtually unprecedented. There were a dozen or so employees within the White House Counsel’s Office and elsewhere in the White House itself under Trump and the Justice Department. And you mentioned the Solicitor General Noel Francisco, but they also had a bunch of deputy and assistant Attorney Generals too who ended up in this Walmart case that I mentioned, getting directly involved.
They had senior people at the Commerce Department, at the Federal Energy Regulatory Commission, the Consumer Product Safety Commission, on and on the list goes. So that’s something that a firm like Paul, Weiss, which is liberal, that’s the kind of influence for Skadden, which also has some ties with both parties. That’s the kind of influence and network that law firms like that have only been able to dream of.
Jeff: What is the relationship or was the relationship between the Federalist Society and Jones Day? The relationship between Brogan and Leonard Leo?
David: There’s a lot of overlap, is the bottom line. I don’t think there’s any formal relationship but it manifests itself in a bunch of different ways. The top lawyers at Jones Day, by and large, are members of the Federalist Society, which I’m sure your listeners know this, but just in case, the Federalist Society is devoted to getting more very conservative judges on the federal courts, primarily. And I think Don McGahn, who was a Jones Day partner and is now again a Jones Day partner, was Trump’s first White House Counsel. And he is a dyed-in-the-wool Federalist Society member.
And he has boasted that everyone he brought with him from Jones Day and elsewhere, to go work in the White House Counsel’s Office, this is dozens of lawyers, every single one of them was a member of the Federalist Society. And he once said at a Federalist Society event, it’s this joke where he would say, “People grumble that we outsource the job of selecting judges to the Federalist Society.” Then the punch line is, “We didn’t outsource it, we insourced it. Ha-ha.” So there’s a very close relationship between Jones Day and the Federal Society. And Jones Day would host a lot of Federalist Society events at their offices right at the foot of Capitol Hill in Washington. Jones Day partners, including Don McGahn, Noel Francisco, and others are regular speakers of Federalist Society events.
And as you mentioned in the intro, Justice Scalia, I think his only job in the private sector was at Jones Day. And he spent years in academia, obviously, and the executive branch under different presidents and then obviously became a judge, but he was a lawyer for Jones Day for years. And Scalia is one of the people who helped found the Federalist Society. And so, the network here is very tight. And all these people are very closely aligned and have a lot of overlapping, not just professional and philosophical links, but social links as well. And they’ve clerked together often for Scalia. A lot of them socialize together. So it’s really a hand-in-hand relationship.
Jeff: How has the fraying of Trump’s relationship with Don McGahn impacted Jones Day’s relationship with the Republican Party in general?
David: I don’t think it’s had a negative impact, that’s for sure. McGahn obviously famously clashed with Trump and famously cooperated with the Mueller investigation, which led to a falling out with Trump. But McGahn left the White House toward the end of 2018. Jones Day continued to represent the Trump campaign until and through the 2020 election. So there was no discernible… there [were] some news articles that were written at the time saying Trump was pissed off with Jones Day. That did not appear to have any discernible impact on the actual business relationship between Jones Day and the Trump campaign in 2020.
And if anything, Jones Day’s reach within the Republican Party and with the candidates on the right, has only gotten more extensive. You can look at Federal Election Commission filings, it shows the money that candidates are spending on, among other things, their law firms, and Jones Day is representing a who’s who of the American right in the 2022 cycle. It ranges from Dr. Oz to Herschel Walker, a PAC supporting Herschel Walker in Georgia, and then some moderates as well, like Susan Collins and Kevin McCarthy, the House Minority Leader. There’s a whole long, long list of people that they are representing. And so their influence, if anything, seems to be growing, not shrinking.
And to me, the big question is, basically, which candidate Jones Day will align itself with in the 2024 presidential cycle. And obviously, there’s a lot of speculation about whether Trump will throw his hat into the ring. Jones Day refused to tell me whether they would represent his campaign again. I think they have a relationship with DeSantis. Governor DeSantis’ chief of staff in Florida is a recent Jones Day alum. I think there’s going to be a lot of demand for the law firm. There already is in this election cycle, and I think there’s going to be even more in 2024.
Jeff: What was the role– talk about the role that Jones Day played in stop-the-steal and the perception, and Trump’s rhetoric about the election being stolen.
David: So Trump in 2020 was obviously, even before the election, was engaging in a lot of rhetoric warning about [how] the election is going to be rigged, mail-in voting, absentee voting is an open invitation to fraud. And all of this, of course, is nonsense, not substantiated. In fact, there’s no valid reason to be concerned about that issue, because there’s just no track record of it at all. And so within Jones Day, as Trump’s rhetoric intensified, and again this is not in the fall 2020, this is earlier.
