Why Do Lawyers Get Away With Things They Shouldn’t?
An interview with the NYT’s David Enrich about his new book, Servants of the Damned
As I’m in the midst now of making three different podcasts for Audible that have to do with the complexities of the rule of law, the courts, and controversial high-profile lawyers, I was intrigued when David Enrich, whose work I have long admired, sent me a copy of his new book, Servants of the Damned: Giant Law Firms, Donald Trump, and the Corruption of Justice.
In the book, Enrich—the New York Times’ Business Investigations Editor—looks at Jones Day, one of the world’s largest law firms, and the ways in which, he argues, the firm has become corrupted, a shield for corporate interests and also Donald Trump. Yet, other than Enrich, no one has held Jones Day to account! Why is it that lawyers and law firms often escape unscathed from situations in which the rest of us might be held to account? It’s a pressing, important question.
You can read our conversation below.
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WARD: “Servants of the Damned: Giant Law Firms, Donald Trump and the Corruption of Justice.” Seems like it's going to be a pretty juicy book and long overdue. And I completely agree with you that the legal profession is a very underreported subject. We talk about the corruption on Wall Street, you and I both; we talk about corruption in Washington, and we leave the lawyers out of it for the most part. I'm spending my time making three different podcasts for Audible, all that touch on the legal profession and corruption therein and why that is something that there's not a lot of sunlight on. So tell me what gave you the idea to write about this and sort of what your narrative then is.
ENRICH: I've been covering business and [the] intersection of business and politics for almost 20 years now. And for every big scandal that hits, there is a giant law firm—often more than one giant law firm—but there is at least one giant law firm behind every scandal, whether it is working to clean up a mess or [to] control information that governments receive or [to] fend off angry victims in court. And, as a journalist, I've kind of had a front row seat to a lot of the tactics that big powerful law firms use in trying to manage the way that the media perceive these scandals. And I've always been fascinated by how that happens.
WARD: I think that you and I are interested in similar topics, but it is true that, as journalists, one of the first things you do is you make the lawyers your best friends.
ENRICH: <laughs> Yeah. And you were just alluding earlier to this question of why this issue in general hasn't been talked about very much in the mainstream media; certainly the law firms don't get covered very aggressively. And I think that that's because of this phenomenon, which is that journalists, deliberately or not, by default kind of shy away from doing things that are going to upset their sources. And, I mean, I've witnessed this myself, and I see it in myself sometimes, and I think it's troubling. [W]hen you have a great source—and lawyers at big firms are often some of the best sources—the last thing in the world you want to do is write an article that is going to upset them.
And so we tend to view these law firms as kind of accessories to the fact, and they operate in the shadows. We don't view them in the mainstream media as the main areas of interest. And I think that is exactly why so many partners at big law firms are so helpful to journalists. They're not doing it because they like talking to us. They're not doing it necessarily even because they think it helps their clients. They're doing it because, I think, in large part, it helps keep us off their trail. And it means that there's a very powerful incentive for a great number of journalists, myself included over the years, to really shy away from aggressively covering the legal industry like we would cover any other industry or any other big, powerful actor that should be held accountable for what they do.
WARD: A hundred percent agree with that. So tell me about Servants of the Damned. I know you focused on one law firm in particular (I can guess why). So tell us about that. What brought you to Jones Day? Walk me through that a bit.
ENRICH: So I've been fascinated with law firms, as I was saying, for like a very long time, and I've kind of been looking for the right vehicle to turn it into a book and had not yet found it. And then in the fall of 2020, before and after the election, I was really fascinated by the [way] that Jones Day—which is this big kind of mid-market, not particularly super-elite law firm—had all of a sudden become very much entangled with and immersed in Trump World. I knew a bunch of the lawyers there over the years from just talking to them about the industries that they worked in. And so I was really startled by the fact that by the prominence of Jones Day in representing Trump and representing the Republican party, including some of the election cases.
And so I started digging into them, and their backstory is really interesting—at least it was to me and I hope it will be to readers because they, in many ways, embody this great transformation that's occurred in the legal industry over the past 40 or 50 years. I mean, not that long ago, lawyers who worked at big law firms did not consider themselves to be part of an industry. They considered the legal profession to be a profession where they had to be kind of public-spirited officers of the court with much more of an allegiance to kind of truth and justice than to actually maximizing their bottom line. And starting in the late seventies through the eighties into the nineties, that mentality really dramatically changed. And the law profession became the law industry, and the mentalities of a great many of the lawyers and law firms radically changed. And that is what has led to a moment where we see big corporate law firms taking on cases and clients that are very controversial and then using tactics within those representations that are very controversial. So Jones Day to me ended up representing this kind perfect encapsulation of not only how a big law firm will get entangled with Trump but how the entire legal industry got entangled with trying to seek out profits above everything else.
