How lawyers from one giant DC firm influenced Trump's Supreme Court picks
Editor's note: Jones Day is an underwriter for NPR and has done work for NPR in the past.
While campaigning for president in 2016, Donald Trump famously cast himself as a Washington outsider, someone who would " drain the swamp" of special interests and cronyism. But New York Times journalist David Enrich notes that both Trump's candidacy and his administration were shaped, in no small part, by Jones Day, one of the most politically connected law firms in DC.
For much of Jones Day's history, it was a juggernaut in the field of corporate litigation, raking in billions a year in fees from tobacco, opioid, gun and oil companies, among many other giant corporations. But, as Enrich writes in his book, Servants of the Damned, the firm became particularly embroiled in politics during the Trump administration.
"They were more embedded in the Trump administration than any law firm I can think of in any past presidential administration," Enrich says. "Throughout the White House and the Justice Department, as well as other agencies, basically, everywhere you looked, you would find a once and future Jones Day lawyer."
Enrich points out that Don McGahn, a prominent Jones Day lawyer, left the firm to become Trump's White House counsel. McGahn assumed the responsibility of picking the judges Trump would nominate to the federal courts, including the Supreme Court.
"One of the core kind of tenets of McGahn's judicial philosophy was this real antipathy toward what he calls derisively 'the administrative state,'" Enrich says. "And one of the biggest results of that is that it translates into judges who no longer give nearly as much deference to the rights and authority of federal agencies as had been the norm."
Enrich says lawyers from Jones Day cycled back and forth between the Trump administration and private practice, where they would go right back to representing corporate clients — in some cases with interests before the Trump administration.
"The notion that this outsider trying to shake things up would turn to a firm like Jones Day to staff his administration and help pick his judges and things like that, it is really antithetical to that," Enrich says. "When I think of the swamp and I think when Trump thinks of the swamp, there are few swampier things than that type of inside baseball lobbying."
On the outsized role Jones Day played in the Trump administration
Starting in 2015, the law firm represented his campaign, and they did so through the 2016 cycle and then again the 2020 campaign, that was work that basically started on Inauguration Day of 2017. And so they were front and center on both of his presidential campaigns, but they were not representing him personally. ...
The White House counsel, Don McGahn, was a very prominent Jones Day lawyer, and he surrounded himself in the White House with several senior Jones Day partners and associates who he brought with him. At the Justice Department, the solicitor general, Noel Francisco, was once and future Jones Day partner. And in the upper echelons of both in the civil division of the Justice Department you had some of the people right beneath the attorney general were from Jones Day. You had someone at the Consumer Product Safety Commission, the Federal Energy Regulatory Commission, the Commerce Department, on and on the list goes.
On Jones Day accomplishing political interests once Trump was in office
Shortly after Trump became president, Jones Day lawyers, both inside the administration and outside the administration, those still at the firm, started accomplishing things that they had long sought to accomplish but had not been able to do. And the clearest example of this to me is a series of lawsuits that Jones Day had brought on behalf of a bunch of Catholic organizations that were basically challenging an important provision of Obamacare, the Affordable Care Act. ... One of the first things that [the Trump] administration does with the help of Don McGahn, is they basically say they're going to end an Obama administration policy that sought to require employers to provide contraception coverage for their employees, which was part of Obamacare. And this was the subject of the lawsuit. So right on the face, it represented a big win for Jones Day and its clients.
On Jones Day's political agenda
The law firm isn't a monolith, and I think it's important to kind of say that at the outset. And this is a law firm that has something like 2,500 lawyers in dozens of countries all over the world. And like any large organization or large law firm, there are employees and lawyers at Jones Day that have, I think, a wide range of political views ranging from far left to far right. What sets Jones apart is the degree to which the leadership of the firm is fairly uniform in their conservative thinking. ...
Their agenda ... ranged from lots of deregulation and really getting the government out of the affairs of businesses to a very large extent, and then also an agenda of what I think the right people on the right would call "religious liberty." And I think people on the left and to a certain degree, people in the center would say much dramatically eroding the separation of church and state in a way that allows religion to play a much more prominent role in public and political life.
On how Don McGahn, former Jones Day lawyer, ended up picking SCOTUS nominees for Trump
Shortly after Trump was elected, Mitch McConnell gave some advice to Don McGahn. The advice was that instead of relying on a committee at the White House to debate and pick nominees for the Supreme Court and other federal courts, McConnell's advice was, "Look, you should get Trump's permission to just do this by yourself. You alone should have the power to pick the judges that Trump will nominate." McGahn liked the sound of that. He proposed it to Trump and Trump when he offered McGahn, the job of White House counsel, readily agreed to this. And so McGahn, very quickly, before Trump even was sworn in as president, all of a sudden was sitting on this enormous power that was really quite unusual historically. And he was the one who would be picking the people that Trump nominated to all sorts of federal courts.
On McGahn going back to Jones Day after working in the Trump administration
He came right back, got a big promotion, got a bunch more money. And he was kind of the first in what would become a whole parade of people who went from the Trump administration back into the law firm. A lot of these were people who had started off of Jones Day, then went to the Trump administration and then returned. But there were also a lot of people who had not previously worked at Jones Day, had worked at maybe at other law firms. And with the return of McGahn, Jones Day became essentially a refuge for veterans of the Trump administration, who many of whom had really developed quite controversial backstories and had taken quite controversial and polarizing and legally dubious actions while in the Trump administration and therefore, I think, were pretty radioactive for many other big law firms. But Jones Day welcomed many of them with open arms.
On Jones Day taking advantage of the judicial revolution it set in motion
It's now bringing cases through the Supreme Court and through the lower courts that were basically made possible by this deluge of very conservative federal judges that are now on the benches of many courts. So just in the Supreme Court's past term, which was obviously one of the most radical and farthest reaching the Supreme Court terms, certainly of my lifetime, and Jones Day played pivotal roles in some of these cases. And I think the biggest one was the case, the West Virginia versus EPAcase that dramatically hemmed in the power of the EPA to regulate carbon emissions. And that was brought on behalf of the Jones Day client, a big coal company.
Jones Day was the law firm that basically ended the eviction moratorium during the pandemic that the Biden administration had imposed. And Jones Day, just reading the tea leaves and talking to their lawyers now, it's quite clear that they are plotting a wide range of attacks on the power of the federal government to oversee private businesses and private companies in a way that goes back to Don McGahn and his colleagues' hatred of the so-called administrative state. And they are now in a position to be able to much more forcefully advocate those positions and be successful in their advocacy — thanks to all of the judges that Trump, at McGahn's direction and with McConnell's support, managed to get on to virtually every federal court in the country.
Sam Briger and Seth Kelley produced and edited this interview for broadcast. Bridget Bentz, Molly Seavy-Nesper and Meghan Sullivan adapted it for the Web. Copyright 2022 Fresh Air. To see more, visit Fresh Air.