A bunch of lawyers at the firm, including some very senior ones who were working on the Trump campaign in their capacity as John Taylor’s, started voicing concerns within the firm and to the firm’s leaders, including Brogan, about how dangerous some of this rhetoric was. And warning that there’s a chance that the law firm was going to either literally get sucked into making these dangerous arguments or just by association with Trump was going to suffer serious reputational damage.
And the law firms’ leaders, for reasons I don’t fully understand, basically brushed aside those concerns and said, “We’re going to stick with this client no matter what. And if our reputation gets banged up a little bit, apparently so be it.” So Shortly before the election in the fall of 2020, there was some litigation in Pennsylvania, which was shaping up to be probably the most important swing state in the election, where the Republican Party was trying to make it harder for people’s mail-in ballots to be counted. There was basically an issue where, because the mail service at the time with the pandemic was going so slowly, there was a concern voiced by the state Supreme Court in Pennsylvania that if mail-in ballots had to be accepted by Election Day, there was a substantial probability that people who had voted validly their votes would not be counted because the mail service was so slow.
So the Pennsylvania Supreme Court basically ordered a three-day extension so that if your ballots arrived within three days of Election Day, they would still count. And Jones Day led the legal charge fighting that and one of their arguments was that if you allow a three-day extension like this, it’s an open invitation to people voting after Election Day and therefore having votes that are essentially illegitimate.
And there’s some other litigation in Pennsylvania as well that Jones Day was leading the charge on, where they weren’t explicitly warning about the risks of a tainted election, but they were raising the specter of fraudulent or illegitimate voting, playing a role in the election. And so obviously, the election happens, and Pennsylvania, Trump initially had a lead there, but that was because so many mail-in ballots hadn’t been counted, and everyone knew those ballots would be skewing heavily Democratic.
And so Jones Day’s litigation in Pennsylvania ended up being probably the most prominent effort by a major law firm to essentially raise questions about and make it harder for votes to count due to unsubstantiated concerns about the legitimacy of those votes. And so Jones Day, just to be clear, was not involved in any of the frivolous and lunatic lawsuits filed by people like Sidney Powell and those groups all over the country.
They did not engage in any of that litigation, but the fact that they were doing this litigation in Pennsylvania, to a lot of people within the firm, including a lot of senior partners at the firm, they found this extremely upsetting and thought basically that the law firm was casting its lot with people who were trying to suppress votes. And it led to a pretty unusual uprising within the firm.
And I think ended up fulfilling the prophecy or fulfilling the concerns that a lot of people had voiced months earlier within Jones Day, that the association with Trump and the act of zealously representing him and his Republican Party in election cases risked really damaging the law firm’s reputation in a way that could cause a lot of harm for a long period of time. And I think that ended up being the case.
Jeff: To follow on to that, did it damage their reputation? After all, the law firm had represented, as we mentioned the Catholic Church, it represented the parts of the gun industry, big tobacco, Russian oligarchs. Representing Trump in this just seems like another notch really.
David: That’s a fair point. And I think it’s certainly hard for me as an outsider to say with any sort of precision or specificity, the degree to which the work for Trump and on these Pennsylvania election cases actually had a substantial effect on the firm’s clients or on their ability to recruit employees, [or] anything like that.
And what I’ve seen through my reporting is that there have definitely been some big clients that have walked away from the firm or at least reduced the work they’re doing with the firm as a result of the association with Trump. And I think it’s certainly made it harder in some quarters for them to recruit law students. There’s been efforts to convince law students to not do interviews at Jones Day, things like that.
But, I think, on the other hand, especially in terms of corporate representation, the firm has done all that it can to spin this to its advantage and basically say, “Look, yes, this work was unpopular, but that is what being a lawyer is all about. We were zealously representing our client, and you, big company, can take a lot of solace in the fact that we stood by Trump. And even though he was the most polarizing person on the planet. And that means that we will stand by you when you’re on the receiving end of a lot of bad publicity.”
And I think that, to be clear, is a little bit of a disingenuous argument because there is a huge difference between someone who is accused of wrongdoing deserving and being entitled to legal counsel, which is undoubtedly true. And the work that they were doing for the Trump campaign where Trump wasn’t accused of, well, Jones Day was not representing Trump as someone who was accused of wrongdoing. They were representing him as he sought to win elections and use any means necessary to hold onto power.