WARD: I'm looking at the back of your book, and obviously Don McGahn, Trump's White House counsel, is rather famously at Jones Day. There are quite lots of references to him in this book.
ENRICH: It's not just McGahn by the way. I mean, the incredible thing about Jones Day (and I always forget that this is not that widely known, because I've been obsessed about this for the past years), but Jones Day was far and away the biggest provider of personnel to the Trump administration of any professional services firm out there. It is really unprecedented the number of people that went into very senior capacities in the Trump administration. And Don McGhan is obviously the most famous, but Noel Francisco, once and future Jones Day partner, became the solicitor general in the Trump Justice Department. There were deputy attorney generals, associate attorney generals up and down the food chain who came from Jones Day and then returned to Jones Day. In the white house, there were probably eight or 10 people that McGann surrounded himself in the White House Counsel’s office and elsewhere. They had commissioners on the governing bodies regulating energy markets, consumer products. They were at the commerce department, deeply involved in the debate over the 2020 census and the citizenship question. The list goes on and on and on. And so when I say the Jones Day was immersed with Trump and entangled with Trump, it really was that. The law firm in many ways became the primary source of elite talent for the Trump administration. And it became the primary landing ground for that talent as the Trump administration disintegrated.
WARD: You've got a lot about the ties to Trump in here. You also talk about the fact that they've represented the drug industry, gun manufacturers, Big Tobacco, the Catholic Church trying shield itself from allegations of sexual abuse, Russian oligarchs, Fox News… I mean, it's a pretty big, long list.
ENRICH: The thing I tried to avoid in this book is just falling into the trap of saying, Look, I don't like this client or that client, therefore you shouldn't represent them. I mean, my personal preferences or politics are kind of irrelevant. And I do think there's a strong argument to be made that, with some exceptions, individuals and even companies that are facing criminal prosecution—or, in some cases, even facing important civil cases—deserve high-quality legal talent. So I've tried for the most part to confine most of the book to looking at not just cases or situations where they're representing polarizing companies like Purdue Pharma or RJR or gun companies, but to really look at those cases when Jones Day, in the context of representing these polarizing companies, has resorted to tactics and strategies that I think many people would regard as improper or at least questionable.
WARD: Right. So this brings me to the real reason that I find this subject so fascinating (and hopefully your readers will too): There are so many instances where lawyers do things that if you or I did them, I think they would be considered improper at best. Why did they get away with it? I mean, what did you learn in the reporting of this?
ENRICH: Well, I think there are two main things I would say to that. And the first is that the legal industry in general has done a really good job of shielding itself not only from criticism but from scrutiny in general by peddling the notion that lawyers cannot be held responsible for the conduct of their clients. And I think, on its face, there's a lot of truth to that argument, right? Like, even the most repugnant murderer deserves a robust criminal defense. And I think we can all agree on that. There's no question that that’s the case constitutionally. But that does not mean that the biggest, baddest company has an unquestionable right to the best legal counsel when it's trying to find ways to undercut regulations or avoid tactics or bully whistleblowers or hide evidence of wrongdoing from the government and on and on and on.
And so I think the legal industry has done a really good job over the years of just preventing people from asking these questions in the first place—because to do so is kind of an affront the American system of justice. I spend quite a bit of time in the book doing my best to really pick that argument apart. And I think there are a lot of holes in that argument.
I think the second thing is that there's been a wholesale effort to discredit and to diminish some of the bodies that would normally be providing a check on bad behavior—in particular, the American Bar Association. Jones Day has done a lot of really good, valuable, probably life-saving pro bono work over the years, but a number of their lawyers—including some of the most senior people at the firm who are almost uniformly pretty conservative—[are], instead of doing the type of pro bono work that, to me, seemed like the natural stuff like representing immigrants who are in need or people who are really struggling or organizations that are short on cash, what they've done instead is represented, for free, right-wing think thinks, which all tend to be very well-funded by big companies and political causes. And, in the course of doing the reporting and fact checking for the book, I went to everyone named and kind of drilled them a little bit on, So what makes this work pro bono?And obviously you're not charging for it, but is there something beyond that that makes this pro bono because it does not seem to adhere to the American Bar Association guidelines on what constitutes pro bono work. And a number of them argued that we shouldn't be paying attention to the ABA. And, essentially, the argument basically boiled down to—maybe not quite these words—but that the ABA is just kind of a body of liberal trial lawyers that we shouldn't be looking to them as the arbiter of what's right and what’s not.
