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Op-Ed | The American Prospect | January 13, 2021

Biden Must Close the Revolving Door Between BigLaw and Government

2020 Election/TransitionBigLawDepartment of JusticeExecutive BranchRevolving Door
Biden Must Close the Revolving Door Between BigLaw and Government

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This week, Politico reported that Susan Davies, a corporate antitrust lawyer who has represented Facebook, was a leading contender to head Biden’s Department of Justice Antitrust Division. This news came on the heels of reports that David Frederick, a corporate lawyer who has defended oil giant Royal Dutch Shell, was under consideration to become Biden’s solicitor general. These stories have disturbed many who hope (particularly after the Democrats’ Senate victories in Georgia) that the Biden administration will represent a shift away from the corruption and self-dealing of the Trump administration.

Davies and Frederick are not the first corporate lawyers rumored to be joining the Biden team. Their private-sector work and potential nominations are emblematic of a deeper divide in the Democratic Party, seen in the criticism of figures like Neal Katyal, a well-known Democratic figure who recently fought to shield corporations for abetting child slavery while representing Nestlé in the Supreme Court. This divide boils down to one question: Should a lawyer’s previous clients be a factor in whether or not they receive a political appointment in the new administration?

Quite simply, the answer is yes. High-level legal appointees, including Biden’s picks for attorney general, deputy attorneys general, and solicitor general, will be some of the most powerful people in the nation, and their decisions in these roles will have a wide-ranging impact on the lives of the American people. These individuals should therefore be held to the highest ethical standards and face the strictest scrutiny during their hiring process. Their integrity and commitment to the public good should be impeccable.

While progressive groups have called on Biden to scrutinize potential appointees’ ties to the corporate sector, many corporate lawyers and Obama alumni have pushed back against these efforts. They claim that judging lawyers based on their clients is not merely unfair but threatens our entire legal system.

Eric Holder articulated the latest version of this argument in an article published last month in which he comes to the defense of Katyal. Holder claims that just as Katyal should not be held accountable for the crimes committed by the clients he defended in Guantanamo Bay, he should be immune from criticism of his defense of Nestlé’s actions.

This argument is not a new one. When faced with criticism over their clients, elite lawyers have often relied on the landmark 1963 Supreme Court decision Gideon v. Wainwright to claim that lawyers should not be responsible for the clients they choose to take on.

But these arguments obscure the intent of Gideon. In the case, Clarence Earl Gideon, an indigent man accused of robbery, petitioned the Supreme Court arguing the judge overseeing his trial failed to provide him with an attorney, thereby violating his Sixth Amendment right to counsel. The opinion states that courts must provide defendants facing jail time with legal representation if they cannot afford it. The importance of Gideon cannot be overstated; the ruling transformed our legal system into one that, while far from perfect, is much more equitable than before.

Attorneys who rely on Gideon to defend their choice of corporate clients have drawn from the case a larger principle: that everybody, not just criminal defendants, is entitled to legal representation. This greatly misrepresents the legal status quo in this country, as there is no existing right to counsel in civil cases—something that has grave consequences for the millions of Americans who go unrepresented in eviction proceedings, unemployment insurance appeals, and more. But from the perspective of lawyers like Holder, Gideon went even further, to the point that it shields attorneys from scrutiny over whom they choose to represent. According to Holder, if lawyers were to face criticism over their clients’ conduct, they might no longer be willing to represent these clients. These clients would then be deprived of their Sixth Amendment rights as articulated in Gideon.

These arguments gravely misunderstand the central purpose of Gideon, which is that the state must provide counsel to those defendants who could not otherwise afford itGideon was not intended to shield attorneys who freely choose to represent massive corporations like Nestlé, which have the resources to hire the best and the most expensive lawyers, from public scrutiny. Nor was it intended to justify the decisions made by lawyers who opt to make millions of dollars a year in the corporate sector. Holder’s argument fails to understand the distinction between a corporate lawyer charging a client upwards of $1,000 per hour and a public defender barely making ends meet to provide constitutional protection to defendants who otherwise could not afford a lawyer.

Indeed, the posture by which BigLaw partners come to represent Fortune 500 companies is nothing like the process by which public defenders are assigned to clients. Corporations don’t beg and plead for representation—to the contrary, BigLaw firms wheedle and strategize how to attract clients like Nestlé, Facebook, and Shell. Lawyers seek corporate clients, and the ability to attract them is rewarded richly by law firms. That reality is the exact opposite of the situation facing indigent criminal defendants. And one of the most effective ways to appeal to a potential corporate client is to flash high-level “progressive” or Democratic Party bona fides. Katyal and Frederick don’t get these cases despite their progressive ties but because corporate arguments are more persuasive when made by people who don’t come off the Federalist Society assembly line.

