Giant Law Firms, Trump and the Corruption of Justice
I have enjoyed the drum-roll of books about Donald Trump’s antics when he was president. I really did want to know whether Trump was seriously thinking about firing son-in-law Jared and daughter Ivanka. There are endless treats such as this in Maggie Haberman’s “Confidence Man” and other genre dishes. I immediately realized I shouldn’t judge a book by its cover when I saw the title of Mark Leibovich’s book, “Thank You for Your Servitude,” a sober benediction to all those in the Trump tent who stood up and said nothing.
“A Very Stable Genius,” by Philip Rucker and Carol Leonnig seems to me one of the most thorough and compelling accounts of Trump’s legacy, but all books of the sort will inevitably leave us “hanging fire.” In their “Epilogue” to their book that addresses the current political crisis that Trump endowed, the authors raise the issue of Republicans speaking out against Trump’s transgressions. The authors write: “Yet the time was nearing to consider not merely the judgment of their party or the punishment from their president, but the fate of history.”
Much as I have enjoyed and learned from this book, I find the conclusion passive, punting a more robust conclusion to “the fate of history.” Perhaps this is an inevitable punt as the current GOP largely cannot find the judgment zone and the shamed ex-President continues to rain down punishment like some spent god.
I have written a bunch of books, though not about politics, and understand the “denouement” of a drama can be very untidy. But, as my mother often said, in her sharp British accent, “That is not the half of it.”
I never really understood what other “half” looked like for my mother, other than it was what we ignore, overlook or push into the shadows. Certainly, when writing a book, a lot of information must necessarily be pushed into the shadows. Book length, tone and point-of-view are as much commercial as creative considerations. Perhaps the character Trump is as much as a cloud as shadow, hanging over New York City and then the U.S., first as huckster, then politician who seemed to introduce a pathology into the marketplace, resurrecting all the demons that divide Americans.
There is no lack of opinions about this man. The world seems to hear from everyone, that is, except psychologists who might shed some light on the dark political theater that dominates our days and perhaps bedevils our nights. Of course, there is a story to this reticence that dates back to 1964 and Barry Goldwater’s presidential campaign against Lyndon Johnson. “Fact” magazine polled a selection of psychologists about whether Goldwater was fit to serve as president. The recipients responded at full bore, with some seeing in Goldwater a similar pathological makeup as Hitler, Castro, Stalin and others. Goldwater sued the magazine for libel and won. Then the American Psychiatric Association announced ‘the Goldwater Rule” that forbade psychiatrists from commenting on a person who they had not analyzed in person. Of late Bandy X. Lee, who until recently was a psychology professor at the Yale Medical School, has publicly argued that diagnostic practices have changed, so a mandatory personal interview no longer holds. In 2019 Dr. Lee and others unsuccessfully urged the House Judiciary Committee to consider Trump’s mental condition within the impeachment process. The American Psychiatric Association mandate seems to have held. That the organization receives federal funding just complicates the matter and the optics.
This is probably not the time to go all-Hamlet about the rot in Demark and current applications in our fair land. Something is certainly afoot when lies, illogic, absurdities, and election denials are readily associated with the GOP. Is this play, theater and mere projections for media and base consumption? Does demonizing the Other, the Outsider, and the immigrant train play nicely to those among us who feel threatened? Or are we witnessing a growing fascism in the country, allied with elements of a right-wing male theocracy in which women are subjugated, losing control over their bodies?
But what if all this is marketplace noise, conscious or unconscious expressions of fundamental societal change; or political theater and a meme machine to keep a country engaged, distracted while our center is being deconstructed from within by existing levers of powers, especially the courts? What happens when our laws and legal system become instruments of our division and decay? What happens if our courts are bought and sold?
“Servants of the Damned: Giant Law Firms, Donald Trump, and the Corruption of Justice” by David Enrich is a deep, inside look at the banking, legal and political systems that gave rise to Donald Trump. It will certainly provide fodder to those who believe the Supreme Court’s links to the Federalist Society and prominent law firms are widespread, entrenched and dangerous. This book by Enrich, Business Investigations Editor, New York Times, brings fresh and telling arguments to bear on the issue. In my opinion it brings a perspective that is badly needed at a time that the Trump influence is often treated as anecdote and fodder for the next news cycle. “Servants of the Damned” provides stunning evidence that Trump is merely the most recent incarnation of a most profound and dangerous corruption of justice.
One central “character” in this tale is the Jones Day law firm, launched in Cleveland in 1893 and a century or so later found itself well-positioned at Trump’s inauguration in 2017, with Don McGahn as the President’s lead attorney and a dozen other lawyers from the firm lined up for jobs in the White House, Department of Justice and other federal agencies. There is a tale to tell. In the author’s words: “Almost exactly four years after the crowd had gathered on Jones Day’s top floor to celebrate its lawyers’ migration into the Trump administration, a much larger crowd assembled nearby. If anyone had been on the Jones Day’s rooftop on the afternoon of January 6, 2021, they would have enjoyed a splendid view of a violent mob storming the Capitol — the predictable culmination of a president whom Jones Day had helped elect, an administration the firm’s lawyer had helped run, and an election whose integrity the firm had helped erode.”
Enrich describes in rich detail Jones Day’s modest beginning in Cleveland, doing the usual hustle, protecting clients like the John Rockefeller Standard Oil Company after gas tanks exploded killing more than one hundred and thirty people and causing widespread damage. This seems a marker, and a starting point. Much of the early part of the book is about the changing business of law in America and Jones Day’s efforts to build an international brand channel with some of the most promising and well-placed lawyers in the land.