And you also see this when it comes to the nomination of judges to federal and state courts. Traditionally, the ABA has provided the Senate with a “yes” or “no” qualified or unqualified recommendation for judges who have been nominated. And in a number of cases, Don McGhan, when he went to the White House, was the person who was primarily responsible for selecting the judges that President Trump would nominate. And a number of these people—including at least one who was, until she joined a court, a Jones Day lawyer—they were deemed unqualified by the ABA. And this kind of Republican conservative camp, just really disdained the ABA’s view of these things. And it really made a concerted effort to convince people that it's not worth paying attention to.
WARD: So there is no meaningful regulatory body.
WARD: That's pretty frightening.
ENRICH: Yeah, it's interesting. I mean, at least some other countries, including the UK, have bodies that are responsible for regulating the legal profession that doesn't exist in the U.S. And I spent a little bit of time thinking about and talking to people about whether that was plausible or a good idea in the U.S., and the consensus seems to be that, regardless of whether that's a good idea or not, it's completely impractical and unlikely to ever happen here because of this idea that the legal industry espouses that they are really beyond reproach and really should be considered beyond reproach. The industry has done such an amazingly good job at really shielding itself from outside scrutiny and criticism, including by the media, that I think it's largely viewed as untouchable.
WARD: Well, that is very frightening. But last question, David: What was the most surprising thing you learned reporting this?
ENRICH: I think the most surprising thing was really just seeing first-hand some of the tactics that Jones Day and the legal industry in general used. I kind of knew some of the old stories about, you know, people being intimidated and people not wanting to testify because they were afraid the big, bad law firm would come get them. But I just figured that that was ancient history and that, in this day and age, that kind of stuff would not be happening. And I was wrong. And I just found it really surprising to see. And, again, this isn't just about Jones Day. But I identified a number of cases with Jones Day—both externally when they were dealing with plaintiffs or witnesses, or even in some cases with some of their own employees—where the law firm engaged in what critics have told me were really borderline—and in some cases, as I said, most lay people would consider improper—tactics to get what they wanted. And I think this is a pattern that plays out largely behind-the-scenes at many other law firms in America.
WARD: Wow. Well, I can't wait to dive in. David. Thank you so much.
ENRICH: My pleasure.
Comment from Jones Day's black manager of US operations: https://www.wsj.com/articles/first-smear-all-the-lawyers-jones-day-clients-political-agenda-narrative-legal-representation-regulations-anonymous-sources-11663767476?mod=opinion_lead_pos6
As someone very familiar with the legal profession, the ABA and Jones Day, I found this interview to be astonishing. That someone could devote so much time to a subject and be so totally off base is stunning. He has no comprehension (at least based on the interview, and I will read the book out of curiosity) of what drives law firms (the larger and smaller ones), of the different niches in the industry, about why it isn't regulated, about the role of the ABA (which is completely political and, if anything, embodies all of the ill attributes the author cites, more than any single law firm), and even the ills of the part of the industry that destroys innocent victims of sloppy journalism.
If there is any quasi-profession that merits investigation for its immense harm to the country, it is journalism -- totally unregulated, zero barriers to entry, often either uneducated or largely uneducated writers with passionate views on fields about which they know little) with TV news having an immense and negative impact on voting -- more than any other force -- yet how many journalists are willing to investigate journalism and its corruption through protecting sources, etc?
What really "triggers" Enrich is Trump. But that's hardly news. We could all write angry books about his enablers. But McGhan is one who turned on him when bad issues were investigated. So Enrich blames a tiny handful of Jones Day's 2500 lawyers because the tiny handful worked for Trump and appoints judges he doesn't like. Has he seen the judges being appointed by Biden? Lawyers have been, for reasons good and bad, mostly good, going in and out of government for over a century, starting heavily with FDR. Why waste time on Jones Day when you have Covington & Burling, which has the largest practice of influence on government agencies (and where Eric Holder is)? Retro-prediction: if Jones Day had sent the same number of lawyers to the Obama administration and played the same role in Obama's judicial appointments, his book would not have been written. Or certainly would not have focused on Jones Day.
Enrich, were he being graded through the lens of reality, gets a D.