How a Corporate Law Firm Led a Political Revolution
The untold story of Jones Day’s push to move the American government and courts to the right.
Credit…Photo illustration by Cristiana Couceiro
Send any friend a story
As a subscriber, you have 10 gift articles to give each month. Anyone can read what you share.
By David Enrich
On a balmy Saturday night in June, Traci Lovitt hosted a 50th birthday party for her husband, Ara, at their 9,800-square-foot Westchester mansion overlooking Long Island Sound. The couple met while clerking for Supreme Court justices: Traci for Sandra Day O’Connor, Ara for Antonin Scalia. These days, Ara worked in finance. Traci was a top partner at — and a contender to one day run — the international law firm of Jones Day, best known for representing Donald Trump’s presidential campaigns. To serve as M.C. for the event, the Lovitts flew in Richard Blade, the veteran disc jockey Ara listened to while growing up in Southern California. But Blade wasn’t the party’s biggest star. That distinction belonged to Justice Amy Coney Barrett.
One day earlier, Barrett and four of her colleagues on the Supreme Court overturned Roe v. Wade, ending the constitutional right to abortion. Now she was wearing a pink dress and sitting at a flower-bedecked table under a tent on the Lovitts’ lush lawn. Barrett clerked for Scalia in the same session as Ara, in 1998 and 1999, and also became friends with Traci, jogging together around the National Mall after work. (When Trump nominated Barrett to the Supreme Court in 2020, Traci wrote to senators, praising the judge’s fair-mindedness and commitment to the rule of law.) But the connection to the court ran deeper than that. Scalia had spent years at Jones Day in the 1960s. And Traci ran an elite practice inside the firm that was focused in part on arguing cases before Barrett and her colleagues.
Guests at the Lovitts’ estate danced to Blade’s beats until 1 a.m. At one point, an attendee spotted Barrett chatting with Noel Francisco, another Jones Day partner, who had himself clerked for Scalia the year before Lovitt and Barrett. Francisco left the firm in 2017 to become Trump’s solicitor general, responsible for representing the government before the Supreme Court, and returned in 2020, eventually taking over Jones Day’s enormous Washington office.
Now his and Lovitt’s underlings were appearing regularly before the court. In one recent case brought by Jones Day, the court killed the Biden administration’s moratorium on home evictions during the pandemic. Less than a week after the Lovitts’ party, in another case Jones Day worked on, the court would severely limit the Environmental Protection Agency’s regulation of power-plant emissions.
For much of its history, Jones Day was a juggernaut in the field of corporate litigation. A global goliath with more than 40 offices and about 2,500 lawyers, it raked in billions a year in fees from tobacco, opioid, gun and oil companies, among many other giant corporations in need of a state-of-the-art defense. More than most of its competitors, the firm had an army of litigators who had perfected the art of exploiting tiny legal wrinkles, of burying outmatched opponents in paperwork and venue changes and procedural minutiae. But over the past two decades, Jones Day has been building a different kind of legal practice, one dedicated not just to helping Republicans win elections but to helping them achieve their political aims once in office. Chief among those aims was dismantling what Don McGahn — the Jones Day partner who helped run Trump’s campaign and then became his White House counsel — disparagingly referred to as the “administrative state.” To do that, the firm was bringing all the ruthless energy and creativity of corporate law to the political realm.
Jones Day lured dozens of young Supreme Court clerks, mostly from conservative justices, with six-figure signing bonuses and the opportunity to work on favored causes, including legal challenges to gun control and Obamacare. The firm allotted countless pro bono hours to aiding the needy — and also to assisting deep-pocketed right-wing groups as they fought against early voting and a federal corporate-oversight body.
Representing Trump’s 2016 campaign, Jones Day helped him solidify Republican support by pledging to pick federal judges from a list that was vetted in advance by the law firm and the Federalist Society. When Trump won, a large fleet of Jones Day lawyers sailed into his White House, the Justice Department and other parts of his administration. But the biggest impact was on the judiciary. Trump delegated the task of selecting federal judges to McGahn, who — working closely with Senator Mitch McConnell, the majority leader — placed well over 100 conservatives on the federal courts, including several who had recently worked at Jones Day. Even after rejoining Jones Day in 2019, McGahn continued to advise Senate Republicans on judicial strategy.