For much of American legal history law firms weren’t considered real businesses and the “legal industry was hardly an industry.” In most law firm salaries weren’t very competitive, recruiting employees was understated and “poaching lawyers was simply not done.” But as Jones Day’s ambitions grew, so did their business acumen. Antonin Scalia was hired in this spirit. The law firm would be a stepping stone on Scalia’s way to the Supreme Court. Jones Day would follow suit, merging in 1967 with a Washington DC firm just in time to benefit from legal work associated with an era of government regulation, courtesy of President Lyndon Johnson and Ralph Nader.
The legal business continued to change. A small firm in Arizona serving impoverished communities took out an ad in a local newspaper to promote its services. At first the newspaper objected, citing a mention of “divorces” in the ad that was against newspaper policy, then recanted. The backdrop to this event was the long-held position of the American Bar Association about indirect ads in newspaper to promote a legal service would “lower the tone of our high calling and are intolerable.” This issue finally reached the Supreme Court in June 1975 with Chief Justice Berger ruling that law firms might be “learned,” but they are also a business. By 1985 forty law firms had employed marketing directors.
Jones Day principals understood that a new day was dawning in the legal profession and that the only acceptable response was accelerated growth. The company was already in L.A., Columbus, Ohio and Dallas. President Reagan’s deregulation programs provided further incentive. An Austin office was added to the company landscape. The company executives talked about “shedding the traditional lawyer mentality and thinking more like investment bankers.” Globalization would be inevitable. A New York office would serve as the port-of-call for business from Europe.
By now Jones Day was the second largest law firm in the country. And its client list became more robust and noteworthy. The company had defused lawsuits and federal investigations for Firestone Tire in Ohio regarding exploding car tires. In early 1985, a time when the tobacco industry was facing increased legal scrutiny, Jones Day took on R.J. Reynolds as the lead litigator with the simple defense of “blame the victim,” a strategy that proved successful.
Author Enrich notes: “For the law firm, the rewards were obscene. In 1985, when Jones Day took on RJR as a client, the tobacco company was spending a total of about $1 million a month on legal fees, only a fraction of which was going to the firm. Thirteen years later, RJR was paying Jones Day alone $7.8 million in a typical month — or nearly $94 million a year.” This was the reason Jones Day could continue to grow at such a clip.
Jones Day continued to look at new business opportunities, including the savings-and-loan industry that looked attractive due to the hot housing market, In the chapter “Aiding and Abetting,” the author notes that the law firm was sued for activities in this sector. “In 1990, the Federal Deposit Insurance Corporation sued Jones Day for negligence, malpractice and having ‘aided and abetted’ executives in illegal transactions at two Texas thrifts (savings-and-loan).” The Resolution Trust Corp. also filed suit. In 1992 Jones Day paid $16 million to settle the FDIC suit. The same year it paid $24 million to settle allegations that Jones Day has duped consumers into buying “doomed” American Continental bonds.
Overtime, given changes in staff and strategic bent, Jones Day would represent clients “that at times conflicted with the firm’s values.” One example involved the Center to Prevent Handgun Violence (later known as the Brady Center to Prevent Gun Violence) which the company had presented “pro bono” since around 1990. Then in 1999 gunmaker Colt was sued by state and local government for damage caused by the AR-15 assault weapon. Jones Day took the case and won. In 2004, the “American Lawyer” gave the company an award, noting: “From handguns to tobacco, Jones Day defends the powerfully damned and the damned powerful.”
This leitmotif provided by “American Lawyer” seemed to anticipate the chapters to follow, among them: “Rogue Lawyers, “Psychological Combat,” “Dirty, Dirty, Dirty,” “Lurching to the Right,” and more. Perhaps most telling, in the business and structural sense, was the law firm’s lurch to the right. In May 2014 Jones Day hired Don McGahn, late of the FEC, and others “to create a new political and election law practice focused on advising Republicans.”
The 2016 presidential election was close at hand. Jones Day agreed to be the major sponsor of the GOP convention, pledging $1.5 million and offering the firm top partner to co-chair the event. New hire McGahn agreed to advise Trump and his fledgling campaign. McGahn would have chats with head of the Federalist Society about judges Trump might nominate if elected. The subsequent list of candidates reassured a lot of Republicans. Jones Day was fundamental to Trump’s victory. Not surprisingly, Jones Day “would have its representatives implanted in two of the most powerful legal jobs in the U.S. government: solicitor general and White House counsel.” Not all of the Trump World were happy with Jones Day “stocking the upper ranks of the government with corporate lawyers.”
The work of Jones Day was not over. There were the investigations into Russian election interference; the work of the special counsel, Robert Mueller; and the campaign’s relationship with Cambridge Analytica. Then there was Don McGahn’s plan to spend his White House time filling the judiciary with Federalist Society judges as well as dismantling the “administrative state.” And there were Trump’s legal problems.
The remainder the book seems to play out as we witnessed on television, although darker and more dangerous.
“Servants of the Damned” is a demanding and instructive book; an opportunity to re-vision a momentous time in American legal, social and political history. There are many solid, readable books about Trump but none seem to so thoroughly examine the structural damage to the institutions of our democracy as this volume. A most worthy read.
