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Last month, former Biden press secretary Jen Psaki had a familiar face on her new MSNBC show: former acting Solicitor General Neal Katyal. In an extremely chummy interview, Katyal (fresh off a harrowing trip to Burning Man) dished out snarky criticism of Trump’s suggestion that outgoing chairman of the Joint Chiefs Mark Milley should be executed, saying “I don’t think Mr. Bone Spurs is in any position to criticize a member of our military.”
Katyal is a regular on the network, boasting the title of “MSNBC Legal Analyst” and frequently appearing on shows like Morning Joe and The Last Word to opine on Trump’s mounting legal troubles. Katyal’s appearances often involve him taking potshots at Trump while touting his own work arguing against GOP power-grabs in pivotal Supreme Court cases on voting rights, gerrymandering, and the independent state legislature theory.
To both casual and loyal MSNBC watchers, Katyal appears to be a trustworthy expert on protecting democracy from right-wing attacks—a “Resistance hero” who is standing up against Trump’s agenda.
That couldn’t be farther from the truth.
Katyal is no anti-Trump champion of democracy—he is a shameless defender of oligarchy. As a corporate lawyer at BigLaw giant Hogan Lovells, Katyal has protected the same anti-democratic wealthy elites that Donald Trump spent his presidency catering to. He has been more than eager to cash checks from powerful right-wing corporate interests to argue high-stakes Supreme Court cases on their behalf—and rarely eager to talk about them in his media appearances.
As The Lever’s Julia Rock recently reported, Katyal is currently urging the Supreme Court—at the behest of a corporate lobbyist-funded advocacy group—to “elicit a broad ruling [in Moore v. United States] that outlaws all wealth taxes.” Katyal’s stance is at odds with the Biden administration, which has called for a wealth tax to combat inequality and fund vital economic and social programs. If Katyal prevails, the Supreme Court could make such a wealth tax illegal before Democrats even get a chance to enact it into law.
Moore is far from the only time Katyal has worked to defend corporate power against the public interest. In Nestle v. Doe (2021), Katyal made one of the most appalling Supreme Court arguments of recent memory—arguing that Nestle should not be held liable for its use of child slave labor in Ivory Coast because the company that supplied Zyklon B to the Nazis was never indicted at Nuremberg. The Court sided with Katyal’s monstrous argument by an 8-1 margin.
Cases like Moore and Nestle are the norm, not the exception, to Katyal’s litigation work:
- Johnson & Johnson Cancer Lawsuits (2022): Katyal tried to help Johnson & Johnson evade liability lawsuits from tens of thousands of people who have argued the company’s talc-based baby powder gave them various types of cancer. Katyal’s $2,465 hourly salary has drawn particular focus in the case.
- Epic Systems v. Lewis (2018): Katyal argued against workers’ ability to bring class-action lawsuits against their employers, ultimately notching a 5-4 Supreme Court victory for his clients that Hogan Lovells lauded as a “major win for employers”.
- Bank of America v. City Of Miami (2017): Katyal defended Bank of America against a lawsuit filed by the city of Miami claiming the company “engaged in predatory lending practices that targeted minorities for higher-risk loans, which resulted in high rates of default and caused financial harm to the city.”
- Bristol-Myers Squibb Co. v. Superior Court (2017): Katyal defended pharma giant Bristol-Myers Squibb against liability complaints that the company’s anti-blood-clotting drug Plavix had caused severe injury to users.
As Julia Rock notes, Katyal is also seen as a favorite litigator by corporate interests because of his role in rallying liberal support for confirmation of three of the Court’s conservative justices. In a 2017 New York Times op-ed that touted his Obama administration credentials, Katyal urged liberals to support the confirmation of Trump SCOTUS nominee Neil Gorsuch. In 2018, Katyal praised Trump nominee Brett Kavanaugh as “hard for anyone […] to say a bad word about”—praise that was directly cited by Republicans in Kavanaugh’s confirmation hearing. And in 2020, Katyal said of Trump nominee Amy Coney Barrett, “I think you’ll hear many Democrats acknowledge she’s a brilliant person, she’s a lovely person.” Katyal has dismissed criticism that his active role as Supreme Court litigator posed a conflict of interest in his advocacy for the confirmation of these three justices, even though some (like Gorsuch in Epic Systems) have gone on to cast deciding votes in cases argued by Katyal.
Katyal’s defenders have deployed an extraordinarily cynical argument to justify his selling out—that every corporation is entitled to the best legal defense team, and no lawyer should be personally criticized for arguments made on behalf of their clients. The New Republic’s Alex Pareene did an excellent job rebutting these dishonest claims in a 2020 piece entitled “Neal Katyal and the Depravity of Big Law”:
Nothing in our “legal system” or Constitution says Nestle and Cargill deserve “the best advocacy” when it comes to civil claims. But the question of whether they “deserve” it in some ethical sense is completely moot: They will always receive it, because they can afford it. Once you establish that simple fact, it’s clear that the attorneys representing these corporations are not acting out of some high-minded commitment to a central constitutional principle; they are simply representing Nestle for a lot of money. They have chosen to go into corporate law and, as Katyal consistently has throughout his career, make arguments that favor large corporations at the expense of everyone else. The point is not that Katyal should be disbarred or something for representing a client. The point is that the cases Katyal chooses to take, the arguments he chooses to make, even the firm he chooses to work for, all speak to his values. He cannot separate his politics, whatever he thinks they are, and whatever he wants everyone else to think they are, from his decision to defend Nestle against the threat of potential lawsuits from enslaved children. That is a statement about how one believes the world should be organized and on whose behalf the legal system should operate.
In a just world, someone like Katyal would never be welcomed as a respected guest on national news programs. But in a political news landscape dominated by corporate-owned media outlets and revolving-door personalities (including Psaki herself), it is no surprise that Katyal is regularly welcomed back with open arms and never asked tough questions.
At the very least, if MSNBC wants to keep inviting Neal Katyal back on, they should book him on a show whose host will push back and ask him about his appalling corporate legal work—say Mehdi Hasan or Chris Hayes? Perhaps they can even book Katyal with Congressman Ro Khanna, who has offered to participate in a live on-air debate with Katyal on the wealth tax.
In the meantime, Katyal (and any of his defenders who insist he is democracy’s greatest ally) would do well to brush up on their Supreme Court history. As Justice Louis Brandeis once said, “We can have democracy in this country, or we can have great wealth concentrated in the hands of a few, but we can’t have both.”