It is not uncommon for partners at corporate law firms to dabble in politics. Nor is it rare for a firm itself to throw its weight behind causes on the left or the right. One of the country’s richest firms, Paul, Weiss, for example, has long staked out liberal stances on the public issues of the day (even as it rakes in fees from companies that undercut those ideals). What sets Jones Day apart is the degree to which it penetrated the federal government under Trump and is now taking advantage of a judicial revolution that it helped set in motion.
The power of that revolution, which is spreading to courtrooms and statehouses around the country, is now on vivid display. Even with Democrats controlling the White House and Congress, the Supreme Court has been on a rightward tear. In its most recent term, Trump’s three appointees — the first two handpicked by McGahn and the third, Barrett, plucked by him out of academia for the federal bench — helped erase the constitutional right to abortion, erode the separation of church and state, undermine states’ power to control guns and constrain the authority of federal regulators. Jones Day had a hand in some of those cases, and the firm has telegraphed that it is eyeing additional legal challenges in line with its leaders’ ideology.
Jones Day’s influence seems poised to grow. This year, it has been collecting fees from a remarkable assortment of prominent Republican players: a Trump political-action committee; moderates like Senator Susan Collins; Trump allies like Dr. Mehmet Oz; hard-liners like Representative Kevin McCarthy of California, the House minority leader, and Senator Ron Johnson of Wisconsin — not to mention an assortment of super PACs supporting fringe candidates like Herschel Walker, the former N.F.L. star who is running for a Senate seat in Georgia. Francisco recently represented former Attorney General Bill Barr before the House committee investigating the Jan. 6 attack on the Capitol. McGahn recently began representing Senator Lindsey Graham as he fights a grand jury subpoena to testify about Trump’s efforts to overturn the election results in Georgia. The chief of staff to Gov. Ron DeSantis of Florida is a recent Jones Day alum. The next Republican presidential administration — whether it belongs to Trump, DeSantis or someone else — will most likely be stocked with Jones Day lawyers.
Founded in Cleveland in 1893, Jones Day was at the vanguard of an era of breakneck expansion in the legal industry. In the 1970s and ’80s, it was one of the first law firms to open multiple offices in the United States and then overseas. It was a tireless, and extremely successful, defender of some of America’s worst corporate actors. The firm helped R.J. Reynolds sow doubts about the dangers of cigarettes. It helped Charles Keating’s fraud-infested savings-and-loan association fend off regulators. It helped Purdue Pharma protect its patents for OxyContin. But it didn’t become a conservative machine until Stephen Brogan took over as managing partner in 2003.
Brogan, the son of a New York City police officer, joined Jones Day straight out of the University of Notre Dame’s law school in 1977 and, aside from a two-year stint in the Reagan Justice Department, has worked there ever since. A number of Brogan’s allies said the key to understanding him and his politics was through his faith. “Brogan is extremely conservative, hard-core Catholic, and that is the bedrock of who he is,” one of his Jones Day confidants told me. Brogan brought on a series of high-profile devotees of the Federalist Society — including leading Reagan and Bush administration lawyers like Michael Carvin and Noel Francisco — to work in the firm’s issues-and-appeals practice, which became a sort of in-house conservative think tank. Even as most of the firm’s lawyers remained focused on bread-and-butter work for big companies, Jones Day took on a growing list of ideologically charged cases and causes, including efforts by the ultraconservative Buckeye Institute to prevent the expansion of early voting in Ohio and challenge the legitimacy of the Obama administration’s newly inaugurated Consumer Financial Protection Bureau.
By 2014, when a trio of Republican lawyers at Patton Boggs, a Washington law firm that was in financial trouble, began looking for a new home, Jones Day was a natural fit. It was huge, it had a thriving Washington office and its leaders were conservative. Plus, the Patton Boggs crew — McGahn, Ben Ginsberg and William McGinley — would fill a void. While Jones Day had built up a formidable practice advising companies on how to navigate the federal bureaucracy, the firm didn’t have a practice advising politicians on how to navigate election and campaign-finance laws. And without the relationships that came from helping people win office, it was harder for Jones Day to wield influence on Capitol Hill and in the White House.