And that’s just a lot different than the right to counsel that I think is envisioned in the Constitution and is envisioned by most legal scholars or normal people as well. But I think it’s a little bit of a flawed argument they’re making, but I think it’s entirely possible that with a lot of businesses or a lot of big companies, it might be an effective argument to make. So, [the] bottom line is it’s very hard for me to say what tangible impact this has had on Jones Day’s business affairs or their reputation.
Jeff: Given how far Jones Day has pushed the envelope here, how deeply their tentacles have been meshed in an administration, in politics, can we expect to see from firms like Paul, Weiss, and others on the other side, an equal measure of their efforts in this area and Jones Day having set the example?
David: That’s a really good question, and I don’t know the answer to that. The legal industry is weird because, on the one hand, I think most lawyers who work at big law firms probably are on the left. Not far left, but on the moderate left side of the political spectrum, and so, therefore, more likely to be aligned with Democratic politicians and Democratic causes.
And the irony there, of course, is that while they espouse these political views, they are representing big companies that are doing things that I think generally are not very well aligned with the Democratic philosophy and often are hurting the environment or hurting their workers or hurting consumers. And in any case, I think there are far more firms that would be more naturally inclined to align themselves with the Democratic Party than there are firms like Jones Day on the right.
And so I think it’s going to be harder for a firm like Paul, Weiss, for example, to develop this kind of dominant position on the left that Jones Day has developed on the right for no other reason other than that there would be a lot more competition on the left than there would be on the right. And so I think it would be harder to become a hegemon on the left the way Jones Day has become on the right.
Jeff: There’s also the kind of shamelessness – I don’t know any other word that’s appropriate – with respect to the things that Jones Day is willing to take on, like Purdue Pharma, like Fox in its sexual harassment battles, et cetera. They will take on all comers in these kinds of cases.
David: Yes. And to a certain extent, look, that’s what lawyers are supposed to take on clients that are in trouble. What I find more troubling than the fact that they’re just taking on these clients in the first place, is the lengths that they will go to to help those clients and the tactics they will use. So it’s things like bullying or intimidating witnesses and smearing plaintiffs sometimes, engaging in abusive practices, coaching witnesses, things like that that are… Everyone has the right to counsel, no one has the right to those services though.
And those are things that Jones Day has been accused of engaging in and not just by plaintiff’s lawyers or liberals in the media. Those are accusations they’ve faced from federal judges, federal regulators, from prosecutors, and it’s documented. And that’s one of the things I spent a lot of time researching, was really looking into not just how they represent companies that you or I might not like or that make products that you or I might not like, but they’ve engaged in practices that I think a normal person or a legal expert would agree are, if not improper, then are certainly coming up close to that line.
And again, in fairness to Jones Day, I do not think that is something that is peculiar to them. I think this is a broad pattern that has emerged across the legal industry in recent decades. And you see it at Jones Day, but you also see it at firms like Paul, Weiss or Gibson Dunn or Baker McKenzie. The list goes on and on and on. And in some cases, the conduct I’ve seen at other firms in some of these cases is actually worse than at Jones Day.
And this has really become something that’s endemic to the legal industry. And one of my goals of this book was to really hopefully start a bit of a conversation, at least in the legal community, about the right role for lawyers and their law firms to be playing in these hot-button issues and whether there is a way to ethically represent companies or individuals that we find polarizing without crossing these additional lines.
Jeff: And finally, David, is there a danger for Jones Day and any of these other firms that may follow in their footsteps in some respects that by aligning themselves so tightly with a particular political cause or set of causes, that if those causes go out of favor with the electorate it has a profound effect on the law firm?
David: Yes, I think that is a risk. And I think that’s the argument that a lot of Jones Day lawyers were making as the firm got more and more enmeshed with Trump and with some of these Republican Party initiatives. This might make sense to the firm’s leaders right now and it might make sense just in general to be representing any client that comes our way, but is this going to severely affect our reputation in a way that will really make it harder for us to attract new clients? Again, I’m not sure what the actual answer to that question is, but I think it’s something that a lot of people inside the law firm have been very concerned about.
Jeff: David Enrich, his book is Servants of the Damned: Giant Law Firms, Donald Trump and the Corruption of Justice. David, it’s always a pleasure. I thank you so much for spending time with us here on the WhoWhatWhy podcast.
David: Thanks for having me.
Jeff: Thank you. And thank you for listening and joining us here on the WhoWhatWhy podcast. I hope you’ll join us next week for another radio WhoWhatWhy podcast. I’m Jeff Schechtman. If you liked this podcast, please feel free to share and help others find it by rating and reviewing it on iTunes. You can also support this podcast and all the work we do by going to whowhatwhy.org/donate.