Holder’s second argument is that just because lawyers receive massive fees from corporations and defend their actions in court, it does not mean they personally endorse these actions. From Holder’s perspective, Katyal, in his defense of Nestlé, was simply interpreting statutory law, not defending Nestlé’s child labor practices.

This argument is a frighteningly familiar and flawed one. According to its proponents, these lawyers are simply “doing their job” or “following orders” and should therefore not face criticism for their role in defending or abetting heinous acts. Lawyers, of course, are not party to the crimes or violations committed by their clients. But they are responsible for whom they select to represent, what cases they choose to take on, and how much they charge. Lawyers like Katyal do have a role in legitimizing and legalizing the conduct of their clients. These decisions are theirs and theirs alone and are not protected from public scrutiny.

Further, suggesting that arguing cases in the Supreme Court is merely interpreting statutes attempts to draw an artificial distinction between judicial interpretations of the law and the lives of those affected by the law. Supreme Court decisions aren’t mere academic exercises: They decide who is held accountable for harm caused, and who bears the cost of both quantifiable and unquantifiable damage done. If Katyal prevails in his most recent argument at the Supreme Court, he himself concedes that corporations would be free to engage in illegal conduct outside of the United States without fear of being held liable in the U.S. Real people would be harmed, and the corporations who caused that harm would face no consequence. Katyal’s argument may have been technical, as Holder claims, but “technical” is hardly a synonym for “inconsequential.”

Particularly for those attorneys seeking to serve in public office, the identities of the clients they choose to represent are vital pieces of information when seeking to understand whether or not they are fully committed to serving the public interest. Gideon does not protect attorneys from scrutiny for the choices they make at the apex of their careers.

In the aftermath of the Trump administration and the violent neofascist insurrection in the Capitol last week, the commitment to ethics has become even more imperative. Trump filled his administration with industry-connected lawyers and lobbyists, abusing the executive branch to make his friends and allies richer. According to a report by ProPublica, he hired a lobbyist for every 14 political appointments made.

Just as concerning as the lobbyists and executives Trump appointed are the appointees he tapped from BigLaw firms. Across the executive branch, Trump selected dozens of corporate lawyers to lead agencies and departments tasked with overseeing and regulating their previous clients. Trump selected his team of trade negotiators from the offices of Skadden, Arps and King & Spalding, both corporate law firms. Heath Tarbert, Trump’s pick to lead the Commodity Futures Trading Commission, one of the bodies tasked with regulating Wall Street, had led the bank regulatory group at the firm of Allen & Overy, where he represented the institutions he was tasked by Trump with regulating.

According to a report by Public Citizen, Trump tapped corporate lawyers to lead nearly every major division at the Department of Justice. Solicitor general? A lawyer who’d represented the tobacco industry. Head of the DOJ Civil Rights Division? Counsel to corporations fighting against discrimination charges. Head of the DOJ Environment and Natural Resources Division? Attorney to BP during the 2010 Deepwater Horizon disaster (a colleague of Susan Davies at Kirkland & Ellis).

It was not just the Trump administration that selected its top legal appointees from the halls of the corporate law firms. Holder himself joined the Obama administration from Covington & Burling, whose clients include Citigroup, JPMorgan, and Wells Fargo. He became the subject of public scrutiny when he was first appointed to the role of attorney general, due to his active representation of Chiquita Brands, a U.S.-based company that had admitted to funding terrorists in Colombia. During his time as attorney general, Holder refused to prosecute big banks, whose reckless and fraudulent activities helped cause the 2008 financial crisis. Unsurprisingly, when Holder left office, Covington welcomed him back with open arms, giving him his old office back.

Obama’s pick to head the Securities and Exchange Commission, Mary Jo White, accepted a $2 million lump sum from her previous employer, Debevoise & Plimpton, a major Wall Street law firm, right before her nomination. During her tenure as SEC chair, White slow-walked the implementation of Dodd-Frank regulations meant to rein in the financial industry, and failed to effectively enforce these rules when they were finally put into place.

It is not simply conflicts of interests that arise when corporate lawyers revolve back and forth between BigLaw and the federal government. This revolving door also undermines faith in government, producing a skepticism and cynicism that yields both low levels of voting and bad electoral outcomes. Moreover, appointing corporate actors to high-level government jobs is highly unpopular, as recent polling conducted by Data for Progress demonstrates. The poll found a majority of Americans oppose having corporate executives and lobbyists join the Biden administration.

Unfortunately, the Biden team is already showing signs of following his predecessors’ example with this latest news about Frederick and Davies.

Biden framed his campaign as “Scranton vs. Park Avenue,” promising an end to corporate government. But in order to do that, Biden must seal the revolving door between corporate law firms and the federal government. There is no shortage of brilliant attorneys who have dedicated their careers to serving the public interest and fighting for social justice who are ready to do that work within the new administration.

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