It helped that Ginsberg, who had been the top lawyer on presidential campaigns by George W. Bush and Mitt Romney, had known Francisco and Carvin for years. During the interview process, Ginsberg told Francisco that he recognized that Jones Day, despite its conservative reputation, probably employed a lot of Democrats. Would it be a problem to bring in a team that would represent polarizing Republicans? It would not, Francisco assured him. Indeed, promoting conservative principles was becoming part of the firm’s marketing pitch. “The government’s tentacles invade virtually every aspect of what our clients do,” Francisco said in a Jones Day promotional video in 2015. “The job of a lawyer and the job of courts is to ensure that the federal government lives within the limits that our Constitution sets, and I love making sure that those lines are enforced.”
Ginsberg and McGahn were well known throughout the Republican establishment, and several would-be presidents soon came to them seeking counsel; Govs. Scott Walker of Wisconsin, Rick Perry of Texas and Chris Christie of New Jersey would become clients. McGahn — who had recently served on the Federal Election Commission, watering down campaign-finance rules and slowing the agency’s decision-making in what he said was an effort to make it more responsive to the people and groups it regulated — also represented a who’s who of other G.O.P. power players: the Republican National Committee, the National Rifle Association, the billionaire Koch brothers.
There was at least one other key client: Citizens United. The group, famous for its successful Supreme Court challenge of campaign spending restrictions, was run by Dave Bossie, an influential right-wing activist. One day in late 2014, Bossie and McGahn were on the phone, batting around ideas about which presidential campaigns the Jones Day lawyers should work for.
The Trump Investigations
The Trump Investigations
Numerous inquiries. Since former President Donald J. Trump left office, he has been facing several civil and criminal investigations into his business dealings and political activities. Here is a look at some notable cases:
The Trump Investigations
Classified documents inquiry. The F.B.I. searched Mr. Trump’s Florida home as part of the Justice Department’s investigation into his handling of classified materials. The inquiry is focused on documents that Mr. Trump had brought with him to Mar-a-Lago, his private club and residence, when he left the White House.
The Trump Investigations
Jan. 6 investigations. In a series of public hearings, the House select committee investigating the Jan. 6 attack laid out a comprehensive narrative of Mr. Trump’s efforts to overturn the 2020 election. This evidence could allow federal prosecutors, who are conducting a parallel criminal investigation, to indict Mr. Trump.
The Trump Investigations
Georgia election interference case. Fani T. Willis, the Atlanta-area district attorney, has been leading a wide-ranging criminal investigation into the efforts of Mr. Trump and his allies to overturn his 2020 election loss in Georgia. This case could pose the most immediate legal peril for the former president and his associates.
The Trump Investigations
New York State civil inquiry. Letitia James, the New York attorney general, has been conducting a civil investigation into Mr. Trump and his family business. The case is focused on whether Mr. Trump’s statements about the value of his assets were part of a pattern of fraud or were simply Trumpian showmanship.
The Trump Investigations
Manhattan criminal case. Alvin L. Bragg, the Manhattan district attorney, has been investigating whether Mr. Trump or his family business intentionally submitted false property values to potential lenders. But the inquiry faded from view after signs emerged suggesting that Mr. Trump was unlikely to be indicted.
“What about Trump?” Bossie asked.
“What about Trump?” McGahn replied, skeptical.
“No, he’s really thinking about running.”
“He says this every four years. Isn’t he a Democrat from New York?”
“He’s gotten older; he’s conservative,” Bossie answered. “I think you guys would hit it off.” McGahn, as he recalled in a 2020 speech at Widener University in Pennsylvania, trusted Bossie and soon met Trump in New York. At the end of their talk, Trump signed a book for McGahn’s son: “You have a wonderful father,” he wrote. McGahn was impressed.
Trump at the time was attacking free trade and the establishment, and much of what he was saying resonated with McGahn. “He and I shared the same view about what was going to matter in 2016,” McGahn told me, “and it wasn’t what the D.C. consultants thought was going to matter.” Trump was looking for a well-regarded lawyer to show the world that his fledgling campaign should be taken seriously. McGahn agreed to take him on.
