By Paul Barrett, Bloomberg Businessweek
When prominent lawyers take top jobs at the White House or the U.S. Department of Justice, they often bring along several attorneys from their firms. With the Trump administration, one firm—Jones Day — is taking that to an extreme. “I don’t know of a precedent,” says Theodore Olson, a solicitor general in the George W. Bush administration and a partner in the Washington office of Gibson, Dunn & Crutcher.
So far, at least 14 Jones Day attorneys have joined the Trump team, although some are awaiting Senate confirmation.
Donald McGahn II, the White House counsel and a former Jones Day partner, has hired at least six attorneys from the firm to work with him advising the president on ethics, executive orders, and judicial nominations. McGahn, a former chairman of the Federal Election Commission and the main bridge between Jones Day and the administration, has represented Trump since 2015, when the president was a long-shot candidate.
[caption id="attachment_42166" align="aligncenter” width="403"][Image “Donald McGahn, White House counsel. Photo by Albin Lohr-Jones/ Pool via Bloomberg” (src=https://bol.bna.com/wp-content/uploads/2017/02/don-mcgahn-e1486502651148.png)]Donald McGahn, White House counsel. Photo by Albin Lohr-Jones/ Pool via Bloomberg[/caption]
At Justice, at least four Jones Day lawyers have been named to prestigious posts, led by Noel Francisco, another former partner at the firm, who the White House announced on March 7 would be nominated as solicitor general, the administration’s chief advocate at the Supreme Court. Francisco’s post requires Senate confirmation. Other Jones Day attorneys have been appointed at the Commerce and Agriculture departments and the Federal Energy Regulatory Commission.
Despite some of its attorneys’ enthusiasm for serving in the Trump administration, Jones Day’s lawyers contributed only $7,422 to his campaign, according to the nonprofit Center for Responsive Politics. That compares with $267,899 given to Hillary Clinton.
A behemoth with more than 2,500 attorneys in 44 offices in 19 countries, Jones Day has raised its profile as a Washington powerhouse over the past dozen years. In a closely watched measure of status in legal circles, it employs more than 40 former Supreme Court clerks, including Francisco, who clerked for Justice Antonin Scalia.
[caption id="attachment_14074" align="aligncenter” width="387"][Image “Photo by Alex Wong/Getty Images” (src=https://bol.bna.com/wp-content/uploads/2016/04/GettyImages-72815109.jpg)]Photo by Alex Wong/Getty Images[/caption]
Jones Day’s revenue of $1.94 billion in 2015 ranked sixth among the top 100 firms in the American Lawyer’s most recent rankings. Partner compensation at Jones Day varies widely; the average take-home pay of just over $1 million earned a ranking of only 72nd.
The firm’s roots can be traced to the late 19th century in Cleveland, where it represented railroads, utilities, and Standard Oil mogul John D. Rockefeller. More recently its stable of clients has reached beyond Midwestern industrial and financial companies to include Chevron, Goldman Sachs, Reynolds American, Southern, Starbucks, Toyota, and Volkswagen. It also represents Bloomberg LP, the owner of Bloomberg Businessweek.
[caption id="attachment_39576" align="alignright” width="235"][Image “BLB Podcast Cover Art” (src=https://bol.bna.com/wp-content/uploads/2017/01/NEW-BLB-Podcast-cover-art.jpg)]Author Paul Barrett talks about Jones Day in the latest episode of the Big Law Business podcast.[/caption]
Rivals say Jones Day will benefit from its prominence in the administration. Firms such as Jones Day “generally get their lawyers back having had high-level government experience and boosted their name recognition,” Karen Dunn, a partner in the Washington office of Boies Schiller Flexner who served as an associate counsel to President Obama, said in an email. William Burck, a former deputy counsel to President George W. Bush and a partner in the Washington office of Quinn Emanuel Urquhart & Sullivan, said in an email that Jones Day gave up some of its top talent to the administration: “Noel Francisco is one of the best appellate lawyers in the country, and Greg Katsas, the deputy White House counsel, is a brilliant legal thinker.”
That could be a problem, Victor Schwartz, the head of Shook, Hardy & Bacon’s public policy practice in Washington, said in an email: “If too many key lawyers leave the firm at the same time, it is a little like a sports team losing major players.” Jones Day probably has a deep enough bench to weather the temporary departures. While McGahn and Bill McGinley, cabinet secretary in the Trump White House, were two of Jones Day’s top election law experts, Benjamin Ginsberg, the Republican éminence grise of the field, remains at the firm.
Jones Day’s managing partner, Stephen Brogan, and a spokesman didn’t respond to phone messages and emails seeking comment.
Political scandal poses another potential danger for law firm transplants. “There is always a risk that applies to any administration and any firm that controversy will taint members of the administration,” says Olson. In just its first two months, the Trump White House has gotten enmeshed in potentially explosive controversies concerning contacts between Trump associates and Russia and the president’s unsupported allegation that Obama tapped his phone in New York.
A less extreme but far more common hazard facing government attorneys with private firm backgrounds is the obligation to recuse oneself because of conflicts with the firm’s work. This occurred in the Trump administration’s biggest court case so far: the defense of the president’s first travel ban. Francisco, then the acting solicitor general, and Chad Readler, another Jones Day émigré and acting assistant attorney general, had to step aside in early February and allow a career Justice Department lawyer to defend the president’s order barring U.S. entry to people traveling from seven Muslim-majority countries.
The recusal became necessary when Jones Day lawyers back at the firm filed a brief on behalf of legal scholars who argued against the administration’s expansive claim of authority to bar certain aliens from the country.
The administrationultimately lost before the U.S. Court of Appeals for the Ninth Circuit in San Francisco. Trump has since issued an altered immigration order that’s been challenged in the courts—and could force more recusals.
The bottom line: Jones Day, a haven for conservative attorneys in Washington, so far has sent 14 lawyers into the Trump administration.
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