From an early age, McGahn was motivated by what he later described as “an aversion to concentrated power.” That gut-level feeling hardened into conservatism in college, when he watched the Senate’s Supreme Court confirmation hearings for Robert Bork. McGahn was galvanized by what he saw as the Democrats’ disgraceful treatment of a respected conservative judge. By the time McGahn hopped aboard the Trump campaign in 2015, his views had evolved into a simmering obsession with liberal courts and the administrative state. Unelected judges, in his view, were regularly ruling in favor of unelected bureaucrats, who were trampling the rights of private citizens and companies.
McGahn was representing a long-shot candidate, but he had his eyes on a very big prize. Trump was not burdened by strong convictions on many of the major issues of the day. One blank spot involved the judiciary. Here was a rare chance for a lawyer to stamp his own beliefs — a preference for conservative judges who would rein in federal agencies and rigidly hew to the Constitution as it was written — onto the agenda of a presidential contender.
In early 2016, McGahn, traveling with the Trump team in Iowa for its caucuses, got word that Jonathan Bunch, who at the time was the head of external relations at the Federalist Society, wanted to speak to someone at the campaign. Perhaps more than any other interest group, the Federalist Society was a kingmaker in Washington’s conservative circles, serving as a feeder for the federal courts and as a gatekeeper for aspiring Republican politicians. McGahn, who was the president of the society’s local chapter in law school, called Bunch from his hotel room overlooking downtown Des Moines. Bunch explained that the group was surveying the major candidates and wanted to know if the Trump camp had given much thought to the sorts of judges he might nominate if elected. “You have nothing to worry about with us,” McGahn recalled assuring him.
That March, about two dozen Republicans — senators, House members, lobbyists, Leonard Leo of the Federalist Society, among others — showed up at Jones Day’s neoclassical building on Capitol Hill for lunch. McGahn convened the session to help the conservative establishment gain comfort with the Republican Party’s unorthodox front-runner. The idea was that Trump would deliver brief remarks and then take questions. It had been only a few weeks since Antonin Scalia’s sudden death. Mitch McConnell had made clear that he would not allow a vote on anyone President Barack Obama nominated to replace him. The next president, therefore, would get an immediate vacancy to fill on the Supreme Court. McGahn and Trump had plotted about how to use this unforeseen development to shore up conservative support for his candidacy. Today they would roll out a key phase of their strategy.
After Trump spoke for a few minutes, Leo invited him to talk about judges. “Why don’t I put out a list publicly of people who could be the sort of people I would put on the Supreme Court?” Trump suggested, as McGahn later recalled. The room reacted with joy. (He and Leo have at times given divergent accounts of the fateful meeting; in Leo’s telling, McGahn had asked him to bring a list of names.) If Trump would publicly commit to selecting Scalia’s successor from an approved list, well, that would do a lot to assuage conservatives’ concerns about a guy who had previously supported abortion rights. The final list of potential Supreme Court picks would take months to come together — a team led by McGahn and Leo scoured the candidates’ court opinions — but it would become a crucial turning point for Trump’s campaign. “The list reassured a whole lot of Republicans,” McConnell explained at a Federalist Society meeting in Kentucky in 2019, appearing alongside McGahn. The creation of the list “became the single biggest issue bringing our side in line behind him.”
About a week after Trump won the 2016 election, McConnell called McGahn to talk strategy; there were more than 100 federal judicial vacancies, largely because McConnell had been refusing to hold votes on Obama’s nominees. (When Obama entered office, there had been roughly half as many unfilled judgeships.) It was widely expected that Trump was going to tap McGahn to be his White House counsel. Now the Senate majority leader advised McGahn to insist that the president assign judge-picking authority to him and him alone — a break from the tradition in previous administrations, where a group of experts tended to debate the merits, substantively and politically, of various candidates. Just do this yourself, McConnell advised. McGahn pitched the idea to Trump. Trump said sure.
McGahn was poised to wield immense power — and so was his firm. Apparently as a result of Jones Day’s immersion with the Trump campaign, and McGahn’s planned elevation to White House counsel, the firm’s lawyers soon became responsible for identifying and scrubbing candidates for many positions in the White House and the Justice Department. The work was unpaid. (Some Jones Day attorneys told me they objected to devoting pro bono hours to the Trump transition, but they were overruled.) Why was Jones Day willing to do it? In part, it seemed, because it provided the firm with a unique opportunity to seed a new administration with its own staff.
In the White House Counsel’s Office, McGahn surrounded himself with his old colleagues. Greg Katsas, a Jones Day partner who helped lead the Justice Department’s transition planning, would be his deputy. Annie Donaldson, who had followed McGahn from Patton Boggs, would be his chief of staff. At least three other Jones Day employees would be heading there, too. William McGinley landed the White House job of cabinet secretary. Jones Day attorneys occupied the upper echelons of the Justice Department and were perched near the top of the Commerce and Agriculture Departments. Agencies charged with regulating energy markets and the safety of consumer products would have commissioners from Jones Day. The Jones Day lawyer poised for the highest-ranking government post, aside from McGahn, was Noel Francisco, whom Trump nominated to be solicitor general. That meant the firm would have its recent partners planted in two of the most powerful legal jobs in the U.S. government.
Any new presidential administration draws heavily from the partnerships of major law firms, and Jones Day attorneys had served under Obama and other presidents (and would serve under President Biden). But what transpired at the dawn of the Trump era was an extraordinary transfer of talent from a single law firm to a new administration. Jones Day itself also seemed to double down on its partisan turn. In the spring of 2017, an email went out to partners saying that they were expected to sign a public letter endorsing Francisco. This was too much for some Jones Day lawyers, appalled by the Trump administration’s first two months, which included a ban on travelers from several Muslim-majority countries. One former partner told me this was the moment she began looking for a new job. “I felt like I was being conscripted into supporting an administration I didn’t believe in,” she said.
It soon became hard to distinguish where Jones Day’s interests ended and the Trump administration’s began. Cases the firm had argued from outside the government were now ones that could be decided from inside it. In 2012, for instance, Jones Day began a multifaceted attack on the Affordable Care Act as Obama was campaigning for re-election. One prong was lining up dozens of Catholic organizations to file lawsuits challenging Obamacare’s requirement that employer insurance plans cover the costs of contraception. Now, with a Trump administration stocked with former Jones Day partners, the suits were moot. McGahn’s office worked with the Justice Department to issue a rule in October 2017 saying that employers with religious objections to birth control could exclude contraceptive coverage from their health plans.
The benefits to all players were considerable. Jones Day and the Justice Department worked out a legal settlement: The litigation would be terminated, and the government would promise not to force the plaintiffs to provide contraceptive coverage. While Jones Day had said it was donating its legal services to the Catholic groups, the settlement included a provision in which the government would pay Jones Day $3 million to cover some of the costs it incurred. In addition to four Jones Day attorneys, the signature of a single representative of the U.S. government was affixed to the settlement agreement. His name was Brett Shumate. He was a deputy assistant attorney general in the Justice Department’s civil division. His boss was a recent arrival from Jones Day. Less than two years later, Shumate would leave the Justice Department and be hired as a partner in the firm’s Washington office. (Matthew Kairis, a Jones Day partner who helped negotiate the settlement, told me that he was not aware of Shumate being involved in the talks and that it was “silly” to connect this to his hiring.)
Jones Day had soon built a powerful network within the administrative state that McGahn and his colleagues so loathed. The 2020 census was approaching, and senior Trump advisers, including Steve Bannon and Reince Priebus, hatched the idea of asking people whether they were citizens. The apparent goal was to scare immigrants from participating in the census. That would reduce the recorded populations of parts of the country that leaned Democratic and thereby strip them of congressional seats. At the Commerce Department, of which the Census Bureau is a part, much of the legal work for justifying the addition of the citizenship question fell to James Uthmeier, who had recently arrived from Jones Day. The key was to have another government agency formally request that the question be included for nonpolitical reasons.
Source: Read Full Article